Employee solicitation: Do you have any recourse?

March 16, 2014 - by: Sebastien Gobeil 0 COMMENTS

By Sébastien Gobeil

We have often reported on how Canadian courts enforce, or do not enforce, noncompete and nonsolicitation clauses. But those cases have focused on the solicitation of the former employer’s customers or clients. What happens when a former employee solicits your employees to leave, leading to a series of resignations? Do you have any recourse? read more…

When can Canadian employment contracts be terminated for ‘frustration’?

March 09, 2014 - by: Marc Rodrigue 0 COMMENTS

By Marc Rodrigue

Like any contract, an employment contract can be legally “frustrated” and come to an end. Basically, this may happen when it becomes impossible for one of the parties to perform his or her end of the bargain. For example an employment contract can be frustrated when, because of an illness or injury, it becomes clear that an employee is no longer able to work. But it is not easy to define when that will become clear. read more…

B.C. court decision offers lessons to employers about employment contracts

December 15, 2013 - by: Kevin O'Neill 0 COMMENTS

By Kevin O’Neill

In a recent British Columbia Supreme Court decision, Gerry Miller v. Convergys CMG Canada Limited Partnership, the court confirms a number of useful principles for employers who use an employment agreement containing minimum severance provisions. read more…

High court rules on noncompete, nonsolicitation clauses in business sale

November 03, 2013 - by: Isabelle East-Richard 0 COMMENTS

By Isabelle East-Richard

A recent Supreme Court of Canada decision arising out of Québec will have broad ramifications across Canada.

In Payette v. Guay Inc. (2013 SCC 45 (September 12, 2013)), the Supreme Court of Canada settled the debate over whether the employment contract provisions of the Civil Code of Québec also apply to noncompete and nonsolicitation clauses set forth in business sale agreements. In so doing, it addressed the distinction between the rules that apply to restrictive covenants found in an employment contract and those found in a contract for the sale of a business. read more…

Silence as acceptance when company sold

August 11, 2013 - by: Keri Bennett 0 COMMENTS

By Keri Bennett

Canadian employees may believe that a change in ownership of a company results in a change in the terms of employment and requirement for a new employment contract. Not so. In Whittemore v. Open Text Corporation, the Ontario Superior Court made it clear that the original terms of employment remained valid after a share purchase. The court also made it clear that employees are required to advise their employer if they do not accept a change to their terms of employment. read more…

U.S. employment agreement ruled inapplicable after transfer to British Columbia

May 26, 2013 - by: Katherine Pollock 0 COMMENTS

By Katherine Pollock

A recent decision of the British Columbia Court of Appeal, Stanley v. Advertising Directory Solutions, considered the rights of an employee of a U.S. company who was working for a Canadian subsidiary when terminated. The court found she was entitled to notice or pay in lieu of notice upon termination according to Canadian law. This despite a written agreement with the U.S. parent that said she was employed at will.

The court ruled that an agreement with a U.S. parent company won’t permit a Canadian company, which is also the person’s employer, to avoid its obligation to provide reasonable notice or pay in lieu of notice of termination. read more…

The irony of irreparable harm

February 10, 2013 - by: Bruce Grist 0 COMMENTS

By Bruce Grist

Conventional wisdom suggests that because a nonsolicitation clause is more likely than a noncompete clause to be enforced by a Canadian court, why bother including a noncompete clause in an employment agreement? The British Columbia Court of Appeal’s decision in Edward Jones v. Voldeng suggests that there is still value in including a noncompete clause. Why? It may be easier to demonstrate irreparable harm, one of the requirements to obtain an injunction, when a former employee has breached a noncompete clause. read more…

Layoff as constructive dismissal: a cautionary tale for employers

December 09, 2012 - by: Northern Exposure 0 COMMENTS

By Ralph N. Nero and Keri L. Bennett

When is a layoff not a layoff? When it is a constructive dismissal, according to an Ontario judge. McLean v. The Rawyal Limited Partnership reaffirms the principle that unless incorporated as an express or implied term of the employment contract, a layoff may be treated as constructive dismissal–meaning the employee can sue for pay in lieu of reasonable notice.

read more…

Managing the end to mandatory retirement

October 28, 2012 - by: Keri Bennett 0 COMMENTS

by Keri Bennett

As we reported previously, the Canadian federal government is about to join most of the provinces in making mandatory retirement, for the most part, unlawful. That deadline is fast approaching – December 15, 2012. What can employers do until then? According to the Canadian Human Rights Commission, very little.

Human Rights Commission news release

Earlier this year, the Canadian Human Rights Commission issued a news release cautioning employers against using the time leading up to December 15 to force employees to retire before they are ready to. In the release, Acting Chief Commissioner David Langtry said that “[t]he transition period should not be viewed as a license to force aging workers out the door. Forcing someone to retire because of their age clearly contradicts Parliament’s intent, even if a defence in the law still appears to be available.” read more…

Did he quit, or was he fired?

September 09, 2012 - by: Emilie Paquin-Holmested 0 COMMENTS

by Emilie Paquin-Holmested

Generally when employees decide to leave their jobs, they are considered to have quit. But in Canada, if they leave their jobs because the employer substantially changed essential terms of their employment, they are considered to have been constructively dismissed.

The line separating these two notions is often unclear. It’s especially so when terms of employment are changed after a corporate merger or integration. In a recent decision (St-Hilaire c. Nexxlink inc.), the Court of Appeal of Quebec reviewed the principles of constructive dismissal in this very context. read more…

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