Termination “At Any Time”? A Review of Recent Developments from Li v Wayfair Canada Inc. and Jones v Strides Toronto

Two recent decisions from the Ontario Superior Court of Justice have added to the evolving debate over whether the phrase “at any time” will automatically render an otherwise valid termination provision unenforceable for failing to comply with Ontario’s Employment Standards Act, 2000 (ESA).

In Li v Wayfair Canada Inc.¹ (Li) and Jones v Strides Toronto² (Jones), the court distinguished the narrow and restrictive interpretations applied in the prior decisions of Dufault v Township of Ignace (Dufault) (in 2024) and Baker v Van Dolder’s Home Team Inc. (Baker) (in early 2025), offering welcome optimism for employers and signaling a shifting trend towards the restoration of a more balanced, practical and holistic approach to the interpretation of employment contracts in Ontario.

That said, with the subsequent release of Chan v NYX Capital Corp.³ (Chan) (which notably fails to make any reference to Li or Jones), and the abundance of seemingly inconsistent case law on the issue, employers (and their counsel) have been waiting on appellate-level review and guidance. Thankfully, we may not need to wait much longer as we understand the Court of Appeal for Ontario has decided to hear the appeals in Li and Baker together on January 16, 2026.

The Decisions: Li v Wayfair Canada Inc. and Jones v Strides Toronto

In Li, the plaintiff was employed by Wayfair Canada Inc. as a Senior Product Manager for less than nine months when his employment was terminated without cause. The employment agreement provided that Wayfair could terminate the plaintiff’s employment “at any time and for any reason,” subject to the plaintiff being provided with only his minimum statutory entitlements in accordance with the ESA.

Relying on the Ontario Superior Court of Justice’s earlier decision in Dufault, the plaintiff argued that the termination provision in the employment agreement was unenforceable for failing to comply with the minimum standards of the ESA, noting that an employer cannot, for example, terminate an employee “at any time” (e.g., such as following the conclusion of a job-protected leave).

The Court rejected the plaintiff’s argument, distinguishing the circumstances in Li from Dufault. For example, although the termination provision at issue in Dufault contained the words “at any time”, Justice Dow noted that its definition of “cause” did not refer to the applicable ESA standard (currently wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer), nor did the provision provide for payment of all types of wages to be payable over the minimum statutory notice period. Emphasizing the well-established principle that an employment contract must be read and interpreted as a whole, Justice Dow determined that the termination provision at issue had clearly and repeatedly incorporated the plaintiff’s minimum statutory entitlements under the ESA, and was therefore valid and enforceable.

In Jones, the plaintiff was employed by Strides Toronto as a Senior Manager of the Provincial Walk-In Program for a period of one year and four months when her employment was terminated without cause. The termination provision purported to limit the plaintiff’s entitlements to her minimum statutory entitlements under the ESA, plus an additional week of notice for each completed year of service.

Like Li, the plaintiff in Jones relied on Dufault arguing that the use of the words “at any time” in the “without cause” section of the termination provision rendered the termination provision unenforceable (by permitting an employer to terminate an employee for reasons prohibited by the ESA).

In rejecting the plaintiff’s reliance on Dufault, Justice Moore specifically held that “the Dufault decision does not stand for the proposition that the words “at any time” divorced from “sole discretion” are improper in an employment contract.” In other words, the use of the phrase “at any time” in a termination clause does not automatically render a termination provision unenforceable for non-compliance with the ESA.

Justice Moore did ultimately find that the termination provision was unenforceable on other grounds—namely, due to ambiguity in the “with cause” section of the termination provision that could, in Justice Moore’s view, have reasonably been interpreted to bring the termination provision in conflict with, or in potential conflict with, the ESA. As a result, the plaintiff was determined to be entitled to four months’ reasonable notice or pay in lieu of reasonable notice at common law.

To add a further wrinkle to the ongoing “at any time” debate, the Ontario Superior Court recently released its decision in Chan on August 6, 2025. In Chan, Justice Paraghi followed a very narrow interpretation of Dufault, finding that the impugned “at any time” language was offside the ESA on the basis that an employer “does not have an absolute right to dismiss an employee.” However, despite having been heard around the same time as Li and Jones (and having been released after each of these two decisions), the Court did not draw any reference to or otherwise distinguish them.

Key Takeaways

In comparison to the Ontario Superior Court of Justice’s earlier decisions in Dufault and Baker, these latest decisions in Li and Jones suggest a shifting trend towards the restoration of a more balanced, practical and holistic approach to the interpretation of employment contracts.

For now, employers welcome further jurisprudence confirming that the mere use of the phrase “at any time” in a termination provision is non-fatal and may not be enough, on its own, to render an otherwise valid termination provision unenforceable. What should matter most, as Li and Jones make clear, is whether a termination provision, when read as a whole, clearly and unambiguously complies with the minimum statutory requirements of the ESA.

Nonetheless, as the subsequent release of Chan illustrates, the time is ripe for appellate-level intervention. We will continue to monitor the development of these cases and will provide further updates once the Court of Appeal renders its decisions in the Li and Baker appeals scheduled to be heard in January 2026.

Regardless, to reduce the risk that an employment agreement is found to be offside the ESA and rendered unenforceable, Ontario employers remain encouraged to regularly review the terms of their employment agreements with experienced employment counsel.

If you have any questions or concerns about the enforceability of termination provisions or require assistance with reviewing and updating your employment agreements, please contact the authors of this post or others in the Bennett Jones Employment Services group.