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

The Ontario Court of Appeal released yet another decision on the interpretation and enforceability of termination clauses: Rossman v. Canadian Solar Inc., 2019 ONCA 992. Recent appellate decisions on this matter have been inconsistent on this issue and unfortunately, Rossman is more bad news for employers. Nevertheless this decision provides guidance that should be considered in reviewing and drafting termination provisions in employment contracts.
Continue Reading Saving Provisions Unable to Save Termination Clauses

The Ontario Court of Appeal has reiterated that, barring exceptional circumstances, reasonable notice for dismissal without cause will not exceed 24 months. The Court partially overturned the lower court’s decision in Dawe v The Equitable Life Insurance Company of Canada, which also ruled on the enforceability of unilateral changes to the employer’s bonus plan.
Continue Reading 24 Months Reaffirmed as the “High End” of Reasonable Notice; Bonus Plan Changes Must Be Accepted by Employee

A recent decision of the Alberta Court of Appeal adds further confusion to the issue of the enforceability of termination clauses. In Holm v AGAT Laboratories Ltd, 2018 ABCA 23 (“Holm“), the Alberta Court of Appeal (“Court”) held that explicit language must be included in a termination clause to oust an employee’s common law rights.
Continue Reading Alberta and Ontario Courts Diverge on Termination Clauses

In the recent decision of Covenoho v. Pendylum Ltd., 2017 ONCA 284, the Ontario Court of Appeal put an end to any debate about the enforceability of termination provisions in employment agreements that may violate minimum employment standards legislation in the future. The takeaway for employers from the case is as simple as it is noteworthy: a termination provision that breaches minimum employment standards legislation in the future – even if compliant at the time of the employee’s termination from employment – is void and therefore will not be enforced.
Continue Reading Into the Void: Potential Future Violations of ESA Sufficient to Set Aside Employment Contract

The Ontario Court of Appeal recently confirmed not only that dependent contractors are entitled to reasonable notice of termination, but that 26 months can be an appropriate notice period for long-service dependent contractors.
Continue Reading Dependent Contractors are Entitled to Reasonable Notice (and Potentially Lots of It)

In a previous post, we discussed the Supreme Court of Canada’s (“SCC“) decision in Potter v. New Brunswick (Legal Aid Services Commission), in which the SCC purported to clarify the test for constructive dismissal as it applied to suspensions. But does the decision apply to all suspensions? What if an employee is suspended because of misconduct? Or pending determination of criminal charges? And do employers have to continue paying employees while suspended for these reasons?

To help provide some guidance, we will be publishing a two-part series dedicated to the issue of suspensions: what types of suspensions exist, when suspensions should be paid, and – perhaps most importantly – what types of suspensions courts may consider to have been constructive dismissals. This post will provide an overview of the law relating to paid suspensions, while our next post in the series will address unpaid suspensions.
Continue Reading Suspensions in the Post-Potter Age: Key Take-Aways for Employers (Part 1)

This two-hour CLE program will provide in-house counsel, HR professionals and business leaders with practical guidance and checklists to tackle the key issues that arise when their company moves into new jurisdictions around the world. We will look at three critical elements of international expansion:

  1. Getting the Structure Right, Early.  What factors do you consider when choosing the type of business entity to use for a particular type of business, long term objective and country?  Understand the impact your choice of business entity can have on your future business and related legal issues.
  2. Realities of Global Employment.  What are the most significant international employment, hiring and termination issues for in-house counsel dealing with international expansion and ongoing operations? Take away strategies to help you avoid the biggest pitfalls and successfully manage a global workforce.
  3. Equity Compensation.  How are companies thinking about equity outside of Canada? Learn whether the use of equity grants to provide future incentives and variable compensation for executives and other employees is available or advisable in other jurisdictions in light of securities law, tax withholding/reporting, exchange controls and other requirements.


Continue Reading Going Global: A Practical Survival Guide for Canadian Multinational Employers (May 28, 2015)