Executive Summary: Key Legal and Evidentiary Issues

• Enforceability of “for cause” and “without cause” termination clauses measured strictly against ESA minimum standards and read as a whole

• Contract interpreted as limiting entitlements to ESA minima; distinguishable from clauses struck down in recent case law (e.g., Dufault)

• Alternative common law analysis (if clause unenforceable): Bardal factors support a four-month notice period for a high-earning, mid-career manager

• Treatment of RSUs on termination: would have vested during a reasonable notice period under common law damages principles

• Mitigation burden on employer not met due to lack of cogent evidence of comparable roles and absence of reference/outplacement support

• Costs reserved with directions; postscript addresses improper unilateral communication with the court and notes recent appellate authorities

Facts
The plaintiff worked as a Senior Product Manager at the defendant from January 23, 2023 to an effective termination date of October 17, 2023 (just under nine months). He was 45 years old and earned $221,564 CAD annually, plus benefits ($10,831.86/year), RRSP contributions ($8,861.84/year), potential RSUs scheduled to vest on February 1, 2024 (USD $73,017), and he claimed $1,470.49 in mitigation expenses. On termination, he received one week of base salary and benefits per the employment agreement; there was no letter of reference or outplacement. The matter proceeded by summary judgment.

Issues
Key issues were whether the termination provisions (both “for cause” and “without cause”) complied with the Employment Standards Act, 2000 (ESA) and were therefore enforceable; if not, what reasonable notice was owed at common law (including the impact on RSUs and other compensation); whether the plaintiff failed to mitigate; and the resulting costs disposition.

Decision
The court held the employment agreement’s termination provisions were enforceable and limited the plaintiff to ESA minimums, which had already been paid (one week). The claim for additional common law damages was dismissed.

Reasoning on termination clauses
The contract defined “Cause” expressly by reference to the ESA and limited entitlements “unless expressly required by the ESA,” while the “without cause” clause repeatedly tied notice, termination pay, severance, and benefits to what is “required by” or “under the ESA.” Reading the agreement as a whole, the court found it sought only to limit the employer’s obligations to ESA standards and thus complied with minimum standards. The court distinguished Dufault because that contract’s wording did not properly tether definitions and entitlements to ESA requirements (e.g., omission of all types of wages), and preferred the approach in Amberber permitting ESA-compliant limitation clauses.

Alternative common law analysis (if unenforceable)
In the alternative, the court stated that a reasonable notice period would have been four months, considering the Bardal factors: a senior-titled but non-executive role, very high compensation, age 45, and short service (with short service not given disproportionate weight). The employer did not meet its mitigation onus: only 28 applications over five months did not, without more, prove unreasonable efforts, especially given no reference or outplacement support and no cogent evidence of comparable roles the plaintiff failed to pursue. On this alternative footing, monthly benefits ($902.66) and RRSP contributions ($738.49) would have been included for four months, but the $1,470.49 job-search expenses would not have been awarded.

RSUs and other compensation
Under the alternative common law scenario, the notice period would have extended beyond February 1, 2024, so the RSUs would have vested as damages for what the employee would have earned during reasonable notice (consistent with appellate authority), notwithstanding plan language conditioning vesting on active employment. Because the contract was found enforceable, no such common law RSU recovery was ordered.

Costs and postscript
The court urged the parties to agree on costs and, failing agreement, set deadlines for written costs submissions (moving party by August 18, 2025; responding by September 18, 2025). In a postscript, the court admonished defense counsel for unilateral communication with the court contrary to Rule 1.09, noted recent appellate developments (including Bertsch and the Supreme Court’s refusal of leave in Dufault), and confirmed these did not alter the analysis.