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Ontario Court of Appeal Confirms RSU Forfeiture Provisions May Violate the ESA
The Ontario Court of Appeal's decision in Wigdor v Facebook Canada Ltd., 2026 ONCA 572 is an important reminder that equity compensation arrangements must comply with the Employment Standards Act, 2000 ("ESA"). The Court of Appeal held that provisions preventing restricted stock units ("RSUs") from vesting during the statutory notice period violated the ESA and were therefore unenforceable.
Finally, a practical and common-sense approach to termination clause interpretation
In a significant win for employers, the Ontario Court of Appeal has upheld the enforceability of termination clauses in Baker v. Van Dolder's Home Team Inc.; Li v. Wayfair Canada ULC. 2026 ONCA 568, rejecting the increasingly technical approach that has dominated termination clause litigation in recent years. Both of these cases came before the Court of Appeal to seek judicial determination, in part, on whether the phrases “at any time” or “for any reason” invalidated a termination clause.
What Ontario Employers Need to Know: ESA Changes Coming January 1, 2026
Now, before you know it, January 1, 2026 will be upon us, and those hiring changes to Ontario’s Employment Standards Act, 2000 (ESA) will be in force, reshaping hiring practices for employers with 25 or more employees.
The government is introducing these changes to increase transparency, fairness, and accountability in recruitment.
The following is a summary of the changes, and how employers should prepare.
Good News for Employers: Wayfair Upholds “At Any Time” Termination Language
Employers in Ontario have faced challenges with termination clauses in employment agreements, particularly when using phrases like “at any time,” which courts have sometimes found to violate the Employment Standards Act (ESA). However, in Li v. Wayfair Canada ULC. (2025 ONSC 2959), the Ontario Superior Court upheld a termination clause using that exact phrase, offering positive news for employers. This decision provides clarity on enforceability and signals a shift that could impact how employment contracts are drafted moving forward.
Ontario Court Confirms Enforceability of ESA-Only Termination Provision
Employers and employees in Ontario have long been permitted to contract out of common law notice entitlements, provided their agreements meet or exceed statutory minimums under the Employment Standards Act, 2000 (ESA). However, in recent years, courts have closely scrutinized termination provisions, leading to increased uncertainty for employers.
The recent Ontario Superior Court of Justice decision in Bertsch v. Datastealth Inc., 2024 ONSC 5593, provides welcome clarity, reaffirming that properly drafted termination provisions will be enforced—even when they limit an employee’s entitlements to ESA minimums. The decision also demonstrates how employers can use procedural tools like Rule 21 motions to resolve contractual interpretation disputes efficiently.
Another Legal Update! Ontario Tables Working for Workers Five Act, 2024 (aka Bill 190).
On May 6, 2024, the Ontario government set in motion Bill 190, the Working for Workers Five Act, which builds on the previous four “Working for Workers” Bills.
Recent Updates in Ontario Employment Law
The Ontario Government tabled Bill 149, Working for Workers Four Act, 2023 (“Bill 149”) on November 14, 2023.
Time to Revisit Your Company’s Vacation Policy…
Vacation entitlements in Ontario can be tricky because of the minimum entitlements in Ontario’s Employment Standards Act, 2000 (“ESA”) and the reality that many employers provide a greater right or benefit than the ESA minimums.
New Licensing Regime for Temporary Help Agencies and Recruiters Now In Force
As of July 1, 2023, Ontario will require temporary help agencies (THAs) and recruiters to participate in a new licensing regime as part of the Ontario Employment Standards Act, 2000 (the “ESA”).
Enhanced Protections for Remote Workers and Increased Fines under Bill 79
On March 13, 2023, the Minister of Labour, Immigration, Training and Skills Development announced proposed amendments to the Employment Standards Act, 2000 (the “ESA”) and other related statutes under Bill 79, the Working for Workers Act, 2023. This is the third iteration of this Act responding to the changing realities of the modern workplace, principally in light of the COVID-19 pandemic.
The Electronic Monitoring Policy
On April 11, 2022, Bill 88, the Working for Workers Act, 2022 (the “Act”), received Royal Assent, amending the Employment Standards Act, 2000 (the “ESA”) to require employers to develop “electronic monitoring” policies.
Update on Recent Changes: IDEL and Vaccinations
There was yet another change made by the Ontario government as it relates to the Infections Disease Emergency Leave (“IDEL”).