Tracy Kay

An employee's employment was terminated without cause pursuant to an employment contract containing a termination clause that limited severance pay to base salary only, thereby excluding commissions.

The employee argued the clause violated the Employment Standards Act, 2000 by contracting out of an employment standard.

The contract also contained a severability clause.

The application judge used the severability clause to excise only the offending sentence, leaving the remainder of the termination clause enforceable.

The Court of Appeal reversed, holding that where a termination clause contracts out of any employment standard, the entire termination clause is void under section 5(1) of the ESA, and the severability clause cannot be used to save it.

The employee is therefore entitled to common law reasonable notice.

The accused was charged with refusing to provide a breath sample into a roadside screening device and obstructing a peace officer by failing to provide identification.

The accused challenged the charges on Charter grounds, alleging violations of ss. 8, 9, and 10(b).

The court found that the roadside demand was made within the "forthwith" requirement despite a six-minute delay, as the delay was necessitated by articulated safety concerns and the accused's obstructive behaviour.

The arrest, though technically charged under the wrong provision, was supported by reasonable and probable grounds.

The court found no Charter violations and convicted the accused on both charges.