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Ontario's top court rules 'at any time' does not sink a termination clause
The Court of Appeal reversed a ruling that voided an employer's contract over those words, and told judges to stop straining to find ambiguity where none exists.
Two motion judges split over the same wording, and the appeal court settled it
Without-cause termination clauses in two Ontario employment contracts, and how each court ruled on them
| Contract | Wording at issue | 2025 motion ruling | 2026 Court of Appeal |
|---|---|---|---|
| Van Dolder's Home Team Inc. | at any time | Void (Justice John R. Sproat, Feb. 11, 2025) | Enforceable (reversed) |
| Wayfair Canada ULC | at any time and for any reason | Enforceable (Justice Grant R. Dow, July 9, 2025) | Enforceable (upheld) |
Highlighting added. Source: Court of Appeal for Ontario, 2026 ONCA 568; Ontario Superior Court of Justice, 2025 ONSC 952 and 2025 ONSC 2959
In March 2023, Van Dolder's Home Team Inc. dismissed its finance controller without cause after more than two years on the job. He was 71. The company offered four weeks' pay if he signed a release, but he refused and sued, arguing his termination clause breached Ontario's Employment Standards Act, so Van Dolder paid him the two weeks the act requires.
Seven months later, Wayfair Canada ULC dismissed a senior product manager before his first anniversary and paid him the one week the ESA requires, with one week of benefits. Both men sought common law reasonable notice instead.
Both employees left with the statutory minimum and a bill for the employer's legal costs
Pay in lieu of notice and costs ordered on appeal, for the two dismissed employees
Pay in lieu of notice, in weeks
Neither court decided what common law reasonable notice would have been, so it is not shown.
Costs on appeal, in dollars
Costs are inclusive of taxes and disbursements.
| Item | Amount |
|---|---|
| Van Dolder employee: offered if he signed a release | 4 weeks |
| Van Dolder employee: paid (ESA minimum) | 2 weeks |
| Wayfair employee: paid (ESA minimum) | 1 week |
| Van Dolder appeal: costs employee pays (agreed) | $2,500 |
| Wayfair appeal: costs employee pays (awarded) | $10,000 |
| Wayfair's partial-indemnity costs, as submitted | $12,600 |
| Costs the Wayfair employee would have sought had he won | $39,000 |
Source: Court of Appeal for Ontario, 2026 ONCA 568, paras. 9, 16, 86–87
Their argument had backing. In a 2024 case involving the Township of Ignace, a Superior Court judge held that "at any time" wording clashed with ESA provisions that bar dismissing an employee at the end of a protected leave or as a reprisal.
The Court of Appeal upheld that decision on other grounds and expressly declined to decide the point. Justice John R. Sproat considered himself bound by it in the Van Dolder case, while Justice Grant R. Dow distinguished it in the Wayfair case.
Thirteen cited rulings enforced the wording before a 2024 decision went the other way
Rulings the Court of Appeal cited as examples of courts enforcing "at any time" or "for any reason" clauses, and the decisions in this dispute. The court noted the earlier cases did not consider the statutory-conflict argument.
| Year | Court | Case | Wording | Result |
|---|
Cases with individual parties are identified by the organization involved. ONCA: Court of Appeal for Ontario; ONSC: Ontario Superior Court of Justice; SCC: Supreme Court of Canada. Source: Court of Appeal for Ontario, 2026 ONCA 568, paras. 11, 49, 51, 61
Writing for a unanimous three-judge panel, Justice P.J. Monahan agreed that, read literally and in isolation, the words could conflict with the ESA. But the test is what the parties objectively intended across the whole contract, he wrote, and neither side could have meant the clause to let the employer break the statute.
Reading it that way would defeat the clause's own purpose and expose the employer to consequences far worse than paying common law notice, the court said.
Read in full, both contracts tie termination to the ESA again and again
The phrase at issue and every reference to the Employment Standards Act in the termination wording the court relied on, by contract
Without-cause provision
we may terminate your employment at any time, without just cause, upon providing you with only the minimum notice, or payment in lieu of notice and, if applicable, severance pay, required by the Employment Standards Act. If any additional payments or entitlements, including but not limited to making contributions to maintain your benefits plan, are prescribed by the minimum standards of the Employment Standards Act at the time of your termination, we will pay same.
"Minimum standards" clause
we will, at all times, comply with the Employment Standards Act. If any term of this Agreement is inconsistent with the minimum requirements of the Employment Standards Act, the Employment Standards Act shall prevail, and you will receive all entitlements prescribed by the Employment Standards Act.
The court held that the promise to comply "at all times" must include "at any time" the company ends the job without cause.
Without-cause provision
After your probationary period concludes, in the absence of Cause, the Company may terminate your employment at any time and for any reason by providing you with only the minimum statutory amount of written notice required by the ESA or by paying you the minimum amount of statutory termination pay in lieu of notice required by the ESA, or a combination of both, as well as paying statutory severance pay required by the ESA, providing benefits continuance for the requisite minimum statutory notice period under the ESA and all other outstanding entitlements, if any, owing under the ESA. These payments and benefits shall fully satisfy all of the Company's notice, severance and benefits continuance obligations upon the termination of your employment, whether arising under the ESA, the common law or this Agreement, and you agree you shall have no further entitlements unless expressly required by the ESA. In no event will you receive less than your statutory minimum entitlements under the ESA.
The court called this a "scrupulous intention to comply with the ESA" that made a contrary reading of "for any reason" illogical.
