“At Any Time?” Lessons from Dufault and Bertsch

Employment contracts often include phrases allowing employers to terminate “at any time.” Recent Ontario decisions show that this kind of language can make a termination clause unenforceable if it conflicts with the Employment Standards Act, 2000 (ESA).

In Dufault v. Township of Ignace (2024), the court struck down a contract that allowed termination “at any time” and “in the employer’s sole discretion.” The clause also defined “cause” too broadly, capturing behaviour that fell short of the ESA’s higher wilful misconduct standard. Because it breached the ESA, the entire termination provision was void, and the employee was entitled to damages for the remainder of her fixed-term contract.

Courts have since reaffirmed this reasoning in cases like Baker v. Van Dolder’s Home Team Inc. (2025), finding that “at any time” language overstates an employer’s rights. Even when the rest of the clause appears compliant, sweeping wording can imply that employment could end in situations the ESA prohibits, such as during protected leaves.

The principle was extended in Chan v. NYX Capital Corp. (2025), where the Ontario Superior Court found that a probationary clause allowing dismissal “at any time and for any reason” was also invalid. The court held that this wording suggested the employer could terminate in ways inconsistent with the ESA’s minimum protections. Even though the employee was still within the probationary period, the clause failed because it contracted out of statutory rights.

Formulating Enforceable Employment Agreements

The message for employers is clear: precision matters. Clauses must mirror ESA minimums and avoid vague, catch-all phrases like “at any time” or “in sole discretion.”

However, not all termination provisions are doomed. In Bertsch v. Datastealth Inc. (2025 ONSC 6213), the court upheld a termination clause that was carefully drafted to comply with the ESA. The agreement clearly limited entitlements to statutory minimums without overstating employer discretion or restricting employee rights. This decision confirms that well-crafted termination clauses remain enforceable when written in plain language that respects legislative requirements.

What This Means for Both Sides

For employees, clauses that include overly broad language may open the door to a wrongful dismissal claim, entitling you to common law notice far greater than what your employer initially offers. If you are terminated, it is worth reviewing your contract closely. Many agreements that appear restrictive are, in fact, unenforceable because of how they are written.

For employers, these cases underscore the importance of careful drafting and regular review. Even one misplaced phrase can invalidate an entire termination provision. Contracts should be reviewed periodically to ensure they reflect both current law and the realities of the workplace.

Moving Forward

At its core, this evolving body of case law shows that employment contracts must reflect — not exceed — the boundaries of the law.

Whether you are an employee navigating a termination or an employer drafting or revising agreements, New Wave Lawyers can help you understand your rights and obligations, strengthen compliance, and prevent costly disputes before they arise.