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.
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