In Campbell-Givons v. Humber River Hospital, ( 2021 ONSC 6317) Justice Black again faced the issue of the enforceability of a illegal just cause clause on a without cause termination.
In this case the Plaintiff was a Senior Labour Relations Specialist, who presumably would have a much better understanding of employment law that the average person.
In direct response to the recent decision in Rahman v. Cannon Design Architecture Inc., 2021 ONSC 5961. in which Dunphy J. did consider the sophistication of the Plaintiff in upholding a contract which violated the ESA, the Judge said :
[45] The fundamental determination, in my view, is whether or not the clause or clauses in issue violate the ESA. If it does, then the clause(s) is void, and cannot be used as evidence of the parties’ intention.
[46] It is also problematic, in my opinion, to engage in a detailed analysis about the level of sophistication of an employee and whether or not they had time and opportunity to obtain legal advice. A termination clause cannot comply with the ESA for some employees but violate the ESA for others. It either violates the ESA or does not, and it either enforceable or not. It is a straightforward matter for an employer to incorporate clauses in an employment agreement that comply with ESA standards, and when that is not done the court should not be asked to rewrite the language of the termination provisions to achieve compliance.
For a copy of this case email me at barry@barryfisher.ca