Author: barryfisher

Dependant Contractors Do Not Get Less Notice Than Employees:

In Leibreich v Farmers of North America ( 2019 BCSC 1074 ) Russell J., having found that the plaintiff during her 14 years of service was first a dependant contractor and then an employee had this to say about the defendants’ argument that as she was a dependant contractor for some of her time the notice period should be automatically reduced:

106. In my view, there is no principled basis to automatically give less notice to a dependent contractor than an employee; rather, the fact that a plaintiff is a dependent contractor can be analysed in relation to the first Bardal factor: the character of the work. While it may be the case that the character of a dependent contractor’s work will be less integral and structurally or organizationally embedded than that of an employee, it is this substantive connection and character of the employment that ought to be the focus of the analysis, and not merely the plaintiff’s formal status or designation.

In Ontario, this has been settled case law since at least 2016, as noted by the trial judge in this quote:

105      Similarly, in Keenan v. Canac Kitchens Ltd., 2016 ONCA 79, the Ontario Court of Appeal upheld a reasonable notice period of 26 months for each of the two dependent contractor plaintiffs with 32 and 25 years of service respectively. There, too, there was no automatic “deduction” due to their dependent contractor status, either at the trial level or on appeal. In fact, the plaintiffs were given two of the highest notice periods ever awarded in Canada up to that point — two months over the general upper limit of 24 months which courts have stated is only to be exceeded in “exceptional circumstances”: see Dawe v. Equitable Life Insurance Company of Canada, 2019 ONCA 512at paras. 31-33, citing Lowndes v. Summit Ford Sales Ltd., [2006] O.J. No. 13 (O.N.C.A.) and Keenan; Ansari v. British Columbia Hydro & Power Authority (1986), 2 B.C.L.R. (2d) 33 (S.C.) at 42, aff’d (1986), 55 B.C.L.R. (2d) xxxiii (note) (C.A.).
Conflict and Proud Father Alert: My son, Matthew Fisher of Lecker & Associates, was counsel for the plaintiff in Keenan v Canac .

Progressive Discipline Leads to Termination For Cause for Poor Performance:

I sometimes hear lawyers tell the clients that upholding just cause for poor performance is almost impossible .

Not so, if the employer does it right.

In a recent Canada Labour Code adjudication entitled Bott v Shaw Cablesystems ( 2019 CarswellNat 3038) Adjudicator Gunn had a situation where a Project Manager was terminated for consistent poor performance over an extended period of time.

This is how Mr Gunn summarized his findings:

111      The conclusion I have reached might have been very different had Shaw not communicated their expectations of Mr. Bott, or not allowed him an opportunity to improve, or fired him in a peremptory manner, without using the progressive discipline steps. Instead, Shaw management used progressive discipline including a verbal warning, a written warning and then an unpaid suspension before dismissing Mr. Bott. At each stage in the process there was culpable conduct on Mr. Bott’s part. Mr. Bott’s supervisor, Mr. Jammu, met with him on several occasions to discuss incidents with him and to go over what was expected of him, such as not doing side projects. Mr. Bott ignored him and kept on working on side projects. Mr. Bott was told to keep stakeholders in the picture and be transparent about dates and changes to projects, but he continued not to do so.
112      In short, there is overwhelming evidence that there was just cause to terminate the employment of Ryan Bott. The Respondent has met the onus of establishing this. Mr. Bott’s complaint is therefore dismissed.
As this was a situation covered by the Unjust Dismissal section of the CLC, the employer could not simply have terminated  the employee at an earlier time without alleging cause  and paid reasonable notice. In a non-CLC case, it is often cheaper and more efficient to terminate an incompetent employee   and not allege cause than go through the lengthy process of progressive discipline in the hope of saving on the termination costs. The increased of severance is usually offset by the cost and risk of intentionally keeping on an incompetent employee.
As is often the case with CLC adjudications, the employee represented himself. Shaw was represented by Howard Levitt.

