September 28, 2020
It has been a tumultuous year in the land of employment law in Canada. What had become viewed as rock solid termination provisions began to get thrown out at the end of 2019 in the Court of Appeal decision in Andros v. Colliers Macaulay Nicolls Inc. and 2020 has seen several other decisions, including Waksdale v. Swegon North America also from our Court of Appeal which leave us to advise our clients these days that we cannot predict with certainty what a court will do with a termination provision but the general direction is towards non-enforcement.
All employers should accept that there is a chance that whatever the language of a termination provision in an employment agreement, a court may find it to be not enforceable.
Employees are gleefully having their lawyers cite the Waksdale decision. There has not been a week which has passed since its release in June in which our team has not cited it in a letter or on behalf of an employee and it was cited in a letter received by us on behalf of an employer client. The result, the employee often overnight developed a very good claim to reasonable notice of termination at common law as opposed to the employment standards minimum prescribed in the contract. Employers scratched their heads.
When you then consider the decision in Rutledge v. Canaan Construction Inc. in which a termination was not enforceable as it provided the employee could be terminated without notice as he was a construction employee because there was a possibility that at some point of time in the future he could cease to be a construction employee – you throw up your hands and say we can count on nothing but uncertainty.
If that was not enough, the provincial government has been changing the regulations under the Emergency Management and Civil Protection Act with such frequency, and virtually always as the clock is about to strike midnight the rules change. Our employer clients have been throwing up their hands deciding on recalls to work, layoffs and pandemic leaves. They are met with frequent calls from and visits by Public Health and in some cases the Ministry of Labour. Everyone is scrambling to figure out which employees will be able to work again when schools reopen and the reopening date of schools has been shifting like the tides.
What has all this taught us? We need to be agile. We need to stay on top of developments like these to advise and inform our clients on the day to day every single day. Businesses need to reach out for advice more than ever before and be ready for change and be ready to adapt. Businesses also need to more carefully than ever in planning their resources, consider carefully the cost of reorganization or downsizing before simply ploughing ahead. 2020 has been a wild ride and it is not over yet.
The Employment Group at Koskie Minsky is here to help you navigate these ever-changing waters and stay clear of unintended consequences.