- The Employment Standards Act, 2000 sets minimum standards for almost every employment relationship in Ontario.
- Employees dismissed without cause are generally entitled to advance written notice, or pay instead of notice, calculated on a graduated schedule tied to length of service.
- Severance pay under the ESA is not the same thing as termination notice, and not every dismissed employee qualifies.
Somewhere in almost every severance release is a clause where you agree to waive "all claims" against your employer. It's tempting to read that as absolute. It isn't. Ontario law draws a hard line around a small set of entitlements that you generally can't waive ESA minimums away from in Ontario, no matter what the release says.
Understanding where that line sits matters, because it changes how you read a severance offer — some of the payment on the table may be entitlements you'd get regardless of whether you sign anything, while the rest is genuinely being negotiated.
The ESA Is a Floor, Not a Ceiling
The Employment Standards Act, 2000 sets minimum standards for almost every employment relationship in Ontario. Employers can offer more than the ESA minimums, and often do, but they cannot contract — or negotiate — an employee below them. A release provision purporting to waive statutory minimum notice or severance pay is generally unenforceable to that extent, even if the employee signed it willingly.
This matters because many employees assume the number on their severance offer represents pure negotiation. In reality, part of it may simply be what the law already guarantees them.
Minimum Notice of Termination
Employees dismissed without cause are generally entitled to advance written notice, or pay instead of notice, calculated on a graduated schedule tied to length of service. As of mid-2026 — verify the current figures before relying on them — the ESA schedule works roughly like this:
| Length of Service | Minimum Notice |
|---|---|
| Under 3 months | Not yet qualified |
| 3 months to under 1 year | 1 week |
| 1 year to under 3 years | 2 weeks |
| 3 years and up | 3 weeks, rising by 1 week per additional year |
| 8 years or more | Capped at 8 weeks |
This is the statutory floor only. Many employees are entitled to significantly more under the separate common-law "reasonable notice" standard, unless a valid, enforceable written contract limits them to the ESA minimum.
Statutory Severance Pay — A Separate Entitlement
Severance pay under the ESA is not the same thing as termination notice, and not every dismissed employee qualifies. As of mid-2026 — verify before relying on it — eligibility generally requires at least five years of service with an employer whose payroll meets a set threshold (or a qualifying large-scale permanent closure), and the entitlement is capped at 26 weeks of regular wages. If you don't meet the eligibility test, you may still be owed termination notice or pay in lieu, just not statutory severance pay on top of it.
Why a Waiver Doesn't Work
A release can validly resolve a dispute over how much notice beyond the ESA floor you're entitled to, or whether you have a claim for something like discrimination. What it generally cannot do is bargain you down below the ESA's own minimums, because those minimums exist as a matter of public policy, not just private contract. An employer that tries to structure a release to net out below the statutory floor is taking on real risk that the release — or at least that part of it — won't hold up.
What This Means When You're Reading an Offer
- Confirm the statutory minimum notice (and severance pay, if you qualify) is clearly accounted for in the total.
- Ask what portion of the offer is "above the floor" — that's the part that's actually being negotiated.
- Remember the ESA minimums are the floor for everyone; common-law reasonable notice, where it applies, is usually the real ceiling worth negotiating toward.
Frequently asked questions
Does this mean I always get at least the ESA minimum, no matter what?
Generally yes, for eligible employees dismissed without cause — the ESA minimums are a floor employers cannot contract below, subject to narrow exceptions like a genuine dismissal for cause.
What if my contract says I only get the ESA minimum?
A written employment contract can validly limit you to the ESA minimum instead of common-law reasonable notice, but only if the contract's termination clause is drafted properly and enforceable — a poorly drafted clause can fail entirely, leaving common-law notice back on the table.
Are ESA termination pay and ESA severance pay the same thing?
No. They're two distinct entitlements with different eligibility rules, and a dismissed employee might qualify for one, both, or neither depending on their length of service and their employer's size.
Do federally regulated employees get the same ESA protections?
No. Employees of federally regulated employers, such as banks, airlines, and telecommunications companies, follow the Canada Labour Code instead of Ontario's ESA — if you're unsure which applies, that's worth confirming early.
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