July 2025 – Barry Fisher's Employment Law Blog

“At Any Time For Any Reason ” Held Not to Invalidate a Termination Clause:

In Li v Wayfair Canada Inc, ( 2025 ONSC 2959) Justice Dow had a no just cause termination clause which provided the following:

“After your probationary period concludes, in the absence of Cause, the Company may terminate your employment at any time and for any reason” which goes on to state “by providing you with only the minimum statutory amount of written notice required by the ESA or by paying you the minimal amount of statutory termination pay in lieu of notice required by the ESA, or a combination of both, as well as paying statutory severance pay required by the ESA, providing benefits continuance for the requisite minimum statutory period under the ESA and all other outstanding entitlements, if any, owing under the ESA”.

There are two decisions of Ontario Courts which have held that words of that nature violate the ESA because they would allow for a termination for reasons that are prohibited by the sections of the ESA relating to statutory leaves and anti reprisal. These decisions (Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029 and Baker v. Van Dolder ‘s Home Team Inc., 2025 ONSC 952.) refer to the policy reasons for this finding.

However Mr Justice Dow found that ” the wording in this employment contract to be distinguishable to that contained in that case and thus requires a different conclusion.”

The Judge however gave no reason for why this apparently different wording should lead to a different conclusion.

He went on to find that the termination clause was enforceable.

My Comment:

In Dufault the wording was as follows:

The Township may at its sole discretion and without cause, terminate this Agreement and the Employee’s employment thereunder at any time upon giving to the Employee written notice as follows:

In Baker the wording was as follows:

Termination without cause: we may terminate your employment at any time, without just cause,

Both Dufault and Baker say that the use of ” at any time” breaches the ESA. This is same wording as the present case.

Dufault says that the use of ” at its sole discretion ” breaches the ESA . In the present case they use the words ” for any reason”.

Please someone explain to me the difference between ” at its sole discretion” v “for any reason”.

It strikes me as a difference without a distinction.

If you like a copy of this case, email me at barry@barryfisher.ca

To book a mediation, go to www.barryfisher.ca

For access to the Wrongful Dismissal Database go to www.wddonline.ca

” At Any Time” Does Not Not Invalidate a Termination Clause But Failure to Reconfirm Benefits Does :

In Jones v. Strides Toronto, 2025 ONSC 2482, Justice Moore was faced with this termination clause :

Termination of Employment:

The Organization may terminate your employment without cause at any time upon providing you with the following:

• Advance notice, or payment in lieu, in accordance with the Employment Standards Act, 2000 (“ESA”) and any other payments required by such legislation including severance pay, and as well as continuing to provide benefits (which includes participation in the group RRSP) during the applicable statutory notice period; plus

• An additional 1-week advance notice of termination or pay in lieu thereof for each completed year of each completed month of employment with the Organization in an incomplete year.

Notwithstanding the above, the Organization may terminate your employment at any time, without notice or pay in lieu thereof or severance pay, for willful misconduct, disobedience or willful neglect of duty that is not trivial and has not be condoned by the Organization. If your employment is terminated for conduct that amounts to just cause at common law but not willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the Organization, you will receive those amounts set out in (a) above but you will not receive the amounts in (b) above. (emphasis added)

There were two attacks on this clause:

At Any Time

In the case of Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029(“Dufault”). the relevant clause had two components; ” at any time ” and “in the employer’s sole discretion” . The Court found as follows;

I find that the Dufault decision does not stand for the proposition that the words “at any time” divorced from “sole discretion” are improper in an employment contract. I do not find that these words in the termination clause in this case bring it into conflict with the ESA and make it unenforceable.

My Comment:

Nowhere in the decision does the Court reference the recent case of Justice Sproat in Baker v. Van Dolder’s Home Team Inc., 2025 ONSC 952 in which it was held that the use of the phrase ” at any time ” alone is fatal to the enforceability of the termination provision.

Failure to Repeat the Provision of Benefits :

This three tier clause seems to have become popular in which the termination clause provides for three distinct outcomes :

If there is wilful misconduct you get nothing .
If there is not wilful misconduct but there is just cause you only get the ESA minimums
If there is neither ( without cause ) then you get ESA plus something extra.

The attack on the clause in this case was quite ingenious. The clause provided that in a just cause but not wilful misconduct situation ( #2) that you would receive the ” amounts ” set out in the first clause but not the secound clause with the extra payment.

