Sunday, 9 August 2020

Employment Law Isn't Real

“Employment law isn’t real.”

Mention to my father that to which I have dedicated my intellectual focus and professional pursuits and he will be quick to inform you that employment law is not a real thing. He will ask you, rhetorically, who has ever heard of such a thing.

My father’s perspective on the subject of employment law reminds me of something I remember being told in law school: “There is no point taking environmental law.” Perhaps somewhat unexpectedly, it was my environmental law professor who told me and my classmates such a thing. The reason, my professor teased, that there was no point in taking environmental law was because “environmental law” was not a distinct subject. It was, others would argue, simply applied criminal law, or applied tort law. So long as one had an understanding of criminal law and private rights of remedy, why would one need an entire law course dedicated to the subject of the environment? “Because,” came the obvious answer, “it’s different.”

I did not take employment law in law school. Didn’t take labour either. In fact, the closest I came to learning about the subject in law school was one lunch hour talk about mandatory retirement, which I only attended because a friend had asked me to, and there was pizza.

Had I taken such a course however, and had the professor chosen to introduce the subject in the same provocative way that my environmental law professor had, I suspect that she would have said something similar to what I heard down the hallway in my environmental law class: ‘There is no point in taking employment law.’ Employment law is, by and large, applied contract law, with occasional criminal law and tort law, but mostly applied contract law.

“Employment law” therefore is not real. It is not unique or distinct. If one knows contract law, one can wing it at employment law.

If that thesis is true, then the Court of Appeal’s decision in, Waksdale v. Swegon North America Inc., 2020 ONCA 391 (CanLII) is wrong.

The Issue

I am writing this post on Sunday, August 9, 2020. By now, even the most passive follower of Ontario employment law will be familiar with the Court of Appeal’s decision in Waksdale. For those who are not familiar, however, allow me to set out the issue.

Waksdale came to the Court of Appeal subsequent to the decision of Justice Edward M. Morgan of the Superior Court of Justice, dated October 3, 2019, with reasons reported at 2019 ONSC 5705.

The primary issue on the motion for summary judgment heard and decided by Justice Morgan was the legal effect of the written employment contract between the parties. The appellant employee, Waksdale took the position that the termination clause in his employment contract was void because it was an attempt to contract out of the minimum standards of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”). The respondent employer conceded that the “Termination for Cause” provision in the contract was void because it violated the ESA. However, it argued that the “Termination of Employment with Notice” provision in the agreement was valid and, because it was not alleging cause, it could rely on the latter provision.

The legal issue was whether the two clauses should be considered separately or whether the illegality of the Termination for Cause provision impacted the enforceability of the Termination of Employment with Notice provision. The employer argued that where there are two discrete termination provisions that by their terms apply to different situations, courts should consider whether one provision impacts upon the other and whether the provisions are “entangled” in any way. If they are not, the employer argued, then there should be no reason why the invalidity of one should impact on the enforceability of the other.

On the motion for summary judgment, Justice Morgan dismissed both the motion for summary judgment and Waksdale’s lawsuit. Justice Morgan had concluded that the Termination of Employment with Notice provision was a stand-alone, unambiguous, and enforceable clause to which Waksdale was bound. Waksdale, therefore, lost.

I summarized Justice Morgan’s decision in my earlier post, Keeping Babies in Bathtubs – ONSC Maintains Termination Clause Notwithstanding Contractual Issues.

Justice Brown’s Decision in Khashaba

What I omitted from that post, however, was a summary of Justice Carole J. Brown’s reasons for decision in the case of Khashaba v. Procom Consultants Group Ltd., 2018 ONSC 7617.

Khashaba is a well-reasoned, well-articulated decision, which, like Justice Morgan’s decision in Wakdsale is beneficial to employers. In her reasons for decisions concerning the exact same issue as considered in Wakdsale, Justice Brown wrote:

[56] I find that the “Termination for Cause” provision is void. However, the remainder (the other four clauses) of the “Early Termination” provisions are still valid and enforceable.

