Keeping Babies in Bathtubs – ONSC Maintains Termination Clause Notwithstanding Contractual Issues

If an employment agreement contains one provision concerning the way by which one’s employer could terminate the agreement/employment with cause and a separate provision addressing the way by which the employer could terminate without cause, and the “for cause” provision is deemed to be illegal, then does that mean that the provision concerning “without cause” terminations is also illegal? Put another way, if the bathwater is polluted should we jettison the baby sitting in it? In Waksdale v. Swegon North America Inc., 2019 ONSC 5705, Justice Edward M. Morgan of the Ontario Superior Court of Justice (Toronto Region) held that just because one contractual provision is bad, doesn’t mean that one must overlook those provisions that are good.

Commentary

This case is helpful to employers, especially where certain, irrelevant aspects of their employment agreements are susceptible to attack. There has been a campaign, as of late, by plaintiff’s counsel to seek to find any technical non-compliance with the ESA and then argue that such non-compliance should void the entire employment agreement, even if other, relevant aspects of the contract are perfectly legal. The Waksdale case affirms the common sense principle that simply because one can find fault with one aspect of an agreement does not mean that an employee will necessarily be able to void the entire contract. Or, to go back to what I said before – just because the bathwater is dirty doesn’t mean we should lose the baby.

Thank You!

Thank you!

On December 31, 2019, this blog was inducted into the Canadian Law Blog Awards Hall of Fame. As noted by the organizers of the “Clawbies”:

Every year, we add several names to the Clawbies Hall of Fame. Publications must have at least three prior Clawbie awards for consideration. Once they have joined the Hall of Fame ranks, they are no longer eligible for future Clawbies, but can show off their achievement with the official Clawbies Hall of Fame badge.

Four-time Clawbies winner Sean Bawden’s job title has changed, but the quality of his blogging hasn’t. Sean won a “best new blog” Clawbie in 2012, and seven years later he’s in the Hall of Fame. Congratulations on your formidable track record, Sean!

When I started blogging in 2012, when I was then an associate at what was then known as Beament Green, now Beament Hebert Nicholson LLP, I had no real sense of where this blog, nor I, would go. Seven years later it is a bit of an understatement to say that my “job title” has changed. And to note where I am now would also be to overlook the six and one-half years that I spent at Kelly Santini LLP.

I have written self indulgent reflective pieces before, so I won’t add to that now.

Once again, thank you for reading.

Sean

Top Five Cases of Importance to Ontario Employment Law - 2019 Edition

2019. What a year. In thinking about this post, I was hopeful that the title of this annual post was Top Five Decisions of Importance to Ontario Employment Law. Had the word been “decisions” and not “cases”, I might have mused about the various decisions some of us have made over the past year and how those decisions have impacted the Ontario employment law landscape. Oh well.

The point of this blog post, however, is to consider what I consider to be the “Top Five Cases of Importance to Ontario Employment Law”. I have produced such a list since 2012:

• 2012
• 2013
• 2014
• 2015
• 2016
• 2017
• 2018

As it is clearly evident that no one is getting any younger, here is this year’s list.

Time Spent as Independent Contractor Relevant Factor in Calculating Reasonable Notice

Is the amount of time spent as an “independent contractor” an appropriate fact for the court to consider when calculating the reasonable notice period if the worker later becomes either a true employee or dependant contractor?

In Cormier v. 1772887 Ontario Limited c.o.b. as St. Joseph Communications, 2019 ONSC 587 (CanLII), affirmed by the Court of Appeal for Ontario in Cormier v. 1772887 Ontario Limited (St. Joseph Communications), 2019 ONCA 965 (CanLII), Justice Paul Perell held that, it would be wrong in principle to ignore those years of the relationship in determining the reasonable notice period.

The case is an important read for those who may elect to start their relationship one way, but then change it over time.

Employees Cannot Sue for Constructive Dismissal Caused by Chronic Mental Stress: WSIAT

Can an employee in Ontario sue for constructive dismissal, if the reason the employee was forced to leave employment was because of chronic mental stress, caused by workplace bullying or harassment?

According to a 2019 “right to sue” decision from the Ontario Workplace Safety And Insurance Appeals Tribunal, Morningstar v. Hospitality Fallsview Holdings Inc. (Decision No. 1227/19), 2019 ONWSIAT 2324 (CanLII), the answer is “no.”