The Judge noted that the contract only referred to receiving ” amounts ” and did not refer to the other obligation to ” continuing to provide benefits” . There was a further clause which stated:

“By signing below, you agree that the forgoing is your full entitlement upon termination of employment pursuant to the common law and employment standards legislation, and that there is no further amount or obligation owing upon termination,”

The Judge therefore found there was a potential violation of section 60(1)(a) of the ESA which prohibits reducing or altering any term of employment during the statutory notice period.

The Court therefore found that the termination clause was illegal and awarded common law notice of four months.

My Comment:

The ESA does not require the employer to actually provide the benefits during the statutory notice period, it only requires that they pay the insurance premiums to the insurance company to provide those benefits:

Paragraph 60.(1)( c) of the ESA:

60 (1) During a notice period under section 57 or 58, the employer,

(c) shall continue to make whatever benefit plan contributions would be required to be made in order to maintain the employee’s benefits under the plan until the end of the notice period. 2000, c. 41, s. 60 (1).

And see also :

61 (1) An employer may terminate the employment of an employee without notice or with less notice than is required under section 57 or 58 if the employer,

(b) continues to make whatever benefit plan contributions would be required to be made in order to maintain the benefits to which the employee would have been entitled had he or she continued to be employed during the period of notice that he or she would otherwise have been entitled to receive. 2000, c. 41, s. 61 (1); 2001, c. 9, Sched. I, s. 1 (14).

So one could argue that since the only obligation of the employer under the ESA is to pay the insurance premiums or contribution ( which of course is actual money) that it would be covered by the term in the termination clause that requires the employer to pay the ” amounts” .

If you like a copy of this case, email me at barry@barryfisher.ca

If you like to book a mediation, go to my online calendar at www.barryfisher.ca

To access the Wrongful Dismissal Database, go to www.wddonline.ca

30 Year Employee Gets Only 6 Months Notice Because He Intended to Retire in 6 Months When He Turned 65:

In Gent v. Askanda Business Services Ltd., 2025 BCSC 1278 Justice Marzari found that whereas he normally would have assigned a very long notice period because the Plaintiff had formed an intention to retire at 65 ( which was 6 months from his termination) his damages would only be for 6 months. This is even though the Judge found the Plaintiff had not expressed that desire to his employer. This is what he said :

[76] However, I must also consider Mr. Gent’s evidence that he had firm plans to retire when he turned 65, even though he had not expressed those plans specifically to Mr. Hollands. Mr. Gent testified to his reasons for having those plans, including that he was the primary caregiver for three young children, that he had moved to Langley, and that he needed to wait until he was 65 before he could qualify for CPP and OAS. He gave this testimony, in part, to support his evidence that he was not subjectively intending to retire during his conversation with Mr. Hollands in May 2020.

[77] Had Mr. Gent been less firm about his intended retirement date in his evidence, I would likely have awarded him a significant notice period. However, I do not consider that Askanda should be required to pay damages in lieu of notice after March 1, 2022, when Mr. Gent no longer intended to work or to be looking for work.

[78] Mr. Gent is entitled to be put in the same position he would have been if Askanda had not wrongfully dismissed him, and he had been given appropriate notice before the termination of his employment. However, he is not entitled to be put in a better position. This is the rare case where Mr. Gent, who had a firm intention to retire when he turned 65, and relied upon the firmness of that intention to establish that it was not his intention to retire at 63 when he discussed retirement with his employer. I find on Mr. Gent’s own evidence that he would not have worked beyond March 1, 2022, even had he been given the opportunity.

If you like a copy of this case, email me at barry@barryfisher.ca

If you like to book a mediatio, go to my online calendar at www.barryfisher.ca

For access to the Wrongful Dismissal Database, go to www.wddonline.ca

New Provider under the ESA Building Services Provider Also Responsible for Common Law Notice :

In Kondaj v. Crossbridge Condominium Services Ltd., 2025 ONSC 3905, Justice Koehnen had a situation where a 42 year old Condo Manager of 3.5 years service was terminated by the new provider when they took over the management contract.

The Plaintiff sued both the previous provider and the new provider. The Court had to figure out which employer was responsible for common law notice as it is clear from the ESA that the new provider was solely responsible for statutory termination pay and severance pay based on the employees total years of service. The new provider had in fact paid those ESA amounts.

