The Blog

A recent case dealt another blow to the utility of “saving clauses” to rectify drafting errors in employment contracts. The Court in Groves v. UTS Consultants Inc. found a clause ostensibly supplanting the employee’s right to reasonable notice of termination was unenforceable and the intention to contract out of the common law was not salvaged by a saving clause that would have limited the employee to Employment Standards Act (Ontario) minimum notice.

Another Alberta wrongful dismissal case will be of interest to employment law and HR geeks seeking to hone their internal reasonable notice gauges. This post summarizes the Bardal Factors, confirms the reasonable notice period, and sets out some points of interest from the judgment in Hickaway v Riddell Kurczaba Architecture Engineering Interior Design Ltd.

Using independent contractors instead of employees can be a high stakes game. A recent case was doubtless a nail-biter for one employer, which narrowly avoided an expensive tax bill. MWW Enterprises Inc. v. M.N.R. provides a nice example of how courts approach the distinction between independent contractors and employees in tough cases.

A recent Human Rights case highlights the vastly different remedies available to employees in the Human Rights system versus the civil courts. After a 13-day hearing, the complainant in Pratt v University of Alberta received:

• compensation for 18 months’ lost wages, well exceeding pay in lieu of reasonable notice;
• general damages, including for mental distress; and
• reinstatement to a new position.

Companies generally don’t want to pay their dismissed employees bonuses that accrue after the termination date. But drafting policies to achieve that is easier said than done. The recent Ontario Court of Appeal decision Dawe v The Equitable Life Insurance Company of Canada, 2019 ONCA 512, provides an important example of a policy that was effective in limiting the dismissed employee’s entitlement to bonus.

It is common for testators to make gifts to their “children”, “descendants” or “issue”, such as a “gift of the residue of my estate to my issue per stirpes.” Because biological lineage is, it would seem, the criterion for entitlement to such gifts, beneficiaries under a will can try to increase their share of the gift by proving that other beneficiaries, such as their siblings, are in fact not biologically related to the testator and are thus not properly members of the class of beneficiaries.