'Waksdale probably invalidated about 95% of the contracts out there'

After a 2020 seminal Ontario court case threw many employment lawyers for a loop, there is one sure-fire way to thwart potential lawsuits, says an employment lawyer.

“Drafting deficiencies are really at the core of litigation and disputes,” says R. Mark Fletcher, partner at Grosman Gale Fletcher Hopkins in Toronto.

“If you’ve got a really good contract, you can prevent a lawsuit before it happens because the employee’s lawyer will say, ‘This contract is enforceable. It’s really well-drafted. There’s nowhere we can go from here.’”

Employers want a contract that is enforceable so they can predict what the outcome will be given certain circumstances, says Fletcher.

“You want predictability and you don’t want to find out later on, when you’re in court, that the contract you’re relying on is unenforceable.”

Waksdale case invalidates contracts

Fletcher, who represents both employees and employers, will be speaking at the upcoming Employment Law Masterclass event to be held online on Sept. 7 and he shared some of his presentation notes with Canadian HR Reporter.

“With the recent Ontario Court of Appeal case in Waksdale — which dealt with just cause language in a termination clause and how if it offends the ESA [Employment Standards Act] — it brings down the entire regime and I would say that Waksdale probably invalidated about 95% of the contracts out there.”

Participants at the event will hear how to identify...

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