 

Excluding STD and LTD during Notice Period Voids Termination Clause:

In Cormier v 1772887 Ontario  Limited cob as St Joseph’s Communications ( 2019 ONSC 587) Justice Perell had to determine the enforceability of the following ESA termination clause:

Termination without Cause
(a) The Company may terminate your employment at its sole discretion, at any time for any reason, without cause, upon providing you the minimum notice, pay in lieu of notice and/or severance pay required by the Ontario Employment Standards Act, 2000, as amended from time to time. You will have no other entitlement to notice of termination, pay in lieu of such notice, and/or severance pay.
(b) In addition to the foregoing and subject to the consent of the Company’s insurers, you will be entitled to continue to receive Company benefits (excluding STD and LTD benefits) during the notice period specified above.
He found that under the ESA , all benefits must be continued during the termination pay period and by excluding STD and LTD , this section violated the ESA and thus under Wood v Fred Deeley, the entire clause was null and void.
As the Plaintiff was a Fashion Studio Manager with  23 years of service , her notice period was 21 months instead of the 31 weeks under the ESA.
This automatic exclusion of LTD and STD during the termination period under the ESA ( which maxes out at 8 weeks ) is a very common clause in termination agreements .
These is the actual words from the decision:
88      The problem, however, for St. Joseph’s Communications is that while some aspects of the termination clause found in the 2012 employment contract were unobjectionable, the treatment of the employee’s benefits during the notice period were contrary to the Act. There was a fatal flaw, an Achilles’ heal so to speak, in the 2012 agreement making its termination clause void and unenforceable.
89      To be more precise, the termination clause in the 2012 employment contract purports to allow St. Joseph Communication upon termination to provide Ms. Cormier with only some of the employee benefits that she received before termination and even then, only subject to the consent of St. Joseph Communication’s insurers. With respect to the employee benefits, the termination clause therefore provides Ms Cormier with a lesser right than the rights set out in the Employment Standards Act, 2000 and therefore, the entire termination clause is void.
90      The case at bar is on all fours with Wood v. Fred Deeley Imports Ltd.. In the Wood case, Ms. Wood’s employment was terminated without cause and her employer relied on a termination clause in her written employment contract to avoid the common law presumption that Ms. Wood was entitled to pay in lieu of reasonable notice. Pursuant to the termination clause, she received thirteen weeks of working notice plus a lump sum equivalent to eight week’s pay. Although some of the payments made to Ms. Wood under the termination clause were superior to what she would receive under the Employment Standards Act, reversing the motion judge, the Court of Appeal ruled that the termination clause was unenforceable because it excluded the employer’s statutory obligation to make benefit contributions during the notice period and the termination provision also did satisfy the employer’s obligation to pay severance pay.
91      The Court of Appeal held that there is a rebuttable common law presumption that if a person who is hired for an indefinite period is dismissed without cause, then he or she is entitled to reasonable notice or a continuation of pay in lieu of reasonable notice. The presumption of reasonable notice can be rebutted by the parties agreeing to a different notice period provided that their agreement is compliant with the minimum employment standards of the Employment Standards Act.50
92      Justice Laskin, who wrote the judgment for the Court, stated out that if the termination clause was not compliant with even one of the employment standards by not substituting a greater benefit for that standard, this would make the termination clause unenforceable and entitle the employee to reasonable notice in accordance with the common law presumption.51 Further, Justice Laskin held that even if the employer ignored the provisions of the termination clause and offered to meet the minimum standards of the Act, the termination clause would be unenforceable. He said that the enforceability of the termination clause depends only on the interpretation of the clause itself and not on what the employer may have done on termination.52
93      As noted above, the termination provision in the 2012 employment contract does not provide benefits better than the minimum standards of the Employment Standards Act, 2000. It follows that the termination clause is unenforceable.
This decision was recently upheld by the Ontario Court of Appeal ( 2019 ONCA 965)

OCA Finally Sets Limits on Reasonable Notice:

In Dawe v Equitable Life Insurance Company ( 2019 )NCA 512) the Ontario Court of Appeal struck down a 30 month notice period and reduced it to 24 months .

The Plaintiff hit all the Bardal Factors. He was a senior Vice President. He had 37 years of service. He was 62.

