Probationary clauses: Devil is in the details

May 01, 2017 0 COMMENTS

by J. Alexandra MacCarthy

In Canada, the legal effect of a probationary clause in an employment contract can be unclear depending upon the facts of the particular case. The Supreme Court of British Columbia recently addressed probationary clauses in employment contracts in Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42.

The plaintiff (PY) was hired by the Interior Health Authority (IHA) as the manager of quality and patient safety and client experience and moved from Vancouver to Kamloops for the position. The offer of employment contained the following clause: read more…

Discharged employees must prove lack of comparable jobs

November 13, 2016 0 COMMENTS

by Keri Bennett

Where an employee has been dismissed from a job without sufficient notice, he or she may look to his or her former employer for compensation for any losses suffered. However, the employee has a corresponding duty to try to limit any such losses by looking for comparable employment. A failure to act reasonably in this regard could have a significant impact on any claim the employee might have against the employer.

Not surprisingly given the state of the economy and the unemployment rate, dismissed employees often claim that there are no comparable jobs available and hence the reason they have not managed to secure other employment within the notice period. In Munoz v. Sierra Systems Group Inc., 2016 BCCA 140, the Court of Appeal for British Columbia ruled that where this argument is advanced, it is up to the employee to prove it.

read more…

Court rules employees have obligation to give notice of resignation

February 28, 2016 0 COMMENTS

by Stefan Kimpton

Most Canadian employers know about their obligations to provide notice or payment instead of notice to employees when terminating their employment without cause. But what about employees? Do they also have to provide their employers with reasonable notice of their intention to quit their job? What happens if a key employee leaves suddenly without providing notice? Those issues were explored in the recent decision of Gagnon & Associates Inc. et al. v. Jesso et al., 2016 ONSC 209. read more…

‘Poor’ employer’s termination obligation not reduced

February 07, 2016 0 COMMENTS

by Hannah Roskey

There has been some controversy in Canadian law on the issue of whether the financial circumstances of the employer should play a role in deciding what constitutes reasonable notice of termination or pay in lieu of notice. Since multiple factors go into deciding what’s reasonable in many circumstances, why not this one?

This controversy was recently resolved by the Ontario Court of Appeal in Michela v. St. Thomas of Villanova Catholic School. The court overturned a lower court ruling that had reduced the normal, reasonable notice period because of the poor financial position of the employer that had to terminate the employees. The appeal court found that this was not a relevant factor.

read more…

Sharing the pain: Do economic conditions count?

September 20, 2015 0 COMMENTS

by Clayton Jones

Does a poor economy mean a shorter reasonable notice period? Canadian employers often ask this question—particularly in cyclical industries.

When assessing reasonable notice, courts will consider the employee’s position and responsibilities, length of service, age, and the availability of similar employment. Not only has it been unusual for courts to consider negative economic conditions as a factor justifying a reduced notice period, this has typically been used to lengthen the notice period in favor of the employee.

However, there are two cases from the past year—one from Ontario and one from Alberta—where the court was prepared to give the employer some credit for the economic situation it found itself in. read more…

Employment contracts, termination clauses, and itchy trigger fingers

June 28, 2015 0 COMMENTS

by Bruce R. Grist

As there is no employment at will in Canada, most employment lawyers in Canada who act for employers recommend that employers use employment contracts to govern the employee’s relationship with the employer. If there is an employment contract and the employer wishes to terminate the employee’s employment or the employee wishes to resign, the parties’ obligations are clearly set out in the contract.

Properly drafted employment contracts prevent the uncertainty that arises with respect to termination of employment and “reasonable notice.” read more…

Commissions during the notice period: contractual language rules

January 04, 2015 0 COMMENTS

By Thora A. Sigurdson

In Sciancamerli v. Comtech (Communication Technologies) Ltd., 2014 BCSC 2140, a specialized salesperson was terminated without cause after 10 months’ service. He sued for wrongful dismissal. At trial, the main issues were the length of notice for a short-term salesperson and his entitlement, if any, to commission payments during the notice period. This case is a reminder to Canadian employers of the importance of carefully drafted language in employment contracts. read more…

Termination clause as a ticking time bomb: Are courts in Ontario changing approach?

November 16, 2014 0 COMMENTS

by Marc Rodrigue

To the chagrin of many employers in Canada, the courts have made the drafting and enforcement of termination provisions in an employment contract challenging. In recent years, case law in Ontario has been particularly harsh in striking down termination provisions that may be contrary to the statutory provisions of the Ontario Employment Standards Act, 2000 (ESA) in some circumstances but not others (e.g., entitlements meet the requirements for the first five years of employment but not thereafter).

A recent case in the Ontario Superior Court of Justice, Ford v. Keegan, 2014 ONSC 4989, provides some indication that the court in Ontario has not fully settled on when striking a termination clause is appropriate. As opposed to the treatment of termination clauses in other cases, the court in this case indicated that a termination clause, so long as it meets the ESA minimums at the time an employee is dismissed, should be enforced. read more…

Notice Periods for Older Employees – 69-Year-Old Gets 24 Months

March 08, 2010 2 COMMENTS

By Dominique Launay

In Quebec, an employer may fire an employee with “reasonable notice” of termination or pay in lieu of notice unless there’s a contract dealing with termination or there’s “just cause” for dismissal (and save for specific statutory regimes). Like the rest of Canada, reasonable notice is determined on a case-by-case basis taking into account factors such as the position, age, and length of service of the employee.

The purpose of a notice period is to compensate an employee while looking for comparable employment. With mandatory retirement not allowed in many provinces, courts are being asked to determine the reasonable notice period for older employees more often. The Superior Court of Quebec recently dealt with this issue in McBrearty v. Cerescorp Company, 2009 QCCS 3134 (CanLII), where a 69-year-old employee was fired after 39 years of service.

read more…

When Must Individual Contractors Receive Reasonable Notice?

January 25, 2010 0 COMMENTS

By Donna Gallant

A recent appeal court decision demonstrates once again that defining work relationships is far from an exact science. Somewhere on the spectrum between employees and independent contractors, we have seen the emergence of “dependent contractors.” What hasn’t been entirely clear is how one determines “dependent contractor” status.  Nor what that status means in terms of the worker’s entitlements on termination.

The Ontario Court of Appeal in McKee v. Reid’s Heritage Homes Ltd. attempts to shed some light on these issues. The decision may have broad ramifications across Canada.

read more…