J.A. Byrne

The appellant employer appealed a trial decision finding that the termination clause in the respondent's employment contract was void.

The clause provided for base salary during the notice period but excluded pension contributions and a car allowance, contrary to the minimum requirements of the Employment Standards Act, 2000.

The Divisional Court upheld the trial judge's finding that the clause was void and could not displace the common law presumption of reasonable notice.

The appeal was dismissed.

Following a wrongful dismissal trial where the plaintiff was awarded damages based on a three‑month notice period totaling $32,425.39, the court determined the appropriate costs award.

The plaintiff sought substantial indemnity costs exceeding $60,000 or alternatively partial indemnity costs of approximately $41,530, while the defendant argued that $25,000 all‑inclusive was appropriate.

Applying Rule 57.01 and considering proportionality in simplified procedure cases, the court emphasized that costs must be reasonable relative to the amount in dispute and recovery obtained.

The court also considered the plaintiff’s partial success, unsuccessful inducement arguments, and the significant legal resources devoted to a short trial involving modest damages.

Costs were fixed at $25,000 inclusive of fees, disbursements, and HST payable by the defendant to the plaintiff.

An employee brought an action for wrongful dismissal after termination without notice.

The employer relied on a termination clause limiting notice to the minimum required by the Employment Standards Act, 2000.

The court held that although the clause clearly referenced the statutory minimum notice period, it failed to provide for continuation of benefits during the notice period, contrary to the ESA.

As a result, the entire termination clause was void and the employee was entitled to common law reasonable notice.

Applying the Bardal factors, the court determined that three months’ reasonable notice was appropriate and awarded damages including salary, car allowance, pension contributions, and modest special damages.