The defendant relied on the decisions in Shore v. Ladner Downs and Machtinger in support of the proposition that paragraph 20.2 of the employment contract was not enforceable. In rejecting the defendant’s argument, Burnyeat J. observed the policy considerations explored in those cases and then stated at para. 24: It must be noted that each of those cases dealt with an attempt by an employer to create a contractual term that might conflict with the minimum provisions for notice provided under the Employment Standards Act. However, in the case at bar, the contract of employment of the plaintiff was only for 12 months. Accordingly, it would not have been possible for this particular paragraph to conflict with the minimum requirements set out in the Act. In fact, the provision of one month’s notice was in excess of what would be available under the Act if the contract of employment had been silent. This is the case no matter when the termination took place within the contract period. Paragraph 20 of the employment contract is not void because it did not attempt to reach an agreement “to waive” the requirements of s. 42(1) of the Employment Standards Act which set out minimum weeks of notice. There are no circumstances under which the provision of one month’s notice would be less than what would be available to an employee under a one-year contract.
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