Simply Complying with the ESA not Enough to Rebut Common Law Presumption of Entitlement to Reasonable Notice – ON Divisional Court

Is the sole requirement to rebut the common law presumption of termination only upon reasonable notice that the contractual termination clause comply with the ESA, or is something else required?

In a decision released December 6, 2018, Movati Athletic (Group) Inc. v. Bergeron, 2018 ONSC 7258 (CanLII), the Ontario Divisional Court (Swinton, Thorburn, and Copeland JJ.) upheld an earlier decision of the Honourable Justice O’Bonsawin, 2018 ONSC 885, about which I blogged in my post Lack of Clear Warning Voids Termination Provision, which held something more is required.

In addition to upholding Justice O’Bonsawin’s decision, the Divisional Court provided some very clear, point-by-point analysis on what it takes for a contractual termination clause to sufficiently, and legally, rebut that common law presumption.

Lack of Clear Warning Voids Termination Provision

Must an employer provide its employees with a clear warning that it intends to provide no more than the minimum amount of notice prescribed by the Employment Standards Act, 2000 in order to create a legally binding employment contract?

Does the failure to provide a clear warning to an employee that her employment may be terminated upon the provision of no more than the minimum amount of notice prescribed by the Employment Standards Act, 2000 create an ambiguity voiding the contractual termination provision?

In a decision of the Ontario Superior Court of Justice sitting at Ottawa, released February 6, 2018, Bergeron v. Movati Athletic (Group) Inc., 2018 ONSC 885, the Honourable Justice Michelle O’Bonsawin said that the answer to those questions is “yes.”