In Livshin v The Clinic Network Canada (2021 ONSC 6796) Black J. had situation where the termination clause breached the ESA in that they referenced ”just cause” as a a ground for paying no severance, which following Waksdale v Swegon, (2020 ONCA 391) is illegal and voids the entire termination clause, including the “not for cause” provision.
What do you get when you combine a fixed-term contract, an unenforceable termination clause and an early termination? In short, an employee that will be paid for the balance of the contract and an employer with an unexpected severance obligation.
As my contracts professor used to say, “you can’t suck and blow at the same time”. What he meant was that you cannot seek to enforce some parts of a contract while simultaneously breaching others. That is what happened to Rand A Technology Corporation in a recent case: they breached the termination clause in the employment contract by paying less than they were required to but, when the employee complained, they tried to rely on that same termination clause to limit their liability. They lost.