The Render Decision: Court of Appeal Ensures That Employees Will (Almost) Always Receive Their ESA Entitlements

A recent decision from the Ontario Court of Appeal has made it nearly impossible for Ontario employers to terminate employees without paying them at least their statutory minimum termination entitlements under the Employment Standards Act (“ESA”).

Last month, in the decision of Render v ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310 (CanLII) (“Render”), the Court of Appeal held that when an employee is terminated for just cause, they must still receive their minimum termination entitlements under the ESA unless the employer can demonstrate that the employee engaged in wilful misconduct that was “pre-planned.” In practical terms, the decision means that in order to terminate an employee with no entitlements of any kind, Ontario employers will need to undertake investigations aimed at uncovering evidence of “pre-planning.”