Canada: Ontario Court Of Appeal Unambiguously Clarifies The Interpretation Of Termination Clauses

Last Updated: August 3 2018
Article by Heather Power

At common law, employees are presumed to be entitled to reasonable notice upon termination. This presumption can be rebutted by a termination clause, a contractual term which restricts an employee's entitlement to notice, severance and/or pay in lieu to something less than the often generous reasonable notice entitlement.

Given the ability of a termination clause to limit an employee's common law entitlement, it is unsurprising that in recent years the courts have enforced rigorous standards in the interpretation of termination clauses. These recent cases have left employers uncertain of the enforceability of their termination clauses and apprehensive as to how the courts will treat them. At present, termination provisions must be unequivocal, reasonable, meet the employee's minimum entitlements under the employment standards legislation, and must explicitly displace an employee's entitlement to notice at common law. The courts have also made it clear that any ambiguity contained in a termination clause will be strictly interpreted against the employer.

A recent decision by the Ontario Court of Appeal has provided some much needed certainty as to the interpretation of termination provisions. In Amberber v IBM Canada Ltd., 2018 ONCA 571, the Ontario Court of Appeal reaffirmed the principle that termination clauses must be interpreted as a whole and held that courts should not seek to find ambiguities where drafting is clear and unequivocal.

Noah Amberber ("Mr. Amberber") worked for IBM for over fifteen (15) years when his employment was terminated without cause. IBM sought to rely on the termination clause in Mr. Amberber's contract in order to limit his entitlement to notice. The termination clause provided that Mr. Amberber would receive the greater of either one month's base salary or one week's base salary for each completed six-month period of employment. The termination clause expressly stated that this payment was inclusive of all notice and severance owed under provincial employment standards legislation. Finally, the clause stated that if the entitlements outlined in the termination clause were less than Mr. Amberber's statutory entitlements, then he would be entitled to receive the greater notice and severance in accordance with the employment standards legislation instead.

At trial, Mr. Amberber argued that the termination clause in his employment agreement failed to rebut the presumption at common law that he was thus entitled to reasonable notice of termination.

The motion judge held that the termination clause consisted of three parts. First, the "options provision" provided either one month's notice or one week's notice for every six months worked. Second, the "inclusive payment provision" stipulated that the payment was inclusive of all entitlements under the relevant employment standards legislation. Third, the "failsafe provision" stated that Mr. Amberber would receive his notice and severance entitlement under provincial employment standards legislation if those benefits were greater than the entitlements set out in the termination clause.

The motion judge held that it was not clear that the "inclusive payment provision" was meant to apply to the "failsafe provision". She also found that the "failsafe provision", when read on its own, did not rebut the common law presumption of reasonable notice. Finding an ambiguity, the motions judge applied the principle of contra proferentum, and determined that the ambiguity must be resolved in Mr. Amberber's favour.

The Court of Appeal overturned the motion judge's decision, holding that the lower court erred by finding an ambiguity where none existed. Writing for the Court, Justice Gray reaffirmed the principles of contractual interpretation with respect to employment contracts. Noting that employment contracts are to be interpreted differently than ordinary commercial contracts, the Court found that the motion judge made a fundamental error by bifurcating the termination clause into three parts, and interpreting each part individually rather than reading the termination clause as a whole. The Court held that when read as a whole, the termination clause was clear and unambitious.

The Court cited its 1997 decision in Chilton v. Co-operators General Insurance Co, for the principle that "[t]he court should not strain to create an ambiguity where none exists".

The Court concluded that the motion judge failed to apply the well-established principles of contractual construction. Rather than interpreting the termination clause as a whole, she strained to find an ambiguity where none existed, and she deviated significantly from the text of the clause. Having found so, the Court concluded that the motion judge committed extricable errors of law that were reviewable on a standard of correctness.

Amberber will likely serve to be a helpful decision for Ontario employers. While the Court of Appeal made it clear that employment contracts will be interpreted differently than standard commercial contracts, it also firmly stated that courts should not stretch to find ambiguities where drafting is clear. Finally, Amberber makes it clear how important it is to include a "failsafe" provision in a termination clause. Overall, Amberber stands for the importance of careful and unambiguous drafting. As such, employers should exercise a high degree of caution when drafting termination clauses, and should always seek legal advice to ensure that the termination clause meets the current requirements of the law.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
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