Special thanks to co-presenter Sarah Mavula.

Quebec’s Bill 96 significantly expanded existing French language requirements under Quebec’s Charter of the French language, including new translation requirements for a wide range of employment documents. Similarly, the treatment of commercial standard form contracts (or contracts of adhesion) must now be translated into French first, even if the parties agree to

“Stay-or-pay” clauses, a growing practice in the US, involve penalizing employees who break the tenure of their employment contract. Check out this recent article from Human Resources Director, “Stay-or-pay clauses in Canada? Experts weigh in on the U.S. trend of charging employees who quit” with insight from our own Andrew Shaw.

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With special thanks to our presenters Benjamin Ho (United States),  Matías Herrero (Argentina), Leticia Ribeiro (Trench Rossi Watanabe, Sao Paulo*), Maria Cecilia Reyes (Colombia) and Liliana Hernandez-Salgado (Mexico).

In this session, US-based multinational employers with business operations in the Americas region hear directly from Benjamin Ho and local practitioners on the major developments they

Join us for a four-part webinar series as our US moderators welcome colleagues from around the globe to share the latest labor and employment law updates and trends. US-based multinational employers with business operations in Asia Pacific, Europe, the Middle East and Africa, and the Americas regions will hear directly from local practitioners on the

We are pleased to share a recent Benefits Canada article, “Employers can’t rely on original termination clauses when employee responsibilities increase: court,” with quotes from George Avraam. A recent Ontario Court of Appeal decision upheld a motion judge’s award of over $400,000 to an employee on the basis of the changed substratum doctrine. The case

Special thanks to Oscar Ramirez (articling student in our Toronto office) for co-authoring this blog.

In Celestini v. Shoplogix Inc., 2023 ONCA 131, the Ontario Court of Appeal recently upheld a motion judge’s award of over $400,000 to an employee on the basis of the changed substratum doctrine.

What is the changed substratum doctrine?

The changed substratum doctrine recognizes that the employment relationship evolves over time such that sometimes it may be inappropriate to apply the provisions of an out-dated employment contract to a job that has changed significantly. The doctrine applies in situations where the employee’s duties have fundamentally expanded to a point where the underlying employment contract has substantially eroded, or it can be implied that the employment contract could not have been intended to apply to the employee’s latest role.

Factual background

In 2005, Mr. Celestini became Shoplogix Inc.’s Chief Technological Officer through a finance arrangement with a venture fund. As part of the deal, he would step down as Shoplogix’s CEO and serve as its CTO under a written employment contract, which he signed in 2005. The employment contract limited Mr. Celestini’s entitlements upon termination of employment.

In 2008, Mr. Celestini and Shoplogix entered into an Incentive Compensation Agreement (“ICA“) which significantly altered Mr. Celestini’s bonus entitlements. Shoplogix did not amend the 2005 employment contract at this time.

There was an expansion of Mr. Celestini’s workload and responsibilities that coincided with the execution of the ICA and a change in leadership. His new responsibilities included: “managing important aspects of sales and marketing; directing managers and senior staff who were reassigned to report to him; travelling to pursue international sales; handling all of the company’s infrastructure responsibilities; and soliciting investment funds.”

In 2017, Shoplogix terminated Mr. Celestini without cause. Shoplogix took the position that Mr. Celestini’s rights were governed by the employment contract he signed in 2005. But Mr. Celestini argued that the termination provisions in the 2005 contract were unenforceable because of the substantial changes to his position, and he was therefore entitled to reasonable notice at common law. He claimed he was entitled to common law damages for wrongful dismissal on the basis that Shoplogix breached the implied term to provide reasonable notice of termination.Continue Reading The Changed Substratum Doctrine Strikes Again – Ontario Court of Appeal Upholds Massive Damages Award Where Employee’s Duties Significantly Expanded

As we near the end of 2022 and bonus season is right around the corner, now is a great time for employers to review and update their employment agreements. In order to make changes to an existing employment agreement, the employer must give the employee “consideration.” Without consideration, the changes would not be enforceable.

Consideration

In an encouraging decision for employers, the Ontario Court of Appeal clarified that a corporation is not a common employer just because it “owned, controlled or was affiliated with another corporation that had a direct employment relationship with the employee”. In O’Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385, the Court affirmed that the

At common law, employers have a right to terminate an employment relationship, subject to reasonable notice of termination. When an employer breaches this implied duty, employees are entitled damages for wrongful dismissal, which presumptively include damages for lost incentive compensation unless an employer unequivocally ousts that right in an employment agreement or incentive plan. In Matthews v. Ocean Nutrition Canada Limited, the Supreme Court of Canada confirmed that absent “absolutely clear and unambiguous” language in the employment agreement or the incentive plan restricting such entitlement, incentive compensation is considered part of the damages owed in lieu of common law reasonable notice.
Continue Reading SCC Reminds Employers of the Costly Implications of Imprecise Language in Incentive Compensation Plans