[57] Since Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Ontario courts have answered questions about illegal termination provisions in a way that incentivizes employers to draft ESA-compliant termination provisions. Section 5 of the ESA, which states that an employer and employee cannot contract for less than the ESA provides for, has been given a broad and remedial interpretation. Justice Iacobucci at pps. 1003-1005 of Machtinger is frequently cited. In summary, he stated that:

  • The objective of the ESA is to protect the interests of employees by requiring employers to comply with certain minimum standards, including minimum periods of termination.
  • The ESA seeks to protect employees because they are often in an unequal bargaining position in relation to their employers, and may be unaware of their statutory and common law rights.
  • Accordingly, an interpretation of the ESA which encourages employers to comply with the minimum requirements of the ESA, and so extends its protections to as many employees as possible, is to be favoured over one that does not.
  • If the only sanction which employers potentially face for failure to comply with the minimum notice periods prescribed by the ESA is an order that they minimally comply with the ESA, employers will have little incentive to make contracts with their employees that comply with the ESA. Employers can rely on the fact that many employees will not challenge contractual notice provisions which are in fact contrary to employment standards legislation, and they will only have to comply with the ESA for those individual employees who take legal action after they are dismissed.
  • An approach more consistent with the objects of the ESA is that, if an employment contract fails to comply with the minimum statutory notice provisions of the ESA, then the presumption of reasonable notice will not have been rebutted. Employers will be incentivized to comply with the ESA to avoid paying for longer common law reasonable notice periods.
  • This approach does not disproportionately burden employers. An employer can readily make contracts with his or her employees which referentially incorporate the minimum notice periods set out in the ESA or to the employees’ notice entitlement under the ESA.
  • If an employer has attempted, whether deliberately or not, to frustrate the intention of the legislature by violating the ESA, it would indeed be perverse to allow the employer to avail itself of legislative provisions intended to protect employees, so as to deny the employees their common law right to reasonable notice.

[58] The Ontario Court of Appeal also recently confirmed in Wood v. Fred Deeley Imports Ltd., 2017 ONSC 158 (CanLII), 2017 ONCS 158 at para. 28 that “Termination clauses should be interpreted in a way that encourages employers to draft agreements that comply with the ESA.”

[59] These principles of interpretation and approach to termination provisions that fail to comply with the ESA have led to the cases that the applicant relies on, which provide:

  • It does not matter whether the employer actually complied with the ESA, or whether the illegal provision in the agreement actually applied to the employee. If the wording of the employment contract allowed for the employer to potentially violate the ESA then the termination clause is void and the employee is entitled to the common law notice period: Andros v. Colliers Macaulay Nicolls Inc., 2018 ONSC 1256 at paras. 25-26, Covenoho v. Pendylum Ltd., 2017 ONCA 284 at para. 7, Garreton v. Complete Innovations Inc., 2016 ONSC 1178 at para. 27.
  • Termination provisions must be clear that they are specifying a period of notice other than common law reasonable notice: Machtinger at p. 998, Ceccol v. Ontario Gymnastic Federation (2001), 2001 CanLII 8589 (ON CA), 55 O.R. (3d) 614 (C.A.) at para. 45.
  • If a termination provision violates the ESA in one aspect, like not stating that benefits will be paid during the notice period, then the entire termination provision is void for all purposes so that the employee will be entitled to common law reasonable notice: North v. Metaswitch Networks Corporations, 2017 ONCA 790 at para. 24, Miller v. A.B.M. Canada Inc., 2014 ONSC 4062 at paras. 43-44, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 168, at para. 21, Andros v. Colliers Macaulay Nicolls Inc., 2018 ONSC 1256 at para. 34.
  • A violation of the ESA renders a termination clause void, so that a severability clause cannot remove it because there is nothing on which the severability clause can operate: North v. Metaswitch Networks Corporation, 2017 ONCA 790 at paras. 41-45.

[60] Furthermore, the Court of Appeal’s recent decision in Howard v. Benson Group Inc., 2016 ONCA 256 settled that for a fixed term employment contract that does not provide for early termination without cause, an employee is entitled on early termination to the wages the employee would have received to the end of the term: para. 22. The Court of Appeal concluded that the employee has no duty to mitigate: para. 44. See also: Mohamed v. Information Systems Architects Inc., 2018 ONCA 428 at paras. 26-27, and Covenoho v. Pendylum Ltd., 2017 ONCA 284 at para. 9.

