Sunday, 27 October 2019

"Failsafe" Language Fails to Save Termination Provision

If a contractual termination clause provides for “the greater of” ESA entitlements and a set amount, will the guarantee of “the greater of” act as a failsafe if the rest of the provision is contrary to the provisions of the ESA?

In Andros v. Colliers Macaulay Nicolls Inc., 2019 ONCA 679 (CanLII) , the Court of Appeal for Ontario said “no.”

Saturday, 20 July 2019

Employee Has Right to Change Mind about Resignation: ONCA

Can an employee change her mind about resignation, if the impetus for such voluntary resignation ceases to be an issue, and the employee has not yet left employment?

In the third in a series of decisions concerning “working resignation”, English v. Manulife Financial Corporation, 2019 ONCA 612 , the Court of Appeal of Ontario said yes.

Thursday, 11 July 2019

Conscionability of Release Not Appropriate for Resolution by Summary Judgment

Is the issue of the “conscionability” of a full and final release, signed as part of a severance negotiation and purporting to release claims to long-term disability benefits, the kind of issue appropriate for resolution by way of summary judgment?

Notwithstanding the agreement of the parties that it was, in Swampillai v. Royal & Sun Alliance Insurance Company of Canada, 2019 ONCA 201, the Court of Appeal for Ontario held that, in the circumstances of this case, the issue of whether the release was unconscionable and therefore unenforceable was a genuine issue requiring a trial.

Wednesday, 3 July 2019

Frustration of Contract Can be Resolved by Summary Judgment - Does Not Require A Trial

Is a stated “desire” to return to work, at some point, and without more information, sufficient to rebut the medical evidence that a contract of employment has become legally frustrated?

In Katz et al. v. Clarke, 2019 ONSC 2188, the Ontario Divisional Court held that was not.

Monday, 1 July 2019

Court of Appeal Confirms it Can be Reasonable to Refuse New Employment if New Position is Not Comparable to Position Lost

Is it reasonable for an employee, slated to lose his or her employment as a result of the sale of part of his or her company, to refuse an offer of new employment with the purchaser of the business?

In Dussault v. Imperial Oil Limited, 2019 ONCA 448, the Court of Appeal for Ontario confirmed that it is reasonable if the new position fails to be comparable in status, hours and remuneration.