HR Support And Advisory

A probation period in Canada allows an employer to assess fit before the full weight of termination entitlements applies. During probation, statutory termination notice requirements are typically reduced or waived. However, this does not mean you can terminate without obligation.

How Provincial Rules Differ

• Ontario – The ESA allows a probation period of up to three months, during which termination notice is not required. However, if the employment contract does not include a probation clause, the employee may have common law notice rights from day one.
• British Columbia – No statutory probation period exists under the ESA. Employees are entitled to termination notice after three consecutive months of employment. A contractual probation clause can limit common law notice, but must be carefully drafted.
• Alberta – Employees are entitled to termination notice after 90 days of employment. Probation clauses in contracts can modify this, but must be clear and enforceable.
• Québec – The Labour Standards Act provides no termination notice for employees with less than three months of continuous service. However, Québec’s Civil Code may still impose reasonable notice obligations.

Common Mistakes We See

• No Written Probation Clause – If the employment contract does not explicitly state the probation period and its terms, Ontario courts have held that common law notice applies from the start.
• Probation Periods That Are Too Long – A 6 month probation in a jurisdiction with a 3 month threshold may not be enforceable.
• Assuming Probation Means At Will – Even during probation, human rights protections, workplace safety obligations, and benefit entitlements may apply.
• Using a US Style Probation Template – Courts assess enforceability based on Canadian law, not the employer’s home jurisdiction.