If Only It Read "Only" – Ontario Court Nullifies Termination Clause Then Proposes A Corrected Version

While the Ontario Court of Appeal has had a number of occasions in the last couple of years to weigh in on the question of what makes for an enforceable termination provision in an employment agreement, whether it has in any way stemmed the flow of litigation in this area is a matter of some debate.

We know from the Ontario Court of Appeal's decision in Nemeth v. Hatch Ltd., 2018 ONCA 7 (Nemeth), that "a high degree of clarity" is required in any termination provision and that "any ambiguity will be resolved in favour of the employee and against the employer who drafted the termination clause." We are reminded by the decision in Oudin v. Centre Francophone de Toronto, Inc. 2016 ONCA 514, meanwhile, that "contracts are to be interpreted in their context" and that, rather than disaggregate the words in a clause looking for any potential ambiguity, regard should be had to whether there was an intent to contract out of the Employment Standards Act, 2000 (ESA). Putting