Not automatically — a valid-looking without-cause clause can be destroyed by a for-cause clause sitting a few lines above it that nobody has ever tried to use.
Short answer
In Waksdale v. Swegon North America Inc., 2020 ONCA 391, the Court of Appeal for Ontario held that “An employment agreement must be interpreted as a whole and not on a piecemeal basis” and that courts “will not enforce termination provisions that are in whole or in part illegal” — so a for-cause clause that exceeds the ESA’s narrow wilful-misconduct exemption voids the whole termination provision, including a separate without-cause clause the employer never disputed and never intended to rely on.
Ontario Regulation 288/01 s.2(1) para 3 exempts only “An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer” from notice. Ordinary common-law just cause — the standard most employment-agreement templates still use — is broader than that, so a for-cause clause drafted to it authorises withholding notice in circumstances the Regulation does not exempt. ESA s.5(1) makes any contracting-out of an employment standard “void,” not read down to what the Act would have permitted, and a severability clause does not rescue the without-cause clause beside it — the Court declined to apply one for exactly that purpose.
The defect almost never sits in the clause a diligence team expects to use. Every for-cause clause in a target’s employment agreements needs to be checked against O. Reg. 288/01 s.2(1) specifically, not against a general sense that the contract “looks compliant.” A clause nobody has ever invoked can still poison the enforceable clause sitting next to it, converting a diligence figure priced at the statutory cap into common-law reasonable notice for every affected employee.
Civil Code of Québec art. 2092 provides that “the employee may not renounce his right to obtain an indemnity for any injury he suffers where insufficient notice of termination is given” — so a Quebec employer cannot cap reasonable notice by contract at all. There is no ESA-style statutory floor to draft down to in Quebec, and so no for-cause clause capable of contaminating a notice clause that was never enforceable in capped form to begin with.
The full mechanic, with the numbers, is worked through in forty-one employment contracts that all capped notice at the ESA minimum, and all failed on the same imported sentence about cause.
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