The Judge found the new provider was also on the hook for common law notice.

This is what the Judge said

[32] In my view, interpreting the Act to impose common law notice obligations on the new service provider is more consistent with the legislator’s intention to stabilize employment than an interpretation that places the obligation on the former provider.

[33] Assigning common law notice to the new service provider creates a stronger incentive for the new provider to retain the existing on-site employees because failing to do so would expose the new provider to significant financial liability. Retaining those employees would not impose any immediate additional cost on the new provider.

[34] Conversely, placing the burden on the former provider offers little incentive for the new provider to retain staff. If anything, it may incentivize the new provider to terminate existing employees. If the new provider takes on existing employees and terminates them at some later point, there is no doubt that the new provider would be liable for common law notice. Subsection 10(2) of the Act requires notice be calculated in a way which includes the employee’s service with the old provider. If Duka were correct, the new provider could avoid that risk by simply paying statutory termination and severance, amounts that are typically much lower than common law notice, thereby avoiding the risk of common law notice if it had to terminate those employees at a later point in time.

[35] Moreover, such an arrangement could be exploited to harm competitors: a new provider could force the former provider to bear the cost of common law notice, even when the contract was lost through no fault of the old provider. This would undermine employment stability in the building services sector, an outcome clearly at odds with the legislator’s intention.

[36] Dividing liability between old and new service providers would also lead to unnecessary complexity. It would require employees to pursue the new service provider for statutory benefits and the old service provider for common law benefits. Forcing workers to assert their legal rights in multiple, deliberately complex legal regimes is inconsistent with the legislator’s intention of protecting vulnerable employees.

In a assessing a notice period of 10 months the judge took into account not only the usual Bardal factors of age, length of service and character of employment, but also relied heavily upon two other factors :

a) the poor economic market for condos in the Toronto area.

b) the fact that the Plaintiff took 11 months to find a job after applying for 170 jobs.

My Comments:

I have often wondered why if the purpose of determining reasonable notice is to determine how long a person in similar circumstances should take to get a new comparable job, and that person has diligently looked for a job, we simply don’t look at long its actually took for the Plaintiff to get a comparable job and award the notice period accordingly.

Instead we first come up with this notional notice period and only then look at. what actually happened. If the Plaintiff was unemployed longer than the notional notice period, he or she is simply out of luck. But if the Plaintiff finds a job in less time than the notional notice period, then their damages are reduced by the mitigated earnings.

This is how this Judge dealt with that issue :

[92] In my view, the cases the Plaintiff relies on more accurately reflect the factors at play in this case, especially the downturn in the condominium market in Toronto. As noted, it took the Plaintiff 11 months to find new employment. Although the amount of time it takes a plaintiff to find re-employment is not the determining factor because it would place excessive weight on the plaintiff’s subjective circumstances, at the same time, the underlying purpose of common law notice is to give the terminated employee financial support during the period that it takes to find a new position. The particular circumstances of the of the job market a plaintiff faces cannot therefore be ignored. There was no suggestion that the Plaintiff was “taking time off” after his termination. As noted earlier, I find that the Plaintiff made diligent efforts to find new employment by applying for a significant number of jobs, across a wide geographical area and at varying levels of responsibility. In my view the 10 months notice awarded in Frederiks and James is equally appropriate to award here.

I find the comments about the ” particular circumstances of the job market a plaintiff faces” particularly interesting.

Rarely do I see either lawyer lead actual relevant evidence on this issue, even something as basic as the rate of unemployment in the locality of the plaintiff at the relevant time. Perhaps there are even more detailed studies or stats on particular industries. For instance, now that we are facing the Trump tariffs in particular sectors of our economy, it would seem logical that someone is probably collecting stats on the rate of unemployment and layoffs in the car parts sector. Surely this would be helpful evidence to lead in a wrongful dismissal case as opposed to some 10 year old case when the economy may have been quite different.

I should note that the Plaintiff’s lawyer in this case was Kimberly Sebag of Lecker and Associates. My son, Matthew Fisher, is a partner in that firm.

If you would like a copy of this case, email me at barry@barryfisher.ca

To book a mediation, go to my online calendar at www.barryfisher.ca

To access the Wrongful Dismissal Database, go to www.wddonline.ca