Use of “and/or” Renders ESA Termination Clause Illegal:

In Quesnelle v. Camus Hydronics Ltd. ( 2022 ONSC 6156 ) Justice Charney was faced with the following termination clause :

“During your Probation Period and afterwards, you will be entitled only to notice of termination, termination pay and/or severance pay as required by the Ontario¬†Employment Standards Act.”

The Judge found that this clause contravened the ESA for the following reasons:

1. The ESA requires the payment of both termination pay AND severance pay, not one or the other . Th employer probably meant to say that severance pay would only be paid if the underlying conditions were met ( 5 years service an a payroll in excess of 2.5 million dollars) , but they did not say it properly.

2. The clause does not include for the provision of benefits during the termination period and by inserting the word “only” it cannot be inferred that they intended to include benefits.

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