In King v DST Systems ( 2018 ONSC 533} Dow J.was faced with an ESA termination clause that referred to ” pay” but did not refer to benefits. Moreover the clause also said ” and you shall have no further or other entitlement in that regard”,
The Court said as follows:
“The failure to specify all types of remuneration available as part of severance due and owing is contrary to my understanding of Justice Laskin’s analysis in Wood v. Fred Deeley Imports Ltd., supra. I am reinforced in this understanding by the defendant’s acknowledgment they did not provide for all the types of remuneration it was providing to the plaintiff as part of the payment of the two weeks’ notice.”
His last sentence is somewhat concerning because it seems to imply that if the employer had in fact provided benefits over the ESA notice period that that would somehow remedy the situation. Wood v Fred Deeley however makes it clear however that we are only to look at the wording of the contract, not the actions or inactions of the Employer at the time of the discharge. This was intended to disallow the Employer from ” bootstrapping” an illegal agreement into a lawful termination agreement by filling in the deficiencies at the time of discharge.
I have not set out the actual contract language as the decision did not do so. It certainly would be better for the development of the law if judges set out the full clause under review so that the reader would know exactly what language was either invalidated or upheld.