In Baker v. Van Dolder’s Home Team Inc., 2025 ONSC 952, I argued that a termination provision, though styled as ESA-compliant, was in fact unenforceable under Waksdale, Perretta and Dufault. The Court agreed.
The employer relied on Bertsch v. Datastealth Inc. to support the clause, but the Court distinguished it clearly. Unlike Bertsch, the agreement in Baker included a “with cause” provision that fell short of the ESA’s wilful misconduct standard. That flaw affected the entire termination section.
Even the Ontario Court of Appeal in Bertsch emphasized that enforceability depends not just on intention, but on clarity and structural consistency. The decision in Baker reinforces that citing the ESA is not enough. The contract must actually comply with it.
Grateful to be part of a legal field that continues to evolve through critical decisions and thoughtful debate. Read Bertsch v. Datastealth Inc., 2025 ONCA 379 (CanLII):