The Court of Appeal reiterated that although there no absolute upper limit or cap, reasonable notice in excess of 24 months is only justified in “exceptional circumstances “.

The Court of Appeal was critical of some of of the factors that the trial judge referred to :

  1. Rather than focus on any ” exceptional circumstances” the judge commented that now that we no longer have age 65 mandatory retirement, ” presumptive standards should no longer apply. The OCA noted that mandatory retirement was abolished in Ontario in 2006 so this is by no means a recent event. In any event the Plaintiff testified that he actually planned to retire at age 65.
  2. The trial judge said that the termination was a ” forced retirement” when in fact the Plaintiff requested an exit package as a result of a conflict he was having with some fellow executives.

In essence what the Court was saying is that “exceptional circumstances” cannot simply be the same Bardal Factors that you use to figure out the normal notice period.

What are exceptional circumstances that will warrant a notice period of more than  24 months ?

Stay tuned as new cases and creative lawyers will undoubtably come up with new arguments as to what are or are not ” exceptional circumstances “.

Although  plaintiff lawyers may well disagree, I believe that this is a good legal development as it brings a modicum of certainty to a very uncertain world.

By the way, this was the same trial judge who commented in his award that he personally would have awarded 36 months notice but as the plaintiff only asked for 30 months, he was awarding only 30 months. Perhaps the Court of Appeal was using this decision to bring to an abrupt halt this idea of ever expanding notice periods.

OCA Distinguishes Employee Rights v Shareholder Rights :

In Mikelsteins v Morrison Herschfield Ltd. ( 2019 ONCA 515) the Court of Appeal revised a trial decision where an executive was given 26 months notice. The Plaintiff, in addition to his salary, was a shareholder in this private company and as such received dividends from time to time. The Shareholders Agreement also had a section which said as follows:

A Shareholder whose association with the Corporation and its Affiliates ceases by reason of termination by the Corporation of his/her employment with the Corporation and its Affiliates shall, immediately after such termination, be deemed to have given a Transfer Notice covering all of the Shares held by him/her on a date which is 30 days from the date he/she is notified of such termination by the Corporation.

The trial judge interpreted this clause to mean that the ” termination of his employment ” had to mean his lawful termination, in other words at the end of the 26 month notice period.

The Court of Appeal disagreed. They said that it was an error of law to incorporate a common law employment analysis to a corporate document like a Shareholders Agreement.

      With respect, contractual rights differ from common law rights. Contractual rights depend on the terms of the contract to which the parties have agreed. The principle enunciated in Love, and reiterated in Evans, is that there is a difference between what a dismissed employee is entitled to as damages in lieu of notice upon termination of the employment contract and what the employee is entitled to under the terms of more specific contracts.

What is the policy reason referred to by the Court  for this distinction ?

Similarly here, the Shareholders’ Agreement uses the cessation of Mr. Mikelsteins’ employment as the triggering event for the process to transfer his shares. The termination occurred on October 26, 2017. There is a very plain and obvious reason why a corporation, that is employee owned, and which has terminated an employee who also happens to be a shareholder, would wish to commence the process of repurchasing the employee’s shares the moment that employee is told of his or her dismissal, rather than at the end of the notice period. Understandably the corporation would not wish an employee to be able to exercise all of the rights of a shareholder once their employment is terminated.

This case follows another Court of Appeal case called Love v Acuity Investment Management , ( 2011 ONCA 130) in which a share repurchase agreement was interpreted the same way.

My Comments:

The policy reason set out by the Court seems odd. Of course the Company, aka the Employer, would want to avoid paying dividends to an employee they illegally fired. So what ? Why not ask what the the shareholder, aka the employee, would like ?

Since when is what one party likes a ground for interpreting a contract?

Since the plaintiff’s entitlement to even be a shareholder was tied to him being an employee, why make this artificial distinction between common law employment rights and contractual rights ?

Why do contractual rights override common law rights?

