In Henderson v. Slavkin et al., 2022 ONSC 2964 Justice Carole Brown dealt with the legality of an ESA Termination Clause. The actual termination clause itself was found to be OK, but both the confidentiality clause and the conflict of interest clause had the following sentence.
It is important for employers to keep in mind that the words in employment contracts have meaning. Moreover, where it is the employer that has drafted the contract and sought the requested terms, in the event of a later dispute over said terms, it is likely the courts will give effect to the logical, common sense meaning of the contractual language and interpret any ambiguity in the employee’s favour.
Consider this: you provide a new agreement to an existing employee. The agreement contains a termination clause limiting the employee’s entitlements upon termination to the minimum under the statute. The employee signs the contract. Several years later, after dismissing the employee and providing them with their minimum statutory entitlements, you receive a letter from the employee’s lawyer seeking 24 months of pay in lieu of notice.