This is the first of our two-part series on recent Ontario Superior Court of Justice decisions that employers need to be aware of before finalizing their next employment agreement. The decisions highlight the risk of failing to include an enforceable termination provision in the employment agreement. Absent such a provision, an employee dismissed without cause will be entitled to “reasonable notice” of termination at common law.

In this first part, we examine two recent decisions of the Court that suggest that the Court now favours longer notice periods for long service employees of advanced age: Dawe v Equitable Life Insurance Company, 2018 ONSC 3130 (Dawe) and Saikaly v Akman Construction Ltd., 2019 ONSC 799 (Saikaly). Until recently, 24 months was generally considered as the upper limit of notice entitlement that courts would award absent exceptional circumstances.
Continue Reading

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

The Ontario Court of Appeal just released another decision on the interpretation and enforceability of termination clauses – the latest chapter in a less-than-clear set of guidelines. Generally speaking, a properly drafted termination clause can be used to limit an employee’s entitlements on dismissal.
Continue Reading

Keenan v Canac Kitchens, 2015 ONSC 1055 (“Canac Kitchens“) serves as an important reminder that simply using the term “independent contractor” in an agreement is not enough to protect an employer from its obligation to provide, among other things, reasonable notice upon termination.  The nature of a working relationship is generally defined by the actual nature of the relationship, including how the parties conduct themselves, not by the terminology used by the parties to describe their relationship.
Continue Reading

One of the questions we are commonly asked by non-unionized employers is whether they should use written employment agreements with their employees. While written employment agreements are not a replacement for sound human resources planning or judgment, a well-written agreement, tailored to the specifics of the employment relationship, can be an invaluable component of successfully managing employees throughout the life-cycle of the employment relationship, beginning to end.
Continue Reading