The Case of the Comma
Remember the online meme comparing "Let's eat grandma!" with "Let's eat, grandma!"? Well, here we have the legal version of it.
A judge in Nova Scotia recently invalidated part of an employment contract because it didn't have a comma. Is that nitpicking, you ask?
Not really, it's actually important. Here's why.
The part of the contract in question was the termination clause. Basically, a termination clause dictates what an employee is entitled to when they're terminated.
The case is named Brocklehurst v. Micco Companies Limited, 2025 NSSC 192.
This is the clause in that case:
Your employment may be terminated by Micco without cause, upon provision to you of the following payments:
(i) any portion of the annual salary and accrued vacation pay, if any, that has been earned by your [sic you] prior to the date of termination by [sic, but] not yet paid;
(ii) continued participation in Micco group health plan for such time as may be required under Nova Scotia Labour Standards legislation; and
(iii) only such minimum notice of termination, or pay in lieu thereof, and severance pay (if applicable) to which you are entitled under the Nova Scotia Labour Standards legislation.
In this case, the employee, Craig Brocklehurst, was a sales representative for a division of a company called Micco, which worked in the retail hospitality and alcohol beverage industries.
After working at Micco for 8 years and 4.5 months, Mr. Brocklehurst was terminated without cause. He was given his minimum entitlements under the Nova Scotia Labour Standards Code (which we'll refer to as the "Code"), which included 4 weeks of pay in lieu of notice.
Micco also gave him the option of receiving an extra 2 weeks in exchange for signing a release, which would prevent him from making any claims against the company.
He chose instead to sue Micco.
In court, Mr. Brocklehurst (through his lawyers) argued that the termination clause was unenforceable for two reasons:
- It is ambiguous and unclear, and
- It attempts to contract out of the Code, which is illegal.
What Was At Stake
The termination clause tried to restrict Mr. Brocklehurst to his minimum entitlements under the Code. If the termination clause had been valid, his employer would have been right to only give him 4 weeks of pay in lieu of notice (along with his other minimum entitlements).
However, under the common law, which is the default law when a termination clause is invalid, Mr. Brocklehurst's termination entitlements were somewhere in the realm of 8 months' pay in lieu of notice. Much more than the 4 weeks given to him.
Hence, the lawsuit.
The Decision – Why a Comma (or rather, the lack of one) Mattered
This was the portion of the termination clause that this case was ultimately decided over:
... only such minimum notice of termination, or pay in lieu thereof, and severance pay (if applicable) to which you are entitled under the Nova Scotia Labour Standards legislation.
The intention of this sentence was to restrict Mr. Brocklehurst to only:
- Such minimum notice of termination or pay in lieu thereof, and
- Severance pay,
to which he was entitled under the Code.
However, the judge noted that the lack of a comma after "severance pay" meant that it could be read to entitle Mr. Brocklehurst to only:
- Such minimum notice of termination or pay in lieu thereof, and
- Severance pay to which he was entitled under the Code.
In other words, "Such minimum notice of termination or pay in lieu thereof" might not be referring to his entitlements under the Code. This resulted in the termination clause not doing what it was intended to do — restrict Mr. Brocklehurst's entitlement to termination pay to the minimum 4 weeks prescribed by the Code.
The judge further found that, because there is no "severance pay" under the Code (it is instead called "pay-in-lieu of notice"), the term "severance pay" could instead be referring to common law termination pay.
Because of the ambiguity, the termination clause was found to be unenforceable, thus entitling Mr. Brocklehurst to his common law entitlements.
In the end, the court awarded Mr. Brocklehurst 8 months' pay in lieu of notice.
Lessons from this Case
As you may know, I used to be a journalist before becoming a lawyer. As a journalist, I was taught to write according to the Canadian Press style.
Notably, that style omits a kind of comma called the Oxford comma.
But should lawyers omit commas? Not when it could change the meaning of a sentence.
To understand why, let's look at a well-known example.
The title of C.S. Lewis' famous novel is written this way: "The Lion, the Witch and the Wardrobe". Note the lack of a comma after "the Witch". If that title were to use an Oxford comma, it would be "The Lion, the Witch, and the Wardrobe". In this case, it doesn't matter whether there's a comma in that location or not.
But let's say C.S. Lewis had been trying to refer to a specific lion, a specific witch, and a specific wardrobe. He might have written, "The Lion, the Witch, and the Wardrobe, which I keep in my house". The comma after "the Wardrobe" means that the qualifier "which I keep in my house" refers to all of the lion, the witch, and the wardrobe.
But what if he had written "The Lion, the Witch, and the Wardrobe which I keep in my house"? In that case, you might think that he might only keep the wardrobe in his house, and not the lion or the witch. And you wouldn't be faulted for that.
That's exactly what happened in Brocklehurst v. Micco Companies Limited, 2025 NSSC 192.
The lesson in this case? A small punctuation mark can make a big impact when it comes to the meaning of an employment contract.
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