- The Employment Standards Act, 2000 sets a statutory floor — a graduated schedule of minimum notice, and for some longer-service employees at larger employers a separate severance pay…
- A termination clause is commonly found void where it: - Attempts, in any realistic scenario, to provide less than the ESA minimum notice or severance - Is genuinely ambiguous about…
Finding out that your employment contract's termination clause is void or unenforceable feels like good news — and it usually is. But it's worth understanding exactly what happens next, because a common misconception is that a void clause simply gets "topped up" to the legal minimum. That's generally not how it works.
Ontario law treats a void termination clause very differently from a valid but modest one. The distinction can be worth a substantial difference in what you're owed.
Two Very Different Outcomes
| Valid, Enforceable Clause | Void, Unenforceable Clause | |
|---|---|---|
| What governs your notice | The clause itself, as written | The common-law "reasonable notice" standard |
| Where the number comes from | The specific formula in your contract | A case-by-case assessment of your circumstances |
| Typical outcome | Often close to the ESA statutory minimum | Often, though not always, more generous than the ESA minimum |
| Certainty | High — the contract sets the figure | Lower — assessed individually, with no fixed formula |
Why a Void Clause Doesn't Just "Snap Up" to the Minimum
The Employment Standards Act, 2000 sets a statutory floor — a graduated schedule of minimum notice, and for some longer-service employees at larger employers a separate severance pay entitlement, that no employer can contract below. As of mid-2026, the ESA's minimum notice schedule runs from the shortest period for employees under a year of service up to a maximum for long-tenured employees; figures and thresholds change periodically, so verify the current schedule before relying on it. A common assumption is that if a contract's termination clause is struck down for trying to go below that floor, the "fix" is simply to apply the ESA minimum instead.
That is generally not the remedy Ontario courts apply. Instead, when a termination clause is found void, courts typically treat the clause as if it were never there at all — not as a clause that gets corrected upward to the legal floor. With no valid contractual clause governing notice, the default common-law standard of "reasonable notice" fills the gap instead. That standard is assessed on an individual, fact-specific basis — there is no fixed formula — and has historically tended to produce more generous outcomes than the bare statutory minimums, though every case depends on the specific circumstances.
Why Clauses Get Struck Down in the First Place
A termination clause is commonly found void where it:
- Attempts, in any realistic scenario, to provide less than the ESA minimum notice or severance
- Is genuinely ambiguous about whether it complies with the ESA
- Fails to address a way employment could legally end, leaving a gap the drafter didn't cover
- Was drafted using outdated language that no longer reflects current legal requirements
What Doesn't Change
Even where a clause is void and common-law notice applies, some things stay the same:
- You still generally have a duty to mitigate your damages — for example, by making reasonable efforts to find comparable work. Failing to do so can reduce what you ultimately recover.
- ESA minimum notice, and, where you qualify, ESA severance pay, remain available as a statutory floor regardless of how the common-law analysis plays out — the point of the void-clause rule is that your entitlement isn't capped there, not that the statutory minimums disappear.
- Employers can still argue for a lower common-law figure based on your specific role, age, length of service, and how readily comparable work is likely available to you.
Frequently asked questions
How do I know if my termination clause is actually void, or just modest?
This requires a close read of the specific wording against current legal standards — a clause can look reasonable to a non-lawyer and still be technically unenforceable, or vice versa. A lawyer reviewing your actual contract is the reliable way to find out.
Does a void clause mean I automatically get a large payout?
No. It means your notice entitlement is assessed under the common-law standard instead of the contract's formula, which is often, but not guaranteed to be, more generous. The actual amount still depends heavily on your individual circumstances.
What if my employer already paid me the ESA minimum after firing me?
That payment generally satisfies your statutory minimum entitlement, but if your termination clause is void, you may still have a claim for the difference between that amount and what common-law reasonable notice would provide. Signing a release in exchange for that payment can affect this — read any release carefully before signing.
Is it worth getting a contract reviewed even if I haven't been terminated yet?
Yes. Knowing whether your current termination clause is likely enforceable, before anything happens, puts you in a much stronger position if your employment does end.
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