“‘Then you should say what you mean,’ the March Hare went on. ‘I do,’ Alice hastily replied; ‘at least ‒ at least I mean what I say ‒ that’s the same thing, you know.’ ‘Not the same thing a bit!’ said the Mad Hatter.”
– Lewis Carroll, Alice’s Adventures in Wonderland
There is no “madness” in saying what you mean; in the realm of contracts ‒ especially employment contracts ‒ the madness is in not doing so, especially if not “saying what you mean” leaves contractual intention to implication or “understanding”.
A case in point. Earlier this month, the Ontario Court of Appeal accepted the argument of my colleague Jordan Kirkness, against the contention that terms can be “implied” due ‒ in this instance ‒ to “industry custom”: Hampton Securities Limited v. Tassone, 2017 ONCA 69.Industry custom as an intrusive but unstated premise for creative contractual inclusion is not foreign to the law. A seminal Supreme Court of Canada decision in the fiduciary and confidentiality arenas attests to the fact that if demonstrable, “custom” can be ‘read into’ commercial relationships: LAC Minerals Ltd. v. International Corona Resources Ltd. But says our highest Court, only reluctantly.
As in Tassone, such reluctance is compelling for several reasons, two principally. Firstly, as much as we may pretend otherwise, employment relationships are rarely arms-length and rarely borne of equality of bargaining power. This is why the Courts sponsor one of the few remaining Latin maxims we lawyers leverage, particularly at cocktail parties: contra proferentum; ‘the contract is read against its author’. The interpretation is ‘read against’ the employer, usually informed by fairness.
Secondly ‒ and most compelling in any contractual relationship ‒ the law seeks certainty for the betterment of all parties. General Patton said it plainly: “Say what you mean and mean what you say“. Works in war; works in relationships.
Besides, ‘plain-speaking’ is readily available to employers. It is strongly recommended that employers expressly lay out the agreed terms and conditions of the employment relationship, whether in letter form or in a formal agreement.
This is compelling even where the Court has historically recognized an implied term such as “reasonable notice” when the relationship is otherwise silent. Ironically, that implied term was created in the late 1800s to protect employers against transient labourers. The corollary: it is now the employee’s powerful remedy against not-for-cause cessation of employment. Prudent employers prefer express severance versus nebulous unpredictable “reasonable” notice.
The lesson: think long and well about codifying the express terms and conditions of employment. Tassone and LAC tell us that while the Courts may resist implication, it may only be after the expense, exasperation and uncertainly of hearings, trials, and appeals.
So it’s wise to follow the admonition of the Mad Hatter and the credo of General Patton regarding ‘plain-speak’ in the creation of contractual relations and in avoiding terms by implication. And we should never overlook the inimical words of Dr. Seuss from our childhood; words that ever-resonate for all sorts of reasons, including the law:
“Be who you are and say what you mean. Because those who mind don’t matter and those who matter don’t mind!” Go ask Alice.