It seems that if instead of being a shareholder per se, the plaintiff had a a provision in his employment contract that his bonus would equal the dividend paid to shareholders, the Court would have allowed him to receive dividends throughout the notice period.

It is important to note that both in  this case and in Love that the employees were shareholder in privately held companies, not publicly traded ones.

Perhaps I could suggest a different rationale for why Courts seem to treat these cases of repurchase agreements differently than the employee owning stock options in public companies type of cases where it is clear that the termination date is the lawful termination date, not the actual date .

  1. Private companies require certainty in who the owners are at any given time more than public companies. If the repurchase date were at the end of the notice period then no repurchase could take place until a Court determined that date. This could take years and what shareholder rights would the dismissed employee have during that time? The interests of a current employee/ shareholder are vastly different than those an ex-employee/ soon to not be an ex-shareholder.
  2. If the share price fluctuated wildly after the actual termination, then each party would argue the notice period that happened to favour their desired stock price. For example, if 3 months after termination the price dropped and continued to drop for the next 9 month, the plaintiff would argue the notice period was 2 months and the employee would say that the proper notice period was 12 months.

This case reminds me why I used to tell my plaintiff clients not to be enthralled with the idea of being a minority shareholder of their employer. If you want a share of the profits, negotiate a profit sharing arrangement without the necessity of actually being a minority shareholder.

This case accentuates the advantage of being an employee over being a powerless minority shareholder.

 

 

 

Do All Arbitration Clauses in Employment Agreements Violate the ESA?

In Rhinehart v Legend 3D Canada ( 2019 ONSC 3296) Justice Sanfilippo was faced with a motion by the defendants to stay the action as the employment contract had an arbitration clause that said as follows:

All of us at Legend are very excited about you re-joining our team and look forward to a beneficial and fruitful relationship. However, should any dispute arise with respect to your employment or the termination of that employment, we both agree that such dispute shall be conclusively resolved by final, binding and confidential arbitration in accordance with the Voluntary Labor Arbitration Rules of the American Arbitration Association (AAA) in San Diego, rather than by a jury, court or administrative agency.”

This agreement was signed by the Plaintiff when he worked in California for the US parent. He was then was moved to Ontario and employed by the Canadian subsidiary, but he never signed an agreement with the Canadian company.

The judge ruled on a number of issues:

  1. As there was no arbitration agreement between the Plaintiff and his Canadian employer, it was not applicable to his termination of employment from the Canadian company .
  2. It is for a Court, not the arbitrator,  to determine the validity of the arbitration clause because the court shall only stay arbitration proceedings that flow from a valid arbitration agreement . ( Heller v UBER Technologies 2019 ONCA 1, appeal pending to the SCC) .
  3. As the arbitration clause purports to cover all claims arising from employment , this offends the Employment Standards Act which provides for a complaint and enforcement process that cannot be contracted out of. ( see Heller).

The action was therefore not stayed.

I find the third reason very interesting. The clause in question refers to purporting to  oust  the jurisdiction of any ” administrative agency “.

The same logic would seem to apply to invalidate this type of clause in the following situations:

  1. A complaint under the Human Rights Code.
  2. A complaint under the Labour Relations Act
  3. A complaint under the Occupational Health & Safety Act

All of these statutes have administrative complaint procedures that cannot be contracted out of, thus an arbitration clause that purports to deny access to these tribunals would be additional grounds for invalidating an arbitration clause.

Almost every arbitration clause in an employment contract that I have ever seen would seem to have this fatal defect. Does this mean that they are all null and void?

How  does one  avoid this issue ?

I suppose one way would be to try to limit the arbitration clause only to those matters that would otherwise be determined by a court and not purport to cover those items covered by administrative tribunals or the types of statutes that I referred to above.

 

Costs Award Reduced from $171,000 to Zilch:

In Evans v Paradigm Capital, ( 2019 )NSC 3046) Gans J was called upon to reconsider his trial award of costs after the Court of Appeal reduced the Plaintiff’s damages from $137,000 to $57,000.

At trial the Plaintiff was awarded costs of $171,000 plus disbursements . On the reconsideration of costs, for reasons which are not all that clear, Justice Gans said as the results were mixed, there would no order as to costs.

