Unenforceable 'at any time'

A Superior Court decision in Ontario has once again determined that the phrase “at any time” in a termination provision is unlawful and violates the province’s Employment Standards Act, 2000 (ESA), making the entire termination clause void and unenforceable. 

The decision, Chan v. NYX Capital Corp, 2025 ONSC 4561, is one of a series of lower court decisions that represent an inconsistency in Ontario law on this language, with some decisions finding that this phrase (or those like it) violates the ESA and makes a termination clause void and enforceable - such as in Dufault v. The Corporation of the Townships of Ignace, 2024 ONSC 1029 and Baker v. Van Dolder’s Home Team Inc., 2025 ONSC 952 - with others finding that it does not (at least completely) make a termination provision unenforceable – see Jones v. Strides Toronto Support Services, 2025 ONSC 2482, Li v. Wayfair Canada ULC., 2025 ONSC 2959, and Wigdor v. Facebook Canada Ltd., 2025 ONSC 4861).  

The decision in Chan should serve to remind both employers and employees to keep a keen eye on how employment contracts are drafted and reviewed. In this case, the employee was awarded almost $45,000 in damages for a three-month notice period, despite having been terminated under an employment contract that the employer believed would allow them to terminate the employee during a probationary period without having to provide any notice.    

Reginald Chan was an employee of NYX Capital Corp., a real estate investment firm, who was terminated one day before the end of his three-month contractual probationary period. Chan sued NYX for wrongful dismissal, taking the position that the termination clause in his employment agreement, which included the probationary employment clause, was unenforceable and he was therefore entitled to common law notice of termination. NYX disagreed, maintaining that the termination clause was enforceable.  

Termination clause: ‘at any time’ 

The termination clause provided the following:  

“Your employment with [NYX] may be terminated as follows:  

(a) The first three months of your employment are probationary, during which time [NYX] may terminate your employment at any time and for any reason at its discretion, without notice or pay in lieu of notice, or other obligation.  

…  

(c) After you successfully complete the first three months of your employment, [NYX] may terminate your employment at any time without cause, upon providing you with notice, or pay in lieu of notice, benefits continuation and severance pay (if applicable) and any other benefits or entitlements strictly required in accordance with the minimum requirements set out in the ESA. It is agreed and understood that the provision of such notice or pay in lieu of notice, severance pay (if applicable), benefits continuation and any other benefits or entitlements required under the ESA shall constitute full and final satisfaction of any claim which you might have arising from or relating to the termination of your employment whether such claim arises under statute, contract, common law or otherwise, save any claim that cannot be released by operation of a statute of Ontario.  

(d) The Company may terminate your employment at any time for cause, without any obligation to you on account of notice or pay in lieu of notice, severance pay, or other obligation, other than accrued amounts owed to the date of termination. [Emphasis added].” 

The court noted that NYX’s use of the phrases “at any time” and “at any time and for any reason”, violated the ESA. The court found that these termination clauses violated the ESA’s general prohibition against an employer attempting to contract out of or waive any employment standard in the ESA.  

The court followed the recent decisions in Dufault and Van Dolder’s, which have similarly found that terms allowing employers to terminate “at any time” violate the ESA, noting that employers do not have an “absolute right” to dismiss employees. The court in this case gave the example that an employer cannot dismiss an employee as reprisal for exercising a right under the ESA, and therefore contractual language that would give an employer the ability to terminate “at any time and for any reason” is contrary to the ESA.  

The court then applied the Ontario Court of Appeal’s finding in Waksdale v. Swegon North America Inc., 2020 ONCA 391, which established that a clause that violates the ESA will render an entire termination provision as void and unenforceable. Accordingly, the violations found in paragraphs (a), (c), and (d) resulted in the entire termination provision being set aside in its entirety. This resulted in Chan receiving approximately $45,000 for pay in lieu of notice.   

Key takeaways on termination clause language 

This case reminds employers that it is important to consult employment law counsel to ensure that their employment contracts are meeting all required standards set out by the ESA. As noted, Chan worked less than three months before his termination, but NYX’s failure to have its employment contract abide by the ESA resulted in a payment to Chan of approximately $45,000. Similarly, it is important for employees to have their employment contracts reviewed upon termination to ensure that they are not leaving behind any money or benefits to which they may be entitled.  

Hayley Smith is an employment lawyer and workplace investigator at Turnpenney Milne in Toronto.