tag:blogger.com,1999:blog-7916767120530431852.post7819712017637473491..comments2024-03-23T13:03:48.917-04:00Comments on Labour Pains: The ONCA’s Decision in Oudin v. CFT Leaves One 'Wundering' – Is Wunderman Dead?Sean Bawdenhttp://www.blogger.com/profile/12478582658843470140noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-7916767120530431852.post-65094744954238893002017-02-02T10:52:37.492-05:002017-02-02T10:52:37.492-05:00Hopefully Wood v Fred Deeley Imports Ltd. will dea...Hopefully Wood v Fred Deeley Imports Ltd. will deal with it. Facta and my summary here: http://bit.ly/2cQKRQ1Sean Bawdenhttps://www.blogger.com/profile/12478582658843470140noreply@blogger.comtag:blogger.com,1999:blog-7916767120530431852.post-28086570824873772332017-02-02T10:51:08.489-05:002017-02-02T10:51:08.489-05:00...and the Supreme Court has the last word. Leave......and the Supreme Court has the last word. Leave to appeal Oudin has been denied. <br /><br />I guess we all get to wait for some further clarification from the bench, although I suspect that the answer will end up being some version of "silence as to the 'other' ESA entitlements is fine, express denial of them is not." Melissa Sealhttp://www.tmlegal.ca/profile/melissa-seal/noreply@blogger.comtag:blogger.com,1999:blog-7916767120530431852.post-22346019879192636352016-09-17T13:02:25.473-04:002016-09-17T13:02:25.473-04:00Such was the approach in Roden v The Toronto Human...Such was the approach in Roden v The Toronto Humane Society (2005 ONCA)Sean Bawdenhttps://www.blogger.com/profile/12478582658843470140noreply@blogger.comtag:blogger.com,1999:blog-7916767120530431852.post-51520204066940533972016-06-29T15:23:10.627-04:002016-06-29T15:23:10.627-04:00Sean and Dennis:
Great to hear the thoughts of tw...Sean and Dennis:<br /><br />Great to hear the thoughts of two of my favourite contemporaries. Hope you both are well.<br /><br />I have always been troubled by the seeming expansion of Stevens. My initial reading of that case made some sense to me- the problem was not that the employer left out a reference to benefits. The problem was that the employer placed a limit on entitlements and then said, effectively, "and that's it- you get NOTHING else." [my paraphrase, my emphasis]<br /><br />Such a limitation is clearly contrary to the ESA on its face.<br /><br />I have been troubled to see the courts wade in and knock out contracts that have notice limits and simply don't MENTION other things like benefits, severance, or accrued vacation/wages. This always seemed to me like it was going one step beyond what the courts are supposed to be doing: interpreting contracts in accordance with the parties' intentions. <br /><br />Frankly, now that we are in the age where the courts must assume a duty of good faith in bargaining, I would think that this strengthens the notion that any ambiguity should be resolved in favour of an interpretation that is in accordance with the law (i.e., in good faith), rather than one that is contrary to it. <br /><br />Where one party has drafted a contract- the terms of which are in clear breach of a statute- by all means, the court should drive a truck through the offending provision. Where, however, there is a contract which is silent on a particular point, and the interpretation of that point can either mean that the contract complies with the law or not, I think it is going too far for the courts to say that it should be struck out as void- at least not without some parol evidence that the parties actually intended the illegal interpretation. <br /><br />Silence should not be a shortcut to conclusion of illegality without something more.<br /><br />My own two cents, and worth both (now extinct) pennies.Melissa Sealhttp://www.tmlegal.ca/profile/melissa-seal/noreply@blogger.comtag:blogger.com,1999:blog-7916767120530431852.post-36323969324171002482016-06-29T12:13:11.169-04:002016-06-29T12:13:11.169-04:00The omission of severance may be less troubling. ...The omission of severance may be less troubling. On the framing of the language - creating an entitlement to terminate on x notice - it appears to me to be silent as to severance entitlements. And in the absence of additional limiting language, I don't see any reason to think that the contract is trying to displace the severance provisions of the Act - I've effectively terminated the contract by providing you with x notice, and now I also have to pay you severance. (Not sure that's how the motions judge actually *read* the provision, but I'm pretty sure I've seen cases taking that approach to such language before. I'd have to check my case law indices for citations, though.)Dennis Buchananhttps://www.blogger.com/profile/02338198640943823828noreply@blogger.comtag:blogger.com,1999:blog-7916767120530431852.post-12837845449688893862016-06-29T11:40:50.688-04:002016-06-29T11:40:50.688-04:00I'm not so sure. The Court didn't rule on...I'm not so sure. The Court didn't rule on the issue one way or another, but just said that the trial judge's decision was entitled to deference. I think this decision has little value as precedent because it is so specific to the trial judge's findings.Anonymoushttps://www.blogger.com/profile/13077751094451186305noreply@blogger.comtag:blogger.com,1999:blog-7916767120530431852.post-17232415338425197922016-06-29T08:19:18.630-04:002016-06-29T08:19:18.630-04:00Dennis:
I always appreciate your comments.
Have ...Dennis:<br /><br />I always appreciate your comments.<br /><br />Have a look at the motion decision. Moreover, consider what the ONCA said about the provision itself, it expressly omitted the payment of severance and demonstrably did not say "benefits."<br /><br />The motions judge appears to turn his mind to the arguments advanced in Stevens and Wunderman, and implicitly rejects them.<br /><br />Wunderman et al, are simply outcroppings of Machtinger (if a contract does not comply with the ESA, then it's void ab initio), so I am somewhat surprised that the ONCA would allow the ruling to stand without at least commenting on the benefits issue - or at the very least the severance issue as they mention the word.Sean Bawdenhttps://www.blogger.com/profile/12478582658843470140noreply@blogger.comtag:blogger.com,1999:blog-7916767120530431852.post-53072269038476662872016-06-28T23:56:36.620-04:002016-06-28T23:56:36.620-04:00I'm not sure I take these decisions as conflic...I'm not sure I take these decisions as conflicting with Wunderman: It appears to me from Justice Dunphy's reasons that the ESA arguments put to him were along the lines that the 'just cause' style language was overbroad and non-ESA compliant, which taints the rest of the termination language. This is an argument I've heard discussed theoretically before (I think Kumail Karimjee gave a presentation about it at some point), but the question of 'severability' is one that would certainly depend on the construction of the contract. Also, plaintiff's counsel argued on the basis of the ambiguity of '15 days or the ESA minimums'.<br /><br />Either one of those seems like a passable argument, but not nearly as strong as what you've pointed out, that it appears to limit entitlements to pay in lieu of statutory notice to 'salary', which appears to me to exclude benefits - not to mention other elements of the remuneration package, such as commissions. I wouldn't even look at it as a Wunderman question. It's a good old-fashioned Machtinger issue.<br /><br />So I agree with you about the problems in the language, but, unless I'm missing something (which is possible; I haven't read these decisions all that closely yet), it just doesn't look to me like either court addressed this particular question at all.Dennis Buchananhttps://www.blogger.com/profile/02338198640943823828noreply@blogger.com