A recent Ontario decision highlights legal pitfalls on both sides of the employment relationship: the risks multinational employers face when relying on standardized global employment contracts, and the consequences employees may face for failing to meet their mitigation and disclosure obligations.

In Boyle v Salesforce.com Canada Corporation [Boyle], the Ontario Superior Court of Justice (the “Court”) struck down a termination clause in a global employment agreement as unenforceable. The clause, which attempted to apply uniform terms across jurisdictions, was found to be ambiguous and non-compliant with Ontario’s Employment Standards Act, 2000 [ESA].

The Court also criticized the employee for failing to provide his Notice of Assessment until just before the hearing. That omission hindered the employer’s ability to assess mitigation and led the Court to reduce the notice award due to an adverse inference.

Boyle serves as a dual caution. For multinational employers, it reinforces that “one-size-fits-all” agreements—especially those using U.S.-style “at-will” language—must be carefully adapted to local legal standards. For employees, it is a reminder that unreasonable refusals to disclose evidence of mitigation, or delayed disclosure of such evidence, can significantly jeopardize their entitlements.

Background

In Boyle, the employee worked for Salesforce, a software company with operations in various countries, including the United States and Canada, for approximately eight years. After he was terminated without cause in January 2023, the employee brought a claim for wrongful dismissal.

The employee argued that the termination clause in his employment agreement did not comply with the ESA and was unenforceable, and that he is therefore entitled to common law reasonable notice of 14 months.

The termination clause was structured into subclauses, with one subclause addressing termination for cause. This subclause reserved the right of the employer to terminate the employee’s employment “at any time and without notice (or pay in lieu) for Cause”. “Cause” was defined in schedule A of the employment agreement as “any act or omission by you that would in law permit the Company to, without notice or payment in lieu of notice, terminate your employment”.

As a condition for accepting the employment offer, the employee was required to sign a “global employees handbook” that was annexed to the employment agreement. The handbook contained the following clauses and acknowledgment:

The company is regulated by different local laws where it operates globally. If there is a conflict in these laws, you should consult the Company’s legal department to resolve the conflict appropriately. In general, local laws will apply.

Except for certain non-U.S. jurisdictions, the Company’s employment relationship with all of its employees is one of employment “at will,” which means that employment may be terminated by either the employee or the Company at anytime, with or without cause. If you are located outside of the U.S. and have an employment agreement, the terms of those agreements will prevail if there is any conflict with the policies in this handbook. However, all other policies will apply. […]

I understand that: […] The policies in the Global Employee Handbook are not a contract and that my employment is “at will.” This means that the Company or I can end my employment at any time with or without cause or advance notice. […]

The employee argued that the “for cause” subclause wrongly suggests that the employer could withhold his minimum notice if he is let go for cause, even if the type of “cause” doesn’t meet the high-threshold “wilful misconduct” standard set by the ESA.

The employee relied on a previous decision, Waksdale v Swegon North America Inc [Waksdale], to argue that the employment agreement must be interpreted as a whole. In other words, it does not matter that the employee was dismissed without cause, while the problematic subclause deals with termination for cause; if any part of the termination clause violates the ESA, it can render the entire clause unenforceable.

Unsurprisingly, the employer argued that the clause was enforceable and limited the employee’s entitlements to ESA minimums. In the alternative, the employer argued that the employee’s damages should be reduced for his failure to appropriately mitigate and for his refusal to produce his Notice of Assessment (“NOA”) during the mitigation period. In particular, the employer argued that given the employee’s failure to produce the NOA, the Court should presume that the employee earned income during the common law notice period that should be set off against any damages he is entitled to.

Decision

Termination Clause Unenforceable

The Court held that the termination provisions in the employment agreement were unenforceable due to ambiguity and non-compliance with the ESA. It emphasized that an Ontario employee could not reasonably understand the terms governing termination at the time of signing, particularly given the employer’s use of a one-size-fits-all contract across jurisdictions.

This issue was compounded by the global employees handbook, which described the employment relationship as “at-will” and instructed employees to consult the company’s legal department for clarification before starting work. The Court found this expectation impractical, emphasizing that employers—not prospective employees—must provide clarity up front.

Notice Period Reduced for Late Disclosure of NOA

The Court determined that the employee was entitled to 11 months of notice based on age, tenure, and position. However, the award was reduced to 8 months because the employee failed to provide his NOA until just before the hearing. The Court drew an adverse inference that he may have earned income during the notice period and reduced the damages accordingly.

Key Takeaways for Employers

Tailor contracts for Ontario’s legal landscape: Employers operating in multiple jurisdictions must ensure that their employment contracts comply with local legal requirements and provide clear, ESA-compliant terms up front. Standardized global agreements—especially those relying on U.S.-style “at-will” language—will not withstand scrutiny in Ontario if they create ambiguity, rely on impractical guidance (such as by directing candidates to consult company counsel for clarification, as was the case in Boyle), or fail to meet minimum standards under the ESA. As confirmed in Waksdale, if any portion of a termination clause violates the ESA, the entire clause is rendered void.

Although the employee in Boyle did not raise the argument, it is worth noting that Ontario courts have recently found that termination clauses containing “at any time” language are likely unenforceable. In Dufault v The Corporation of the Township of Ignace, the Court held that such language could be interpreted as permitting termination during protected leaves (e.g., pregnancy or parental leave)—a clear violation of the ESA. This principle was reaffirmed in Baker v Van Dolder’s Home Team Inc, a more recent decision from this year. These cases underscore the importance of ensuring that employment agreements appropriately consider Ontario’s ever-evolving jurisprudence on termination clause enforceability.

Integrate handbooks with caution: Global handbooks that refer to “at-will” employment or contain language inconsistent with statutory rights in Ontario can undermine the enforceability of termination clauses, even if the contract says local laws will apply. Employers should ensure that any handbook or ancillary document is harmonized with the employment agreement and reviewed for compliance with provincial standards.

Hold employees accountable for mitigation, but come prepared: While the court in Boyle did reduce the notice period due to the employee’s delayed disclosure of his Notice of Assessment, this outcome was based on the employer making a clear argument and producing a record showing that mitigation was at issue. Employers should preserve and pursue mitigation evidence proactively to support similar arguments in future disputes.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.