[61] The “Early Termination” provision of the fixed term contract is made up of five separate clauses. Clause (b) is “Termination for Cause”, Clause (c) is “Termination without Cause.” The remaining clauses are not about the manner in which the employer can terminate the employee. Clause (a) governs resignation by the employee, Clause (d) provides that “these provisions” shall remain in effect throughout the agreement and any renewal or extension of the agreement, and Clause (e) governs the employee’s responsibility to return the client’s property if the employment terminates for any reason.

[62] The non-compliance with the ESA is within only one of the five clauses: the “Termination for Cause” clause. This distinguishes it from the cases the applicant cites which state that one violation of the ESA renders an entire termination provision void. In North v. Metaswitch Networks Corporations, 2017 ONCA 790, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 168 and Miller v. A.B.M. Canada Inc., 2014 ONSC 4062, relied on by the applicant, all terms of the agreement governing an employee’s termination were contained within one clause. The illegal aspects were sentences or missing words that resulted in an illegal attempt to contract out of an ESA minimum. The courts in those cases held that the entire clause should be void because of the illegality. In Andros v. Colliers Macaulay Nicolls Inc., 2018 ONSC 1256, the termination provision contained two sub-clauses. The trial judge analyzed each separately and found that each were separately illegal and void.

[63] I interpret the references in the case law to a single violation of the ESA rendering an “entire termination clause” void to mean that the entire clause which contains the illegality should be void. No words or sentences in the clause containing the illegality should be valid or enforceable for any purpose. In this context, the entirety of the “Termination for Cause” clause should be void.

[64] The other clauses of the “Early Termination” provision remain valid and enforceable. This result accords with the objectives of the ESA. The “Termination without Cause” provision does not violate the ESA. It also contains explicit language showing the parties’ intent that it should comply with the ESA. The other clauses in the “Early Termination” provision do not relate to the manner in which an employer can terminate an employee’s employment. There is no reason why they should not remain valid and enforceable.

[65] Although I do not rely on this clause, I also note that the agreement contains a severability clause which indicated the parties’ intention that illegal portions of the agreement should be severed.

[66] I am aware of Iacobucci J.’s statement in Machtinger, confirmed by the Ontario Court of Appeal in Wood, that termination clauses should be interpreted in a way that incentivizes employers to draft ESA-compliant termination clauses at the outset. However, in finding only the “Termination for Cause” clause void, I am not interpreting, rewriting or reading down any part of the Employment Agreement to make it comply with the ESA. I am interpreting the illegal clause, the “Termination for Cause” clause as void.

[67] I am not of the view that Machtinger, and the jurisprudence that follows it, require that upon finding a violation of the ESA in a termination clause, a court must ignore ordinary contract principles, the intentions of the parties, and common sense. I agree with the statement of the B.C. Court of Appeal in Miller v. Convergys, 2014 BCCA 311, leave to appeal denied, at paras. 14-15 that “the construction of an employment contract remains an exercise in contractual interpretation, and the intentions of the parties will generally prevail, even if this detracts from employment law goals that are otherwise presumed to apply.” In this case, the contract evinced a clear intention to comply with the ESA, the violation of the ESA was in a separate provision from the rest of the contract, and the contract contained a severability clause.

[70] For all of these reasons, I find that while the “Termination for Cause” provision is void, the other clauses of the “Early Termination” provision remain valid and enforceable.

For those who wish to argue that employment law is not real, not unique, and nothing more than applied contracts, paragraph 67 of Justice Brown’s reasons for decision in Khashaba succinctly articulates the reasoning behind the thesis:

  • The construction of an employment contract remains an exercise in contractual interpretation’ and
  • Machtinger, one of the Supreme Court of Canada’s most important decisions on the subject of the intersection of workers’ rights and contracts, and the jurisprudence that follows it, do not require that, upon finding a violation of the ESA in a termination clause, a court must ignore ordinary contract principles, the intentions of the parties, and common sense.

The BCCA’s Decision in Miller v Convergys

In support of her reasons, and standing is sharp contrast to the recent decision of the Court of Appeal for Ontario in Waksdale is the decision of the Court of Appeal for British Columbia in Miller v. Convergys CMG Canada Limited Partnership, 2014 BCCA 311 (CanLII).

