Jordan Epstein Warns 2020 Waksdale Ruling Can Void Entire Termination Clauses

1 articles · Updated · HRD America · Aug 4

Sept. 29 is when Gowling WLG partner Jordan Epstein will tell HRD Employment Law Masterclass attendees that contracts untouched since the 2020 Waksdale ruling may carry unquantified termination liability.
Waksdale lets one ESA-offside provision invalidate an employer’s entire termination framework, Epstein said, and Ontario courts have kept tightening scrutiny rather than retreating from that standard.
2024’s Dufault decision underscored the risk: the Ontario Court of Appeal awarded a terminated employee more than $157,000 after finding a for-cause clause exceeded the ESA’s narrow wilful-misconduct threshold.
Epstein said the danger extends beyond termination wording to other contract terms, while bonus and incentive pay can also enlarge damages unless employers use very specific limiting language.
Across Canada, he said province-specific templates are safer than a single national form, with Quebec requiring separate treatment because of civil-law rules and French-language requirements.