In Bertsch v. Datastealth Inc., 2025 ONCA 379, the Court of Appeal for Ontario addressed the enforceability of a termination clause through the lens of a Rule 21 motion. The appellant was terminated without cause after 8.5 months of employment. Their employment contract provided that, upon termination with or without cause, they would receive only the minimum entitlements under the Employment Standards Act, 2000 (ESA). The appellant argued the termination clause was void for potentially violating the ESA and sought damages for wrongful dismissal.
The central legal issue revolved around whether the termination clause was enforceable, and more specifically, whether the issue could properly be decided under Rule 21.01. The Court confirmed that interpretive questions regarding the enforceability of a termination clause are appropriate for Rule 21 motions, which can dispose of legal issues without a full trial when the facts are not in dispute. The motion judge found no tenable claim as the termination clause did not contravene the ESA.
The appellant contended that the clause was ambiguous. However, the Court reiterated that ambiguity requires more than the possibility of multiple interpretations; it must reflect a reasonable lack of clarity. The Court affirmed that the clause in question was clear as it guaranteed ESA minimums and explicitly excluded common law notice.
Bertsch v. Datastealth Inc emphasizes that courts will enforce termination clauses that clearly align with statutory minimums, and that Rule 21 remains a powerful procedural tool to resolve such questions early and without the need for a full trial. Employees seeking to challenge a termination clause must demonstrate a genuine ambiguity or ESA violation and are encouraged to seek legal counsel. At Gilbertson Davis LLP, our lawyers have experience with civil litigation and contract disputes. Please contact Gilbertson Davis LLP to schedule a consultation with one of our lawyers.
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