After recent decisions add to list of offside language in employment agreements, Ontario court finds termination clause enforceable
If you’ve been keeping up to date with employment law decisions, then you’ve certainly heard of Dufault v The Corporation of the Township of Ignace, 2024 ONSC 1029 and of Baker v. Van Dolder ‘s Home Team Inc., 2025 ONSC 952.
In brief, Dufault made waves with its controversial ruling that language such as: “sole discretion” and “at any time” rendered a termination provision unenforceable as it potentially breached the Employment Standards Act, 2000 (ESA) by allowing employers using that language to terminate the employment relationship at times precluded by the ESA (for example, during statutory leaves or reprisal).
Baker then applied Dufault to strike a termination clause with the offending language, confirming that it is, at least for the time being, part of the law of the land in Ontario.
While many in the HR law bar thought that the reasoning in Dufault was a stretch, the fact that the court reached the conclusion it did was not all that surprising. This is because Dufault is just the latest in a series of decisions that have added to the list of offside language in employment agreements and termination clauses — that is, language that potentially breaches the ESA.
What is a bit surprising is the decision in the currently unpublished case Li v Wayfair Canada Inc, 2025 ONSC 2959. In Wayfair, the court ruled that the termination clause, which...
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