” In Accordance with the ESA ” Does Not Oust Reasonable Notice

In Bellini v. Ausenco Engineering Alberta Incorporated (2016 NSSC 237) the Court was faced with the following termination provision:

15.1 Conditions

Although the Company anticipates a long term employment relationship, our business is subject to economic factors which sometimes necessitates a reduction in workforce. We have therefore adopted a policy of specifying termination conditions in our employment letters. If it becomes necessary for us to terminate your employment for any reason other than cause, your entitlement to advance working notice or pay in lieu of such notice, will be in accordance with the provincial employment standards legislation. 

In an incredibly erudite judgement, containing numerous references to Court decisions all over Canada, Justice Leblanc found that this language did not oust the common law impled term of reasonable notice.

[43] On a consideration of all the relevant law, I conclude that I should follow the authorities requiring a higher level of clarity in termination provisions that are said to oust common law notice. The Court of Appeal decision in Kaiser alludes to this reasoning, although admittedly the point was not directly dealt with. I find the reasoning in cases such as McLennan, Cybulski and Kosowan persuasive. I take note of Clarke, but the provision in that case specifically referred to “reasonable notice” and stated clearly that “no further amounts will be due and payable … whether under statute or common law.” I believe that is significantly clearer and more specific than the language I am dealing with here. The provision in this case is at best ambiguous as to whether the parties intended the statutory minimum to apply, or simply whether the applicable notice would be consistent with the legislation. It would not be difficult for an employer to draft a termination clause that leaves no doubt as to the parties’ intention to oust common law notice. This language does not do that. I am not convinced that the court should apply a strained interpretation to attribute such meaning to contract language that does not specifically say so. As such, I am not convinced that the termination provision ousted Mr. Bellini’s right to common law notice.

He then went on to award 6 months notice  for a 61 year old, Senior Professional Engineer with 3 years and 3 months service.

Any lawyer needing an excellent review of the law in this area should bookmark this case.