Month: October 2026

In Ghazvini v. Canadian Imperial Bank of Commerce, 2026 ONCA 766 Justices Huscroft, Dawe and Brownstone considered the enforceability of the following 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 the Code, failure to obtain or maintain any required TLAs, failure to complete the preemployment 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 upheld the trial judgement which found that because this contractual definition was much broader than the common law understanding of that term, the clause was invalid and therefore the entire termination clause was unenforceable.

In essence the Court confirmed that when a statute ( in this case the Canada Labour Code) uses a term such as ” just cause” the meaning of that term is defined by the common law , not by the parties.

By seeking to expand the meaning of the term ” just cause ” to matters that would not conform to common law just cause, the parties are in effect attempting to contract out of the statute, which is of course prohibited.

It should be noted that there was no ” saving cause ” as in Baker v Van Dolder’s Home Team Inc ( 2026 ONCA 568).

It is my understanding that term “just cause” is the ESA standard in every jurisdiction in Canada, except Ontario ,which has the higher standard of “wilful misconduct”

This means that this same reasoning should apply across Canada .

Therefore any termination provision which tries to define ” just cause ” runs the risk of being found to be illegal. The better practice would be just to use the term ” just cause :” and leave it at that.

Less is often better when drafting termination clauses.

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

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

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

In Chowanetz v. Ivor Forest Products Ltd., 2026 BCSC 1760 Justice Wilson had a situation where the employee signed a new employment contract containing a nESA only termination clause after a few years of employment ( he 2024 Contract) . Prior to the 2024 Contract there was no termination clause.

The employer claimed that there was fresh consideration in that a) his hourly wage went from the original $35 to $38.50 per hour, b) they introduced a RRSP matching program and c) they introduced a discretionary bonus plan.

The Judge found that the wage increase was not fresh consideration because in the original contract the employer agreed to review his salary annually to insure that it kept up with market. As there was no evidence led which would show that the new $38.50 rate was above the market rate, the increase was not fresh consideration but rather simply fulfilling the prior obligation to maintain the wage at the market rate.

The RRSP program was introduced a few weeks before the signing of the 2024 Contract so that was not fresh consideration.

As the bonus program was entirely discretionary , it could not be fresh consideration as the bonus could have been zero.

As such the employee was entitled to reasonable notice of 6 months notice for a 48 year old technician with just under 5 years service

If you want 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