In Brocklehurst v Micro Companies Limited( 2025 NSSC 192) Judge Chipman had to deal with this termination clause:
Termination Without Cause:
Your employment may be terminated by Micco without cause, upon provision to you of the following payments:
(i) any portion of the annual salary and accrued vacation pay, if any, that has been earned by your [sic you] prior to the date of termination by [sic, but] not yet paid;
(ii) continued participation in Micco group health plan for such time as may be required under Nova Scotia Labour Standards legislation; and
(iii) only such minimum notice of termination, or pay in lieu thereof, and severance pay (if applicable) to which you are entitled under the Nova Scotia Labour Standards legislation.
The Judge found that this close was unenforceable due to ambiguity for the following reasons :
- “the qualifier, “to which you are entitled under the Nova Scotia Labour Standards legislation”, may be read such that it does not apply to the notice of termination. This qualifier may be read to only apply to the severance pay. Accordingly, the termination provision does not clearly limit the Applicant’s entitlement to common law notice.”
- There is no “severance pay ” under the Nova Scotia Labour Standards Code, therefore the reference to that could be referring to common law notice as the term “severance pay” is a colloquial way of referring to common law notice.
My Comments :
The first reason given by the Judge I understand on an intellectual basis but even to me it seems a bit of a stretch.
However the second reason is fascinating because that is common language used in Ontario where the ESA refers to both termination pay and severance pay as they are two distinct statutory entitlements.
This case again reminds us that it always risky to try to adopt termination clauses that are not specific to one jurisdiction.
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