In Ghazvini et al v. Canadian Imperial Bank Of Commerce, 2025 ONSC 5218 Justice Merritt was asked to determine the enforceability of this termination clause:

By CIBC for Cause – CIBC may terminate your employment at any time without advance notice, or pay in lieu of notice, for Cause. Cause includes, but is not limited to, dishonesty, fraud, breach of trust, failure to perform your duties in a satisfactory manner, a breach of [CIBC’s Code of Conduct], failure to obtain or maintain any required [Training Licenses and Accreditations], failure to complete the pre-employment screening process to the satisfaction of CIBC, providing false, misleading or inaccurate information during the hiring process, a breach of any other term or condition of your employment, and any act or omission recognized as Cause under applicable law. If your employment is terminated for Cause, you will have no entitlement to any notice of termination, payment in lieu of notice of termination, severance or any other damages whatsoever.

The Court held that this clause was illegal because it in essence tried to contract out of the Just Cause provision in the Canada Labour Code ( Section 229.1)

At paragraph 56 and 58 the Judge said : ‘

[56] The For Cause Provision here does not comply with the minimum statutory requirements. It violates the CLC because it is not clear that it only includes events that would be just cause under the CLC. Rather, it contains items that may not be just cause and is therefore broader than the concept of just cause under the CLC. The For Cause Provision does not specify that the acts which constitute Cause must be serious.

58] Where an employment contract defines cause more broadly than the statute, and therefore permits termination without notice in circumstances where the statute prohibits it, the contract breaches the statute: De Castro, at para. 7.

Because the Cause termination provision was illegal, the entire termination clause is void and thus Plaintiffs received reasonable notice instead of the the contractual amount under the By CIBC Without Cause ( which was 2 weeks per year of service).

In addition the Judge seemed to favour the argument the the inclusion of the words ” CIBC may terminate your employment at any time without Cause” also made the clause illegal ( citing Dufault and the cases that followed it ) however the Judge did not feel it was necessary to determine this issue as the clause was illegal in any event for the reasons set out above .

My Comments :

It was generally thought that the Waksdale may have only applied to Ontario because only Ontario uses the different statutory standard of “wilful misconduct” whereas all the other Canadian jurisdictions use the” just cause” standard.

However this case reinforces the principal that when a statute uses a term such as “just cause ” that it is up to the Courts, and not the contracting parties, to determine what is and what is not just cause.

It follows that any clause that seeks to define just cause by listing examples of what it includes runs a real risk that the entire clause will be found to violate the applicable employment standards legislation and thus be unenforceable.

This case could potentially invalidate as many termination provisions across Canada as Waksdale did in Ontario.

For a copy of this case, email me at barry@barryfisher.ca

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

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In Adrain v Agricom International Inc., 2025 BCSC 1842 Justice Bongers had a situation where an employee was given 13 months working notice. Feeling that that notice period was inadequate ( which out was as she had 30 years service ) she engaged a lawyer to first write two letters demanding $200,000. This was refused by the employer so the employee started a lawsuit.

The Court held the following :

1. Suing your employer while still working is not just cause .

2. However it does constitute a repudiation of the contract if the employer accepts the repudiation.

3. In calculating damages you first determine the proper notice period ( 24 months in this case) then you deduct the period of working notice that the Plaintiff did work PLUS the amount of working notice that she did not work

Thus in this case 24 months was the reasonable notice period.

She actually worked 1.5 months before the repudiation.

She failed to work the remaining 11.5 months of working notice .

Thus her entitlement was : 24 – ( 1.5 +11.5) = 11 months

For a copy of this case, email me at barry@barryfieher.ca

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

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In Panchbhaya v. Vulsay Industries Ltd., 2025 ONSC 5370 Justice Koehnen awarded a notice period of 26 months to a 65 year old Lab Manager with 40 years service.