In Miller, British Columbia’s highest court wrote the following in respect of the proper approach to interpretation of employment contracts:

[15] The court should strive to give effect to what the parties reasonably intended to agree to when the contract was made. The starting point is the language of the contract, which should be given its plain and literal meaning, and be interpreted in the context of the entire agreement. Consideration may also be given to the factual matrix surrounding the creation of the contract. If the contractual language reveals two possible interpretations, the court should seek to resolve this ambiguity by searching for an interpretation that reflects the true intent and reasonable expectations of the parties when they entered the contract, and achieves a result consistent with commercial efficacy and good sense. Considerations of reasonableness and fairness inform this exercise. If these principles do not resolve the ambiguity, extrinsic evidence may be admissible to assist in ascertaining the parties’ intent. As a last resort the principle of contra proferentem may be invoked to favour construction of the ambiguity against the party that drew the agreement. This principle may not be used, however, to create or magnify an ambiguity. As to employment contracts in particular, these will be interpreted in a manner that favours employment law principles, specifically the protection of vulnerable employees in their dealings with their employers. Nevertheless, the construction of an employment contract remains an exercise in contractual interpretation, and the intentions of the parties will generally prevail, even if this detracts from employment law goals that are otherwise presumed to apply: Geoff R. Hall, Canadian Contractual Interpretation Law, 2d ed (Markham, Ont.: LexisNexis, 2012) at 9-52, 66-70, 187-88.

Decision of the Court of Appeal for Ontario in Waksdale

In what many would view as a watershed rebuke of that perspective stands the Court of Appeal for Ontario’s decision in Waksdale.

No single judge is credited with authoring the Court of Appeal’s decision in Waksdale. The decision was also heard in writing, presumably because of the limitations imposed by the Covid-19 pandemic. The panel assigned to ‘hear’ the matter was composed of Pepall, Hourigan and Roberts JJ.A.

In its relatively short, given their economic impact, reasons for decision, the Court of Appeal wrote the following:

[7] The law regarding the interpretation of termination clauses in employment contracts was helpfully summarized by Laskin J.A. at para. 28 of Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, 134 O.R. (3d) 481. The following points from that summary are particularly apt for the purposes of this appeal:

  • The ESA is remedial legislation, intended to protect the interests of employees. Courts should thus favour an interpretation of the ESA that “encourages employers to comply with the minimum requirements of the Act” and “extends its protections to as many employees as possible”, over an interpretation that does not do so: Machtinger, p. 1003.
  • Termination clauses should be interpreted in a way that encourages employers to draft agreements that comply with the ESA. If the only consequence employers suffer for drafting a termination clause that fails to comply with the ESA is an order that they comply, then they will have little or no incentive to draft a lawful termination clause at the beginning of the employment relationship: Machtinger, p. 1004.

[8] Laskin J.A. went on to observe that the enforceability of a termination provision in an employment contract must be determined as at the time the agreement was executed. The wording of the contract alone should be considered in deciding whether it contravenes the ESA, not what the employer might have done on termination: Wood, at paras, 43-44. Thus, even if an employer’s actions comply with its ESA obligations on termination, that compliance does not have the effect of saving a termination provision that violates the ESA.

[9] In the present case, there is no question that the respondent would not be permitted to rely on the Termination for Cause provision. The issue is whether the two clauses should be considered separately or whether the illegality of the Termination for Cause provision impacts the enforceability of the Termination of Employment with Notice provision. The respondent submits that where there are two discrete termination provisions that by their terms apply to different situations, courts should consider whether one provision impacts upon the other and whether the provisions are “entangled” in any way. If they are not, the respondent argues, then there is no reason why the invalidity of one should impact on the enforceability of the other.

[10] We do not give effect to that submission. An employment agreement must be interpreted as a whole and not on a piecemeal basis. The correct analytical approach is to determine whether the termination provisions in an employment agreement read as a whole violate the ESA. Recognizing the power imbalance between employees and employers, as well as the remedial protections offered by the ESA, courts should focus on whether the employer has, in restricting an employee’s common law rights on termination, violated the employee’s ESA rights. While courts will permit an employer to enforce a rights-restricting contract, they will not enforce termination provisions that are in whole or in part illegal. In conducting this analysis, it is irrelevant whether the termination provisions are found in one place in the agreement or separated, or whether the provisions are by their terms otherwise linked. Here the motion judge erred because he failed to read the termination provisions as a whole and instead applied a piecemeal approach without regard to their combined effect.

