Probationary Periods in Canada: Employer's Guide

What Ontario's ESA actually says, and what it doesn't

The Ontario Employment Standards Act does not define “probationary period.” What the ESA does establish is a minimum service threshold: an employee who has been employed for fewer than three months is not entitled to ESA termination notice or pay in lieu of notice. This is the statutory basis for the common-law understanding of a “probationary period”, it's not that you have special probationary powers, it's that the ESA minimum notice entitlement simply hasn't kicked in yet.

Once an employee passes the three-month mark, ESA termination minimums apply immediately: one week's notice (or pay in lieu) for one year or more of service, plus one additional week per year of service up to eight weeks. These are minimums, common law entitlements may be far greater, as discussed below.

The key implication: if you want a genuine probationary window with clearly defined expectations, it must be explicitly created in the written employment contract. An informal oral understanding that “the first three months are a trial period” does not create enforceable probationary conditions beyond the ESA threshold.

What you can do during probation in Ontario

During the first three months of employment, an Ontario employer can terminate an employee without providing ESA notice or termination pay, provided the employment contract was entered into in good faith and the termination is not for a discriminatory reason. The termination must still comply with the Ontario Human Rights Code, you cannot terminate a probationary employee because you learned they are pregnant, disabled, or a member of a protected group.

A few practical points:

• You do not need to prove just cause to terminate during the ESA three-month window, you simply need the termination to not be discriminatory.
• You should still provide a brief written termination notice for documentation purposes, even if no ESA notice is legally required.
• You can assess fit, performance, attendance, and culture match during this period.
• You can extend a probationary period beyond three months if your employment contract explicitly allows this, but once extended beyond three months, ESA notice obligations begin to apply regardless of what the contract says.

What you cannot do during probation

Probation does not create a discrimination-free zone. The Ontario Human Rights Code applies from the first day of employment. You cannot terminate or treat a probationary employee differently because of:

• Race, ancestry, colour, or place of origin
• Sex, gender identity, or sexual orientation
• Pregnancy or breastfeeding (sex-related grounds)
• Disability (including mental health conditions)
• Family status or marital status
• Religion or creed
• Age (18 and older)

If a Human Rights Tribunal application is filed by a probationary employee, you will need to demonstrate that the termination was based on legitimate performance or fit concerns, not any of the above grounds. This is why documenting performance concerns in writing throughout the probationary period is essential. The employee needs no minimum service time to file a human rights complaint.

Additionally, you cannot retroactively extend probation informally. If you want to keep someone on a longer assessment period, the contract must have provided for this extension, and the employee should be explicitly notified in writing before the original probationary period expires.

Common law reasonable notice: why “probation” doesn't end after three months

This is the most misunderstood aspect of probation for Ontario employers. The ESA notice minimums are exactly that, minimums. Common law implies a “reasonable notice” entitlement on top of the ESA, based on factors including the employee's age, length of service, character of the employment, and availability of similar work. Critically, common law reasonable notice applies even after only a few months of service, Ontario courts have awarded 3–4 months of notice to employees terminated after just 6–12 months with no prior warning.

The only way to limit termination exposure to ESA minimums is to include a clearly worded termination clause in the employment contract that limits notice to ESA statutory minimums. Courts scrutinize these clauses carefully and will void them if they violate the ESA on their face, lack mutual consideration, or are unconscionable. Template termination clauses from the internet frequently fail this test, use a clause reviewed by an Ontario employment lawyer.

Put simply: “three-month probation” in your job offer does not limit your notice exposure to the ESA minimum after that period without a valid contractual provision doing so explicitly.

How to document probationary performance

Solid documentation is your primary defence if a terminated probationary employee files a complaint. Establish performance expectations in writing at hire. Hold scheduled check-ins (30/60/90-day) and document the substance of those conversations, what was discussed, what feedback was given, and how the employee responded. If performance concerns arise, issue them in writing with a clear description of what needs to improve and a timeline.

When terminating during probation, prepare a brief written summary of the concerns that led to the decision. Keep it factual and free of any language touching protected grounds. “The volume and quality of work did not meet the expectations set at hire” is defensible. “We're not sure they're a culture fit” is vague and invites challenge. Retain all performance records for at least two years from the date of termination.

For related guidance on Ontario employment obligations, see the full Ontario employment standards guide at Ontario Employment Standards Act: a guide for small businesses.

Frequently asked questions