The Judge made a number of interesting comments on the following issues :

1. Notice Period Being Exceptional and Therefore Deserving of More than 24 Months :

This was the only job that the Plaintiff ever had in Canada.

He had no practical experience outside this job.

He worked in a specialized industry and position.

A 65 year old is ” nearing the end of their career”.

His age and seniority alone can act as exceptional circumstances, thereby justifying exceeding  the 24 month cap.

2. Attacks on Mitigation Efforts :

Notwithstanding that the Plaintiff looked for over a hundred jobs, the Defendant chose to attack his mitigation efforts. In ignoring these concerns, the Judge made the following observations:

They provided no letter of reference or outplacement counselling.

They  only paid the Plaintiff his ESA minimums.

Although they gave advance notice that the plant would be shutting down, at the same time they offered retention bonuses for those who stayed on and said that they might be offered other jobs.

The Defendant could not point to a single job that the Plaintiff could have applied for and did not.

For 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.barryfisher.ca

 

 

In Carroll v Oracle Canada ( 2025 ONSC 4889) Justice Koehnen had a situation where the defendant initially only paid the ESA termination on the Plaintiff’s base pay and failed to pay him the commission he had earned over the 8 weeks statutory period. They finally paid the Plaintiff 8 months later.

The judge was not happy with this conduct and found that it was a breach of the duty of good faith and that the real purpose was to ” try to force a financially vulnerable employee into a less favourable settlement position ”

To punish the defendant and to encourage others to not play these games the Judge awarded punitive damages in the same amount as the delayed payment, namely $57,740.

Comments:

In the olden days, the SCC said in Wallace v United Grain Growers that the Court could award damages for bad faith actions in relation to the termination of employment. They gave, as an example, the use of hard ball tactics by an employer over severance issues. This case is a prime example of the how the Courts use the principle of bad faith to seek to regulate bad behaviour by employers.

The other risk that employers could encounter is that a failure to abide by the requirements of the ESA ( or the employment contract) could give rise to an argument that by doing so they have repudiated their own contract. That would mean that the employer could no longer rely on an otherwise valid termination clause and thus be required to pay reasonable notice.

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

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

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

In  Carroll v Oracle Canada ULC , 2025 ONSC 4889 Justice Koehnnen had a 61 year old Global Strategic Client Executive making in excess of $750K per annum with 3 years and 7 months service . He was awarded 12 months notice .

The Judge also made some interesting findings and comments :

1. People who make more money should get a longer notice period because there are less of these jobs available .
2. The absence of a letter of recommendation therefore tends to a longer notice period.
3. The Plaintiff’s income was based largely on commissions, which fluctuated from year to year. The judge used a 3 year average.
4. The judge denied the Plaintiff of the RSU that would have vested within the notice period because of the following language in the RSU Plan:

   Section 11 of the Amended and Restated 2000 Long-Term Equity Incentive Plan Stock Unit Award Agreement For Employees Outside the U.S. provides, among other things:

   (vii) this Award and the Shares subject to this Award, and the income and value of same, are not part of normal or expected compensation or salary for any purpose including, but not limited to, calculating any severance, resignation, termination, redundancy, dismissal, end of service payments, bonuses, long-service awards, pension or welfare or retirement benefits (including the 401(k) Savings and Investment Plan and the Deferred Compensation Plan) or similar payments and in no event should be considered as compensation for, or relating in any way to, past services for the Company, the Employer or any Parent, Subsidiary or Affiliate;

   (xiii) no claim or entitlement to compensation or damages shall arise from forfeiture of this Award resulting from the termination of Participant’s employment (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any), and in consideration of the grant of this Award to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any such claim against the Company, any Parent, Subsidiary or Affiliate or the Employer, waives the ability, if any, to bring any such claim, and releases the Company, any Parent, Subsidiary or Affiliate and the Employer from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, Participant shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim;

5. He awarded the value of benefits at 10% as ” Courts have consistently approved awards for benefits equal to 10% of salary.”

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

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

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