If "at any time" let the employer breach ESA bans on dismissal after a leave or as a reprisal, it would face:
$100,000
maximum fine, and up to 12 months' imprisonment, on prosecution under the ESA
Reinstatement
or a "make whole" order, rather than common law damages
| Contract | Phrase at issue | References to the ESA |
|---|---|---|
| Van Dolder's Home Team (without-cause provision and minimum standards clause) | at any time | 6 |
| Wayfair Canada (without-cause provision) | at any time and for any reason | 8 |
Highlighting and counts by HR Law Canada from contract wording quoted in the ruling. Source: Court of Appeal for Ontario, 2026 ONCA 568, paras. 8, 15, 44–46, 54, 59; ESA s. 132
Van Dolder's contract also let it fire for just cause, defined through six grounds that reach beyond the ESA's narrower standard of wilful misconduct. Justice Sproat struck that clause too, finding ordinary employees would not know the two standards differ.
The appeal court disagreed because the clause promised that a worker fired for cause would still get "any minimum compensation or entitlements prescribed by the Employment Standards Act." That proviso set it apart from with-cause clauses the court has struck in cases involving the Township of Ignace, Arista Homes and Cannon Design.
A broad definition of cause survives if ESA pay still flows below the wilful misconduct line
How two kinds of with-cause clauses treat an employee fired for cause, under Ontario's ESA
The six grounds for just cause in Van Dolder's contract
- Poor performance after written notice
- Dishonesty
- Theft or misuse of company property
- Violence or harassment
- Disclosing confidential information
- Any other just cause at law
Clauses the court has struck
Township of Ignace (2024), Arista Homes (2025), Cannon Design (2022)
Cause under the contract
Nothing paid, even below the ESA floor. Unenforceable.
ESA wilful misconduct, "bad on purpose"
No ESA notice, benefits or severance owed
Van Dolder's clause
Held to comply with the ESA, Aug. 6, 2026
Cause under the contract
ESA notice, benefits and severance still owed. Enforceable.
ESA wilful misconduct, "bad on purpose"
No ESA notice, benefits or severance owed
| Clause | Cause short of wilful misconduct | Wilful misconduct | Result |
|---|---|---|---|
| Township of Ignace, Arista Homes, Cannon Design clauses | Nothing paid | No ESA entitlements | Unenforceable |
| Van Dolder's clause | ESA notice, benefits and severance still owed | No ESA entitlements | Enforceable |
Diagram is conceptual, not to scale. Source: Court of Appeal for Ontario, 2026 ONCA 568, paras. 8, 64–80
"If the minimum entitlements under the ESA are for any reason deemed to be insufficient or inadequate substitutes for common law reasonable notice, that is a matter for the legislature rather than the courts."Justice P.J. Monahan, Court of Appeal for Ontario
The ruling clears two common phrases and leaves the one-bad-clause rule in place
Where Ontario termination-clause questions stand after the Aug. 6, 2026 decision
- "At any time" in a without-cause clauseEnforceableRead in context, it means a termination is valid whenever it happens, not that the employer may break statutory bans.
- "For any reason" in a without-cause clauseEnforceableIt means the employer need not give a reason. It does not exempt the employer from the ESA.
- With-cause clause broader than wilful misconduct that preserves ESA minimumsEnforceableThe court rejected the idea that employers must explain how the ESA standard differs from the contract's.
- With-cause clause that denies all pay for cause short of wilful misconductUnenforceableEarlier rulings in the Township of Ignace, Arista Homes and Cannon Design cases stand.
- One non-compliant termination provision voids all of them (2020 ruling involving Swegon North America)Not revisitedVan Dolder asked the court to overrule it. The court declined because both contracts complied.
Source: Court of Appeal for Ontario, 2026 ONCA 568, paras. 47, 53, 62–63, 70–73, 79–82
What this means for you
This is one appellate ruling on two Ontario contracts whose wording repeatedly committed the employer to the ESA, and it does not say what common law notice either employee would otherwise have received.
- Check that termination clauses tie every payment to the ESA in express terms. The court leaned on that wording in both contracts.
- Consider a clause saying the ESA prevails over any inconsistent term. The court read Van Dolder's promise to comply "at all times" as governing its right to terminate "at any time."
- Make sure with-cause clauses promise ESA minimums when the conduct falls short of wilful misconduct. The court has struck clauses that lack it.
- Treat every termination provision as load-bearing. The court left intact its 2020 rule that one non-compliant provision can void the others.
Sources and methodology
This graphic is based on the Court of Appeal for Ontario's reasons in two appeals heard together on March 25, 2026, and released Aug. 6, 2026 (2026 ONCA 568), by Justices B. Zarnett, P.J. Monahan and M. Rahman. The appeals came from Superior Court decisions by Justice John R. Sproat (2025 ONSC 952, Feb. 11, 2025) and Justice Grant R. Dow (2025 ONSC 2959, July 9, 2025). The Ontario Chamber of Commerce, and Parkdale Community Legal Services with the Income Security Advocacy Centre, intervened in the Van Dolder appeal.
In keeping with HR Law Canada's policy, individuals are not named. Cases with individual parties are identified by the organization involved and, where shown, the neutral citation. All figures come from the ruling. Notice entitlements are those under s. 57 of Ontario's Employment Standards Act, 2000. The ruling does not report what common law reasonable notice either employee would have received. The timeline includes only the rulings the court cited as examples, not every case on this wording, and the court said those cases did not expressly consider whether the wording conflicted with statutory bans on dismissal. Counts of ESA references were made by HR Law Canada from the contract text quoted in the ruling. The decision applies Ontario law. Other provinces were not considered.
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