After years of uncertainty and court decisions invalidating many termination clauses, Ontario employers finally have some clarity—and good news—thanks to the recent case of Bertsch v. Datastealth Inc.
In Datastealth, the Ontario Court of Appeal (ONCA) upheld a termination clause that limited an employee’s rights to only the minimums under the Employment Standards Act, 2000 (ESA). This is a big win for employers, as it shows that properly drafted clauses can be enforced.
The employee tried to argue the clause was ambiguous, especially around the issue of termination “with cause.” He claimed it does not clearly meet ESA standards. The Court disagreed.
Why This Clause Was Enforceable
The ONCA confirmed that the termination clause was:
- Clear and unambiguous
- Covered all minimum entitlements, not just pay (e.g., vacation, benefits, severance if applicable)
- Applied even in just cause terminations
- Excluded common law entitlements explicitly
- Did not include the problematic phrase “at any time”
- Backed by a failsafe clause (though the Court said it is not necessary)
If you’re an Ontario employer, now is the time to review or curate your employment contracts. The employment law team at Blackburn Lawyers is here to help you navigate your employment law matters with confidence and clarity. For inquiries regarding employment matters, schedule a consultation by contacting us at 905-884-9242 or submitting an online consultation request here.
Disclaimer: This blog serves as a general overview of legal topics and does not constitute legal advice. Each legal issue is unique, and we recommend consulting with an employment lawyer for tailored guidance. Please note that the establishment of lawyer-client relationships is contingent upon the signing of a retainer agreement with our firm.
Written by: Adriana Totera
* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.
