Silence as acceptance when company sold

August 11, 2013 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…

When do employees have a duty to mitigate termination claim?

August 26, 2012 0 COMMENTS

by Keri Bennett

It has been a fundamental principle of employment law that terminated employees generally have an obligation to seek alternate employment to minimize or mitigate their resulting losses. Their right to get from the terminating employer the pay they would have received during a period of reasonable notice is usually net of any other earnings during that period. But does this same rule apply where a contract specifies the employee’s severance entitlement?

In an important recent decision, Bowes v. Goss Power Products Ltd., the Ontario Court of Appeal concluded that the duty to mitigate does not, in fact, apply where employment contracts contain specific termination payments and the employment relationship is terminated without cause. This is important because Canadian law on this point has been mixed. read more…

Canadian Courts Split on Post-Employment Restrictions

October 09, 2011 0 COMMENTS

by Thora A.Sigurdson

Canadian courts continue to struggle with clauses in employment contracts that contain post-employment noncompetition and nonsolicitation clauses, known as “restrictive covenants.” This is an important issue in Canada, where there is no concept of “at will” employment, and all employees are deemed to have some form of employment contact. But not all terms are equally enforceable.

The recent split decision of the Alberta Court of Appeal in Globex Foreign Exchange Corporation v. Kelcher, 2011 ABCA 240, provides an interesting reminder of the uncertainty in the law in this area. It also provides good lessons to those who want employees to agree to such restrictions.

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Canadian Employers Need to be Careful with Nonsolicitation Clauses

February 07, 2011 0 COMMENTS

By Clayton Jones and Derek Knoechel

The common wisdom is that Canadian courts are much more willing to enforce nonsolicitation clauses in employment contracts than noncompetition clauses. While this may often be the case, nonsolicitation clauses will still be closely scrutinized by the courts.

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Competing for Talent with Your Own Clients

December 06, 2010 0 COMMENTS

By Joel Henderson and Stephen Acker

Julie is an IT consultant working for NoProblemo! Tech Solutions (NP), a technology consultancy. Julie has worked at NP for six years, is well-educated, and has important certifications and transportable skills. What can NP do to reduce the risk of her being hired away by a client?

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Termination Clauses in Canadian Employment Contracts

June 09, 2009 0 COMMENTS

By Katie Clayton and Farrah Sunderani

If you include a termination benefit in a Canadian employment agreement, it is important to be precise. As discussed in previous Northern Exposure entries, employers in Canada must provide notice or pay in lieu of notice when terminating an employee without cause. This minimum requirement is legislated in employment laws across the country. But Canadian courts often award higher amounts, as a result of more generous judicial precedents.

Canadian courts have frequently visited the topic of an employer’s ability to limit the amount of notice they must provide to that required by statute. Can you prevent a court from awarding more? You can’t pay less than the statutory amount. The Supreme Court of Canada has ruled that any contract clause that purports to provide less is void and unenforceable. It is, however, possible to limit the notice of termination to the statutory minimum.

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