Employer Tries to Avoid 2 Year Termination Clause by Arguing That its Own Contract Violated the ESA

In Roberts v Zoomermedia Limited ( 2017 ONCA 327) the Plaintiff was found to be entitled to be paid two years lump severance pay upon the expiry of the contract as set out in the contract.

Among the arguments made by the Employer, it argued that because the contract disentitled the employee to STD and LTD during the 8 week termination pay period under the ESA, that the entire termination clause should be held to be null and void. The effect of this would be that the Plaintiff would simply get his common law reasonable notice, which would never be as good as his two year lump sum severance entitlement under the contract.

The Court of Appeal first found that the issue was not necessary to decide as the clause in question was really the actual dispute , but in any event , they had  this to say about the Employer’s some what novel argument.

Effectively, the appellant argues that because it did not agree to provide the respondent with all of his statutory entitlements – entitlements that were conditional on an early termination, an event which never occurred – the respondent must therefore forfeit his contractual entitlements: contractual entitlements that are far greater than what either the ESA or the common law would have provided. This would be a perverse application of a statute that is intended to protect the interests of employees, and I would reject it.