In Kerner v Information Builders (Canada) (2020 ONSC 2975), Pollak J. had a case which involved the termination provision of a sales plan and whether the employee was entitled to commissions over the notice period in addition to his base salary.
Employers across Ontario are double-checking their contracts since the Ontario Court of Appeal released its judgment in Waksdale v Swegon North America Inc., earlier this month. The court held that if an Employment Agreement contains a termination-with-cause provision that breaches the Employment Standards Act, 2000 (ESA), the termination-without-cause provision will be rendered unenforceable as well. This is true even if the employer was not relying on the for cause section and had proceeded on a without cause basis. Even a severability clause cannot save a provision in this context.
Organizations are suddenly facing economic uncertainty given the new and far reaching consequences of COVID-19.