Years spent litigating employment disputes across Canada have made at least one thing clear: the legal determination of important workplace issues can dramatically differ from province to province such that prudent advice in one would be negligent in another.
Dating back to 2019, this column has chronicled a series of cases from the highest court in Ontario and the Supreme Court of Canada that have shaped the law on employment contracts. The news has generally been devastating for employers.
In Ontario, the current state of the law considers the common intentions of an employer and employee to be irrelevant when assessing the enforceability of a termination clause. Instead, the focus is invariably on performing line-by-line inspections of the contract’s precise terms to root out minor drafting errors, theoretical breaches and trivial ambiguities — the existence of which renders the termination provision unenforceable.
The recent tendency of Ontario courts to invalidate employment contracts has caused lawyers to become complacent: Employee representatives are no longer required to be creative or develop thoughtful legal positions; and their counterparts are aware that any form of inspired argumentation will not be taken seriously.
Our legal cases elsewhere have found that this same defeatist mindset also prevails in British Columbia. But, unlike in Ontario, the role of “winner” and “loser” is shockingly reversed.
The courts...
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