Canada: Employees Dismissed During A Probationary Period May Still Be Entitled To Notice Of Termination

Last Updated: March 12 2013
Article by Laurie Jessome

Many employers in Ontario use a probationary period to assess the suitability of a new hire.  Contracts of employment will often stipulate that employees may be dismissed with or without notice, with or without cause during their probationary periods. Since the Employment Standards Act, 2000 (the “ESA”) states that employees with less than three months of service are not entitled to any notice of termination or pay in lieu of notice, employers might be tempted to assume that any employee who is dismissed during her contractual probationary period is not entitled to any notice of termination. A recent decision of the Ontario Small Claims Court calls this practice into doubt.

In Cao v. SBLR LLP, the Court considered a claim for pay in lieu of notice of termination by Suyi Cao, an accountant employed by SBLR LLP for just over a month. At the time Ms. Cao was hired, she signed an offer letter which provided for a 90 day probationary period. She was also provided with a copy of the SBLR LLP employee manual, which indicated that employees who were experiencing performance issues would be asked to attend meetings to discuss their performance and would be given suggestions for improvement. 

Approximately one month into her employment with SBLR LLP, Ms. Cao was notified that her employment was being terminated. She was advised in that meeting that she was not performing at the level required by SBLR LLP and that the company needed her to obtain her Certified General Accountant (“CGA”) designation by the following summer, which she had advised was impossible due the course schedule. It should be noted that Ms. Cao’s offer of employment made no reference to the CGA designation.

At trial, SBLR LLP alleged that it had just cause to terminate Ms. Cao because she had represented to the company that she would complete her CGA courses by the summer of 2009 when, in fact, she would not be in a position to do so and, further, because she had misled SBLR LLP regarding her experience with preparing T2 tax returns.

Ms. Cao testified that the termination meeting was the first time she had been given any negative feedback about her work. The termination letter did not allege just cause for her dismissal and her Record of Employment indicated that she had been “terminated involuntarily without cause”. Ms. Cao was not provided with any pay in lieu of notice of termination.

The deputy judge rejected the just cause allegations, finding that the defendant had no evidence that Ms. Cao had misled the company about any of her abilities or the anticipated completion of her CGA designation. The deputy judge then turned to the question of whether or not the plaintiff could be dismissed during the probationary period without notice or pay in lieu of notice. The deputy judge held that employers who dismiss any employee during the probationary period are bound to act “fairly and with reasonable diligence” in determining whether or not the proposed employee is suitable to the job. Further, the probationary employee must be given a reasonable opportunity to demonstrate his or her ability to meet the standards of the employer. 

Since the defendant had led no evidence at trial supporting its conclusion that Ms. Cao was unable to perform the requirements of her job and could not demonstrate to the Court that Ms. Cao had been given a fair opportunity to respond to the alleged concerns regarding her performance. The deputy judge concluded that SBLR LLP did not have just cause to terminate Ms. Cao’s employment and, further, that it had terminated her during the probationary period in bad faith. Accordingly, Ms. Cao was entitled to common law notice of termination, which the deputy judge fixed at four months.

Although this is a decision of the Small Claims Court and thus may not be given a great deal of weight by Superior Court judges, there are certain lessons that can be taken from the ruling.  First, although the contract between Ms. Cao and SBLR LLP had a probationary period, the agreement did not state specifically that Ms. Cao would not receive any notice of termination if she was let go during the probationary period and it did not refer at all to the minimum standards prescribed by the ESA. Including such language in the contract would have given SBLR LLP a better defence against Ms. Cao’s claim for common law notice of termination. 

Second, the deputy judge placed a great deal of emphasis on the section of the employee manual that told employees they would be given opportunities to improve poor performance.  Employers must always follow their own policies and procedures as the Courts view these documents as promises you have made to your employees. If you fail to honour your own policies when dealing with employees you are at risk of being found to have acted in bad faith. 

Third, if there are particular qualifications, skills or professional designations that you believe are essential to a job, it is advisable to refer to them in both the job posting and the offer letter. You may also wish to make the offer of employment conditional upon the applicant confirming that they do, in fact, possess the qualifications referred to in their resume.

This decision illustrates the risk of failing to communicate with your employees at all stages of the employment relationship, from hiring to firing. If Ms. Cao’s employer had clearly communicated its expectations regarding her CGA designation on hiring, had met with her during the employment relationship to communicate its concerns and then implemented the termination only after she failed to address such concerns, it is unlikely that there would have been a finding of bad faith and the company would have been in a far better position to support its just cause position. It’s also important to remember that just inserting a reference to a probationary period may not be sufficient to preclude a claim for common law notice of termination during the first three months of employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Laurie Jessome
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions