This is the ” any time ” and/or ” any reason ” set of cases heard together by the Ontario Court of Appeal .
The main issues argued were:
1. Standard of Review
2. Are either or both of these phrases contrary to the ESA?
3. Does the other language in the termination clauses save any alleged defect?
4. To what degree is any do we look at the parties intentions?
Things that I picked up.
1. There are apparently 47 separate provisions in Ontario statutes that prevent an employer from firing an employee even of they pay the ESA termination payments. These include the Employment Standards Act, the Occupational Health and Safety Act, The Human Rights Code, the Securities Act and the Labour Relations Act. Therefore, even if the clause says that if we fire you for any reason you will still get the ESA amounts, this is not what then law provides, , as theses statutory provisions protect the employee from even being fired. The statutory remedy can be reinstatement, which is not available under the common law.
2. Counsel for the employees stressed the fact that all employers have to do to be compliant with the ESA is to not use those terms. No one made a submission as to why these words would even be necessary.
3. The Court seems to want to bring some certainty to this whole issue, which may be one of the reasons why they heard the two cases together.
4.Employer counsel pointed out that many previous cases allowed this exact language. Employee counsel pointed out that in most of those cases, the issue was not addressed because it was not even raised.
5. There are recent cases where the Court of Appeal has found that certain termination clauses are legal, presumably putting to rest that it is “impossible ” to draft such a clause.
6. Some of the judges questioned how any average person could understand the complexities of the ESA termination provisions .
7. For the Baker case to be overturned, it may not be enough for the Court to find that the Judge was wrong in his ruling on the”any time’ argument because there were also issues with the “with cause” termination provision because of Waksdale. That issue does not arise in Li because the only alleged defect is the “any time for any reason” argument. It would very difficult, if not impossible, for a 3 panel Court of Appeal overturn a prior Court of Appeal decision. For that you would need a 5 panel Court, which apparently was requested but refused.
8. In Li the Employee counsel argued that the trial judge failed to even consider the reasons in Baker as to why the subject clause was illegal .Rather he simply said that because the overall termination clauses were different, he did not have to follow Baker.
The entire panel of Judges certainly ” got it” . They were well prepared and asked many penetrating questions of counsel.
I do not know who won. I, like you, must await the Courts’ reasons.