Toronto, ON – August 12th, 2026 – Just as employers celebrated a restoration of balance in Baker (see our analysis here: Finally, Some Good News for Employers: Ontario Court of Appeal Brings Clarity and Sanity to Termination Clause Interpretation – Protea LLP), the Ontario Court of Appeal issued another decision last week reminding us that the Employment Standards Act, 2000 (the “ESA”) remains fully operational. In Wigdor v. Facebook Canada Ltd., 2026 ONCA 572, the Court confirmed that compensation, in whatever form it takes, remains subject to the ESA.
A Long Time Ago, In a Universe Not So Far Away…
Facebook Canada started working with Wigdor and his company in 2016. In 2020, it purchased Wigdor’s company and hired him on directly as an employee. As part of his compensation package, Wigdor received Restricted Stock Units (“RSUs”) that vested over time and required no purchase price. Once they vested, they were his. Like most equity awards, the RSUs were governed by a series of plan and grant documents, incorporated by reference into his employment agreement.
In the final relevant governing documents, which had been slightly amended over time, the entitlement to continued vesting of RSUs on termination was set out as follows:
For the avoidance of doubt, unless explicitly required by applicable legislation, the date on which a Termination of Employment occurs and all unvested RSUs are forfeited will not be extended by any period during which notice, pay in lieu of notice or related payments or damages are provided or required to be provided under local law (including, without limitation, statute, contract, regulatory law, and/or common or civil law). [Emphasis added.]
In December 2023, Facebook Canada terminated Wigdor’s employment.
Wigdor sued for wrongful dismissal. At trial, the Court determined that the termination clause in his employment agreement was unenforceable and awarded wrongful dismissal damages, excluding any RSU value, for a 10-month common law notice period. In her decision, the trial judge found that the ESA provisions governing termination – or, more specifically, pay in lieu of notice – did not require continued RSU vesting during the statutory notice period. In other words, the language governing the RSU termination rights was ESA-compliant. That determination mattered. A lot. If the RSU language violated the ESA, Wigdor stood to recover an additional USD$4.7 million in compensation, representing the RSUs that would have vested over the 10-month common law notice period.
Wigdor appealed the decision to exclude the RSU value.
I Have a Bad Feeling About This…
That left the Court of Appeal with a narrower but highly consequential question: did the RSU documents unlawfully cut off compensation that should have continued through the ESA notice period?
The Court of Appeal reiterated a familiar ESA principle: employers cannot extinguish terms or conditions of employment during the statutory notice period. Whether notice is worked or paid out, employees must receive the compensation they would have earned during that minimum ESA period. That includes RSU vesting rights. By cutting off vesting immediately upon termination, the plan language attempted to do something the ESA does not permit.
Facebook’s final hope rested on a familiar weapon: the savings clause. The governing language stated that unvested RSUs would be forfeited unless “explicitly required by applicable legislation”. The Court was not persuaded.
The problem? The language was neither sufficiently specific nor free from ambiguity. And in Ontario employment law, ambiguity rarely lands on the employer’s side of the galaxy.
Wigdor’s appeal was allowed. The Court awarded Wigdor the USD$4.7 million that would have vested over the 10-month common law notice period.
Which Episode Is This Again?
On the heels of Baker, Wigdor is a key reminder that termination entitlements – whether they are found in employment agreements, RSU plans, bonus plans, or other governing documents – must comply with the ESA. If a provision cuts off compensation or benefits before the end of the statutory notice period, it may be vulnerable to challenge.
If you have concerns about the termination clauses in your employment agreements, bonus plans, or equity documents, your Protea LLP team is here to help.
May the (en)force(ability) be with you.
