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Mark Ellis

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Mark Ellis is an experienced litigator who appears regularly before all levels of courts and tribunals in Ontario. Mark has also appeared as lead counsel on several occasions at the Supreme Court of Canada. As the author of Canada’s leading treatise on fiduciary obligations and three related books, his opinion is regularly sought in Canada’s boardrooms regarding all aspects of corporate compliance and governance. Mark is a highly-regarded speaker, having chaired over two hundred conferences throughout his career, and spoken internationally regarding compliance, governance and anti-corruption. He is also a visiting professor at Queen’s University.

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Surprisingly, evidently not. Briefly the facts in Plate v. Atlas Copco Canada Inc., 2019 ONCA 196: an Executive in the role of Vice President Global Strategic Customers was terminated for just cause grounded in a decades-long defrauding of the company and its benefits provider in conspiracy with the latter’s consultant, to the extent of over $20,000,000, over a million of which resulted to the Executive personally. His argument that he was a bystander incidentally enriched to the knowledge of the employer failed, conviction entered, no appeal pursued.

In the course of the criminal process the Court readily found that the Executive was a “fiduciary”, a formidable position of trust: the duty of replete fidelity, selfless devotion to the “beneficiary” (here the employer), compelling so-called “righteousness” behaviour.…
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Faith-based, as in “good faith”, that is.

Not that long ago the Supreme Court installed “good faith” as core to the fabric of contractual relations in Canada whether commercial or employment, whether ostensibly arms-length as “independent contractor” or employment per se. Implying a duty to act fairly in contract is not foreign to other jurisdictions— it is foundational to EU legal principals and long-since present in the Restatements of US law.

Here, not so much. In the 60s Ontario Justice Goodman enthused about incorporation of “good faith” as a distinct implied term of contract; alas conservative sentiment rendered that distillation jurisprudential ‘moonshine’. Some 50 years on Bhasin v. Hrynew (2014) refined that elixir into single malt: the SCC aspirationally confirmed that we all gotta have ‘faith’.

While it remains difficult to be ‘sort-of pregnant’, good faith became operational but not as an independent “cause of action”. But as an influencer of import in contractual relations, it has certainly come of age: Mohamed v. Information Systems Architects Inc., 2018 ONCA 428.…
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The mass resignation of the Executive Committee of the Board of the Ontario Medical Association is not ‘abandoning ship’: the individual members are remaining on the Board of Directors because “They have a wealth of experience and knowledge that would be a significant loss to us if they were to leave the Board. The Executive Committee is making this choice in the hope that this will help unify doctors and advance the interests of the profession at this critical juncture”: “Ontario Medical Association head resigns following no-confidence vote.” The Globe and Mail, 6 February 2017.…
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In what looked outwardly as a mercurial development, management of the union local that represents Toronto Transit Commission workers was itself subject to discipline and it didn’t involve the proverbial requisite remedial form that unions promulgate to employers. Incestuously, this was Big Brother telling a younger — and foreign — sibling to ‘leave the sandbox’ immediately: “TTC union heads fired in power battle with U.S. union.” The Globe and Mail, 3 February 2017. …
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Prime Minister Trudeau portended the legalization of ‘pot’ in Canada in his election campaign. Pending such development, a recent decision by a court-appointed Board of Inquiry has ‘planted the seed’ for coverage of medical marijuana prescriptions under employee benefit plans: Skinner v. Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund (“Skinner“).…
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“‘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.…
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Recently Canadian singer Alanis Morissette became the latest well-publicized victim of fraud at the hands of one she employed and trusted: http://www.bbc.co.uk/news/amp/36316327. She joins a long list of celebrities who have suffered fraud at the hands of those employed to trust, amongst them the Beatles, Beyoncé, David Bowie, Billy Joel, Bob Dylan, Leonard Cohen, Elvis, the Rolling Stones. …
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At this year’s Davos World Economic Forum, Google’s co-founder, Sergey Brin, professed surprise at the rapid onslaught of AI — artificial intelligence. “This revolution has been very profound and definitely surprised me even though I was right in there”, commented Mr. Brin, whose Alphabet unit leads the AI charge. He advised that these developments have enormous global repercussions on all aspects of commerce and law, and certainly on employment.[1] …
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Given Blue Monday, many of us are reminded of how depressing January can be after the euphoria of the “festive season” has passed. But feeling “off” is not the same as being clinically depressed. Just ask Bruce Springsteen, who recently unmasked his quiet suffering in his autobiography Born to Run : “I believe it’s the same for most people. You’re looking for something, some place where you feel comfortable, where you’re able to express yourself; some place you feel safe. It is the answer to a lot of the conflicts.” …
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