[12] The mischief associated with an illegal provision is readily identified. Where an employer does not rely on an illegal termination clause, it may nonetheless gain the benefit of the illegal clause. For example, an employee who is not familiar with their rights under the ESA, and who signs a contract that includes unenforceable termination for cause provisions, may incorrectly believe they must behave in accordance with these unenforceable provisions in order to avoid termination for cause. If an employee strives to comply with these overreaching provisions, then his or her employer may benefit from these illegal provisions even if the employee is eventually terminated without cause on terms otherwise compliant with the ESA.

[13] In the alternative, the respondent relies on a severability clause in the employment contract which reads as follows:

You agree that if any covenant, term, condition or provision of this letter outlining the offer of employment with the Company is found to be invalid, illegal or incapable of being enforced by a rule of law or public policy, all remaining covenants, terms, conditions and provisions shall be considered severable and shall remain in full force and effect.

[14] We decline to apply this clause to termination provisions that purport to contract out of the provisions of the ESA. A severability clause cannot have any effect on clauses of a contract that have been made void by statute: North v. Metaswitch Networks Corporation, 2017 ONCA 790, 417 D.L.R. (4th) 429, at para. 44. Having concluded that the Termination for Cause provision and the Termination of Employment with Notice provision are to be understood together, the severability clause cannot apply to sever the offending portion of the termination provisions.

Commentary

Waksdale is a case about severability. While not calling out the BC Court of Appeal’s decision by name, a review of that court’s decision on the issue of severability makes the point obvious. In Miller, the BCCA wrote the following on the subject of whether an ‘illegal’ termination provision could be severed from the remainder of the contract, such that the applicable provision could stand:

[36] The trial judge found that even if the probation clause was intended to apply to Mr. Miller, it was severable under the severability clause. The balance of the Agreement, in particular the termination clause, remained intact to govern his notice entitlement.

[37] Mr. Miller [the appellant] asserts that the trial judge reached that conclusion without referring to the legal principles that govern severance. He refers to the test for severability set out in G.H.L.Fridman, The Laws of Contract in Canada, 4th ed. (Carswell, 1999) at 443, and relied on in … The most recent edition of G.H.L.Fridman, The Laws of Contract in Canada, 6th ed. (Toronto: Carswell, 2011) reframes the test slightly at 412-413:

… The issue is whether the parties have by their language identified separate promises. The promise must appear severable. In other words, if a blue pencil could be put through the allegedly invalid promise without disturbing the rest of the contract, it looks prima facie as if the cancelled words, that is, the promise being struck out, constituted a separate promise. This is the so-called “blue pencil” rule, which is a rule of thumb only.

That test is insufficient by itself… The true test for determining whether severance is possible is whether the subtraction of the void part of a contract affects the meaning of the remainder, or merely the extent. It is not permitted to change radically the purport and substance of the original contract with the result that the deletion of the invalid obligation “alters the scope the intention of the agreement”, so that what is left is no longer “a reasonable arrangement between the parties” or an “intelligible economic transaction”. In restraint of trade cases there can be no “notional severance”, that is, reading the restraint provision in such a way as to make it legal and enforceable when, on its true sense, it is not. However, “notional” severance is permitted in cases involving a statutory illegality, such as the contravention of the provisions regarding interest. [Footnotes omitted]

[38] Mr. Miller maintains that the trial judge erred by failing to recognize that the probation clause and termination clause deal with the same subject matter: his severance entitlement on dismissal. They are inextricably intertwined and, if one is illegal by operation of the Act, both must be severed. He says that, contrary to the authorities, the trial judge, by permitting severance, effectively corrected an illegal contract to bring it in accordance with the Act, thereby giving the employer an unfair advantage. Mr. Miller asserts that to uphold this approach would permit employers to prepare contracts in violation of the Act and avoid any negative repercussions by including a severance clause. Employees subject to such contracts are forced to bear the burden of challenging the validity of the employment contract through expensive litigation as he has done and, if successful, will achieve only minimal success if the employer is entitled to fall back on a severance clause to remove only the offensive provision and retain the minimal notice mandated by the Act. Mr. Miller contends this is unjust and incompatible with the policies espoused in Machtinger at 1004:

If the only sanction which employers potentially face for failure to comply with the minimum notice periods prescribed by the Act is an order that they minimally comply with the Act, employers will have little incentive to make contracts with their employees that comply with the Act. As Swinton and Etherington suggest, most individual employees are unaware of their legal rights, or unwilling or unable to go to the trouble and expense of having them vindicated. Employers can rely on the fact that many employees will not challenge contractual notice provisions which are in fact contrary to employment standards legislation. Employers such as the present respondent can contract with their employees for notice periods below the statutory minimum, knowing that only those individual employees who take legal action after they are dismissed will in fact receive the protection of the minimum statutory notice provisions.

