The Trumping of Hope. The Court of Appeal for Ontario’s Merciless Approach to Contract Interpretation in Employment Law

On September 16, 2021, I published a post titled “Hope for Ontario's Employer Bar: The ONSC's Decision in Rahman v. Cannon Design Architecture Inc.” The artwork I selected for that post was the iconic “HOPE” poster used in 2008 by the Obama campaign when the then-US Senator was running for President.

“Hope” was an appropriate word to describe the employer bar’s reaction to the Superior Court’s decision in Rahman. In that case, Justice Sean F. Dunphy of the Ontario Superior Court of Justice had held that an employee’s sophistication and the fact that she had retained independent legal advice were factors in the determination of whether a contractual termination provision ought to be enforced as written.

Justice Dunphy further held, following the approach more commonly employed in British Columbia (see my commentary in my post Employment Law Isn't Real) that, “Every contract – including this one – must be interpreted with a view to giving expression to the mutual intention of the parties as expressed in the words used by them.”

The employee in the Rahman case appealed Justice Dunphy’s decision to the Court of Appeal for Ontario.

And, just as “Hope” left Washington on January 20, 2017, hope for the employer’s bar was “trumped” when the Court of Appeal released its decision in Rahman v. Cannon Design Architecture Inc., 2022 ONCA 451 (CanLII).

“Discretionary” Bonuses Contain Implied Term that the Discretion Will be Exercised in a Fair and Reasonable Manner: ONCA

If a company describes an employee’s bonus payment as being “discretionary”, with the allocation of bonuses to employees being “purely subjective” and completely bereft of any calculations, does that mean that the company can do whatever it wants in respect of such bonus?

In Bowen v. JC Clark Ltd., 2022 ONCA 614 (CanLII), the Court of Appeal for Ontario (Feldman, George and Copeland JJ.A.) held that “Where an employment agreement provides for a discretionary bonus, there is an implied term that the discretion will be exercised in a fair and reasonable manner.”

Lawyers Owe No Duty to Complainants When Acting as Workplace Investigator: ONSC

Does a lawyer acting as a workplace investigator owe a duty of care to the complainant in the workplace harassment case?

In Mezikhovych v. Kokosis, 2022 ONSC 6480, Justice Howard Leibovich of the Ontario Superior Court of Justice held, on a motion for summary judgement, that they do not.

“Lowered Expectations” – Catchy Sketch Comedy Jingle, Bad Legal Principal

Those of us of a certain age will remember a sketch comedy television series originally inspired by Mad magazine that aired on Fox from 1995 to 2009 called “MADtv”. Among the recurring sketches on MADtv was a segment called “Lowered Expectations”, which spoofed dating videos.

The title “Lowered Expectations” poses a relevant employment law question: Does a dismissed employee have a legal duty to mitigate her damages by searching for a lesser paying job after a reasonable period of time has passed looking for a more comparable position?

Just as it is true that no one should have to lower their expectations in looking for love, in Lake v. La Presse, 2022 ONCA 742 (CanLII), the Court of Appeal for Ontario (van Rensburg, Pardu and Copeland JJ.A.) held that a motion judge had erred in principle when she accepted that, in mitigation, after a reasonable period of attempting to find similar employment, a dismissed employee must begin searching for a lesser paying job.

Sorry if you now have the theme song stuck in your head.

Court Relies on Wage Surveys to Impute Income

Can the court rely on wage surveys to impute income to someone who has refused to provide evidence of his actual earnings?

In Lewis v. Willis, 2022 ONCJ 421 (CanLII), a family law decision of Justice Stanley B. Sherr of the Ontario Court of Justice held that it could.

The case may have implications in employment law cases, where dismissed employees fail or refuse to provide evidence of their mitigation income.