Summary

In the recent decision Chan v NYX Capital Corp., 2025 ONSC 4561 (“NYX”), the Ontario Superior Court of Justice once again found that a termination clause using the phrase “at any time” violated the Employment Standards Act, 2000 (the “Act”), rendering it unenforceable. This decision follows the Court’s reasoning in Dufault v The Corporation of the Township of Ignace, 2024 ONSC 1029 (“Dufault”) and Baker v Van Dolder’s Home Team Inc., 2025 ONSC 952 (“Baker”), which similarly rejected an employer’s ability to terminate someone’s employment “at any time” and “for any reason”.

Facts

In NYX, the plaintiff had been working for the defendant for just under three months when his employment was terminated. The defendant asserted that the plaintiff was a probationary employee and, as such, was not entitled to notice under the Act or at common law. The plaintiff evidently rejected the defendant’s assertion, arguing:

1. The plaintiff was not a probationary employees because the probationary clause under the termination clause in the employment agreement was unenforceable; and
   
2. Even if the plaintiff was a probationary employee, the defendant terminated the plaintiff’s employment in bad faith because the defendant did not satisfy the test for terminating a probationary employee, which required a good faith finding that the plaintiff was unsuitable for permanent employment.

The language at issue in the termination clause read in part:

10. Termination

Your employment with the...

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