In the recent case of Dufault v The Corporation of the Township of Ignace , Justice Pierce held on a number of grounds that the termination clause contradicted the ESA and was thus void.
Some of the grounds were new and some were old and well established .
Among the old and well established grounds was the 2020 Ontario Court of Appeal case of Waksdale v Sweden North America Inc where the court found that because the common law concept of just cause is different than the higher standard of wilful misconduct under the ESA, a termination provision which states that upon a dismissal for just cause the employee is not entitled to any notice or pay in lieu of notice violates the ESA and is thus void. As a consequence the employee is entitled to what they would have received had the void clause not existed, which is either common law reasonable notice or the balance of the fixed term.
Well, the Defendant in this case wants the Ontario Court of Appeal to ”
revisit and overturn its 2020 decision in Waksdale v Swegon North America Inc. In that regard, the Defendant (Appellant) requests that this matter be heard by a five-member panel ”
The Appellants will have an uphill battle. Waksdale has been cited 47 times according to CanLll. I believe that it would be extremely unlikely that the OCA would overturn their own decision on this seminal employment case.
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