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Understanding the Enforceability of Termination Clauses: A Comparative Analysis of BC and Ontario Approaches

Aug 31, 2023 | Uncategorized

Termination clauses in employment agreements play a crucial role in defining the rights and obligations of both employers and employees when it comes to ending the employment relationship. Recent legal cases have shed light on the complexities surrounding the enforceability of such clauses, with regional nuances leading to varying interpretations. One such case, Forbes v. Glenmore Printing Ltd., has illuminated the divergent paths taken by the Supreme Courts of British Columbia (BC) and Ontario in evaluating termination clauses. This article delves into the specifics of the Forbes case, exploring the differing viewpoints adopted by the BC and Ontario courts and their implications for employers across Canada.



In Forbes v. Glenmore Printing Ltd., a dispute emerged over the validity of a termination clause within an employment agreement. The employee challenged the clause’s legality, arguing that it failed to provide him with reasonable notice upon termination. Meanwhile, the employer maintained that the clause adhered to statutory requirements, rendering it enforceable. The clause’s significance lay in its impact on both individual and group termination scenarios as dictated by the Employment Standards Act (BC ESA). 

The termination provision outlined in the employment agreement stated the following:

  1. In the event that Glenmore Printing chooses to conclude this Agreement, the Employee shall be provided:
    1. One week’s notice or an equivalent week’s worth of wages after completing the first three months of consecutive employment.
    2. Two weeks’ notice or an equivalent two weeks’ worth of wages after completing the initial year of consecutive employment.
    3. Three weeks’ notice or an equivalent three weeks’ worth of wages after completing three successive years of employment, along with an additional week’s notice or wages for every subsequent year of service, up to a maximum of eight weeks’ notice or wages.


Employee’s Argument:

The employee’s argument hinged on the contention that the termination clause was void and he was entitled to reasonable notice at common law. He asserted that the termination clause in the employment agreement limited his notice entitlement to eight weeks, under the individual terminations provisions in section 63 of the BC ESA. This stance disregarded the additional right to sixteen weeks of notice mandated by section 64 of the BC ESA for group terminations. Section 64 dictates that if an organization terminates 50 or more employees at once, each employee is entitled to an extended notice period. Furthermore, the employee highlighted that, if subject to a group termination, he would have been eligible for a notice duration of 24 weeks.



The Supreme Court of British Columbia ruled in favor of the employer, upholding the enforceability of the termination clause. Central to this decision was the court’s interpretation of the clause’s alignment with section 63 of the BC ESA. The court asserted that section 63 establishes the minimal statutory prerequisites necessary to replace the common law entitlement to reasonable notice in individual termination situations. Therefore, since the termination clause paralleled section 63’s stipulations for individual terminations, it was deemed valid by the court.

Furthermore, the court determined that as the termination clause did not include any waiver of the employer’s responsibility to furnish section 64’s notice to the employee within the framework of a collective termination, there was no violation of the ESA. Given that the employer remunerated the employee with a sum equivalent to six weeks’ salary, aligning with the provisions of the termination clause, to account for his tenure of six years and four months, the court concluded that the employer had met its obligations to the employee upon the conclusion of his employment.


Comparative Insights: BC vs. Ontario:

The Forbes case highlights a stark difference between the approaches taken by the Supreme Courts of British Columbia and Ontario regarding the assessment of termination clause enforceability. While the BC courts emphasize the compliance of a termination clause with the minimum statutory requirements for notice concerning individual terminations (section 63 of the BC ESA), Ontario courts have been shown to adopt a more holistic evaluation. In Ontario, as seen in the Waksdale v. Swegon North America Inc. case, the courts examined the entirety of the agreement, invalidating all termination clauses that conflicted with the Employment Standards Act, 2000 (Ontario ESA).

However, in Henderson v. Slavkin (2022 ONSC 2964), Ontario’s Superior Court of Justice took an even stricter stance than Waksdale. In Henderson, the employment agreement included a termination without cause clause, a conflict-of-interest clause, and a confidential information clause. The decision hinged on an analysis of all of these clauses and their validity and therefore whether they invalidated the overall employment contract. 

The court sided with the employee, asserting that because the agreement had clauses conflicting with the Ontario ESA, it was illegal and should be voided. The employee was then entitled to common law damages.


Implications for Employers:

Employers across Canada must be cognizant of the divergent interpretations applied by different provincial courts when assessing the enforceability of termination clauses. Regional disparities in legal approaches necessitate careful drafting of employment agreements to ensure alignment with local laws and regulations. In the case of termination clauses, understanding the nuances between individual and group termination provisions within relevant statutes is paramount. Employers are advised to work closely with legal and HR experts to navigate these complexities and draft agreements that comply with the varying interpretations of the courts in different jurisdictions.

The Forbes case underscores the importance of staying attuned to the evolving landscape of termination clause enforceability. As BC and Ontario courts take distinct paths in their evaluations, employers must adopt a proactive approach to crafting employment agreements that adheres to regional standards. With an eye toward both individual and group termination provisions, employers can mitigate legal risks and uphold their obligations while safeguarding their interests and maintaining positive employer-employee relationships.

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