So originally the Plaintiff the Plaintiff won a total of $308,000.

After her failed  appeal, she is only getting $57,000.

In other words by appealing, she lost over $250,000.

Remember the  old adage:

Quit when you are ahead.

 

Failure to Repeat Termination Clause after Multiple Promotions Voids Clause:

In McKercher v Stantec Architecture ( 2019 SKQB 100) Justice Elson had a situation where at the time of his hiring as a staff architect , the plaintiff signed an enforceable contract limiting his notice to a maximum of 3 months.

When he was terminated 11 years later, he had been promoted a number of times and ultimately  held the position of Business Centre Sector Leader, reporting to a VP.

Applying the change in substratum argument, the judge had this to say :

Further, and as informed by the longstanding authority in Bardal v Globe & Mail Ltd. (1960), 24 DLR (2d) 140 (Ont H Ct) [Bardal], the period of reasonable notice increases with, inter alia, the length of service and the level of responsibility. In my view, it necessarily follows that where an employer wishes to rely on a comparatively short notice limit in the original employment contract, it must take reasonably consistent and meaningful efforts to protect the limit’s enforceability. This means that where an employee advances to higher levels of compensation and responsibility, it is incumbent on the employer to reassert its reliance on the contractual notice limit and to ensure that the employee both understands and accepts the employer’s position.

Having failed to this, the Judge found that the termination clause was unenforceable and awarded reasonable notice of 12 months.

There are three ways that an employer can avoid this from happening :

  1. Include a clause in the original contract that the  termination clause continues to apply throughout the employment period notwithstanding any change in position or compensation.
  2. Include a line in all promotion and compensation letters reconfirming the termination clause.
  3. Have a termination clause which is more reflective of common law reasonable notice.

Laying of Criminal Charges After Dismissal Does Not Delay Limitations Period :

In Sosnowski v McEwan Petroleum ( 2019 ONSC 1860) Macleod-Beliveau J. had a situation where the following chronology applied:

November 2009 – Plaintiff fired for cause

July 2010- Plaintiff charged with theft by Crown

August 2010 – Plaintiff convicted and sentenced

November 2014 – Conviction set aside on appeal

July 2015 – Plaintiff starts civil action for wrongful dismissal

The Court found on a summary judgement motion that the 2 year limitation period started when the plaintiff was fired in 2009 and was not delayed or “tolled” because of the subsequent criminal proceedings.

$30,000 for Aggravated Damages For Not Being “an Indigenous Canadian.”

In Torres v Vancouver Native Health Society ( 2010 BCSC 523) Justice Murray awarded 24 months notice to a 58 year old Project Manager with 20 years service.

The Court also awarded $30,000 for aggravated damages for the following reasons:

1) Abruptly and without notice terminating his employment when, as Mr. Demerais testified at his examination for discovery, there was no reason to do so;
2) Immediately escorting him from the office;
3) Sending out an email to the entire DTES social services community advising that he was no longer employed by or associated with them, leaving the impression that the plaintiff had been engaged in some wrong doing or impropriety;
4) Having him served with an intimidating lawyer’s letter demanding that he cease and desist communicating with any of the defendant’s employees and threatening legal action instead of talking to him about their concerns;
5) Making baseless allegations about the plaintiff to the LRB to justify their actions; and
6) Deceiving him about the true reason for his dismissal. It was only during the trial that the plaintiff learned the true reason for his termination. As outlined above both Mr. Demerais and Ms. Vermette conceded in cross-examination that the plaintiff was actually terminated because he was not an Indigenous Canadian.
Why didn’t the judge also award damages for breach of the Human Rights Code ?
52      I pause to note that whether firing the plaintiff for not being Indigenous is discriminatory or contrary to the Human Rights Code, R.S.B.C. 1996, c. 210, is not an issue before me. The import of this evidence in this trial is that it shows that the defendant was dishonest with the plaintiff and the LRB about why his employment was terminated.
One wonders how much more would have been awarded for the human rights component if it had been properly pleaded.