In my view, an approach more consistent with the objects of the Act is that, if an employment contract fails to comply with the minimum statutory notice provisions of the Act, then the presumption of reasonable notice will not have been rebutted. Employers will have an incentive to comply with the Act to avoid the potentially longer notice periods required by the common law, and in consequence more employees are likely to receive the benefit of the minimum notice requirements. Such an approach is also more consistent with the legislative intention expressed by s. 6 of the Act, which expressly preserves the civil remedies otherwise available to an employee against his or her employer.

[39] In addition to relying on Machtinger, Shore, and Waddell, Mr. Miller also points to several English decisions that address severability, primarily in the context of restraint of trade: …

[40] I find these decisions of limited assistance. The question of severance did not arise in Machtinger, Shore, and Waddell. In each of these cases there was no severability clause and the employment contract had a single provision addressing termination that did not comply with employment standards legislation. Once these provisions were found to be unenforceable, nothing of practical use dealing with notice on dismissal remained in the contracts to attract consideration of severability.

[42] Where the parties anticipated the possibility of severance and chose contractual language to govern this eventuality, severability is not just a remedial question. Before turning to remedy, the starting point must be to give effect to what the parties reasonably intended if a provision of the contract is found unenforceable by reason of illegality.

[43] The severability clause in the Agreement is unambiguous. It stipulates that the units of the Agreement are paragraphs, and each paragraph is a separate and distinct covenant severable from the others. In the event a paragraph is invalid, it provides that the offending provision should be read down to the extent of the invalidity and that all other provisions will remain in full force and effect. The clear intent is that if one clause becomes invalid, the balance of the contract should remain enforceable to the extent possible.

[44] The plain meaning of the severability clause should therefore be given effect if possible, and should inform the test set out by Fridman. The question becomes whether the removal of the probation clause affects the substance of the remainder of the Agreement. The answer does not depend on the similarity of subject matter between the probation clause and the termination clause as Mr. Miller contends, but on the impact of severance on the scope and intention of the Agreement.

[45] I am satisfied the trial judge made no error in concluding the probation clause could be severed from the Agreement. Its removal has no impact on the termination clause, the balance of the contract, or the employment relationship. By stipulating notice in accordance with the Act, the termination clause retains a virtually identical term regarding absence of notice for the first three months of employment. Thereafter, the requirement for notice in accordance with the Act is clear, and unaffected by the severance of the probation clause. Nor does the removal of that provision have any impact on the other terms of the Agreement.

[46] Further, I am not persuaded the presence of a broadly-worded severance clause in an employment contract is necessarily unfair to employees. In this case, the severability clause is not directed solely to the termination provisions, but is applicable to the Agreement in its entirety. It is not reasonable to interpret it as providing a “fallback provision” designed by Convergys in the hope of avoiding notice under the Act. The termination clause is clear that the parties intended the Act would govern severance entitlement. Mr. Miller received notice in compliance with that term.

Reviewing Miller in this way, we see the fundamental difference between contract law and employment law. An example laid bare by the Court of Appeal for Ontario, first in North v. Metaswitch Networks Corporation, 2017 ONCA 790 and now more recently in Waksdale.

Whereas, for contract law, the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction with the overriding concern to determine “the intent of the parties and the scope of their understanding” (Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 SCR 633), for employment law, if it is unique, the interpretation of contracts is about finding interpretations that “encourages employers to comply with the minimum requirements of the Employment Standards Act” and “extends its protections to as many employees as possible”, regardless of what the parties may have actually intended or agreed to.

If the same is, in fact, what Canadian jurisprudence wishes to say about employment law, i.e. that it is unique and separate from general principles of contract law, then the Supreme Court of Canada needs to grant leave to appeal in Waksdale, address the BCCA’s conflicting decision in Miller head-on, and say so.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

The foregoing opinions reflect those of the author alone and are unlikely to be shared by all clients to whom he provides professional legal services.

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