Leading counsel will review the past year’s most important employment law decisions and explain how they will affect you in the coming year. The panel will also flag significant ongoing litigation. Final selection of topics will take place a few weeks before the audio conference to ensure up-to-date coverage of the most consequential developments. Specific cases to be discussed include the following:

Unconscionability

• Uber Technologies Inc. v. Heller (Supreme Court of Canada): What test should be applied to determine whether a contractual clause or provision is unconscionable? Was it unconscionable for Uber to require that employment claims be submitted to arbitration in Europe, and why? How will this decision more broadly impact employment contracts and releases?

Entitlement to Bonus/Incentive during Reasonable Notice Period

• Matthews v. Ocean Nutrition Canada Ltd. (Supreme Court of Canada): What is the test to determine whether a particular bonus or benefit forms part of an employee’s compensation for the purpose of calculating damages for failing to provide reasonable notice?

Termination Clauses

• Rossman v. Canadian Solar Inc. (Ontario Court of Appeal): Will a short-notice-on-termination clause that breaches a minimum employment standard be “cured” if the employment agreement contains a “saving provision” that purports to guarantee minimum statutory entitlements, or will the termination clause be voided and have no effect?
• Rutledge v. Canaan Construction Inc. (Ontario Court of Appeal): Is a termination clause void and unenforceable where it could breach the Employment Standards Act in the future, even if it does not do so at the time it is signed?
• Battiston v. Microsoft Canada Inc. (Ontario Superior Court of Justice): Are employers required to bring a harsh or onerous termination provision to an employee’s attention in order for it to be enforceable?
• Waksdale v. Swegon North America Inc. (Ontario Court of Appeal): Should “just cause” and “without cause” provisions be considered separately where the employment agreement contains a severability clause, or will the illegality of one provision impact the enforceability of the other?

Fixed-Term Contracts and Mitigation

• Quach v. Mitrux Services Ltd. (British Columbia Court of Appeal); Crook v. Duxbury (Saskatchewan Court of Appeal); Rice v. Shell Global Solutions Canada Inc. (Alberta Court of Queen’s Bench): Do employees with a fixed-term contract have a duty to mitigate their damages? How do courts treat mitigation in cases in which an employee with a fixed-term contract is dismissed and obtains other employment during the remaining term? Can these new earnings be deducted from damages for wrongful dismissal? Does the answer vary depending on the jurisdiction?

Class Actions

• Fresco v. Canadian Imperial Bank of Commerce (Ontario Superior Court of Justice): Can overtime pay be restricted to cases in which an employer required or pre-authorized such work? Will an employer be liable for overtime pay where it was aware that an employee was working beyond standard hours and took no steps to prevent it?

Jurisdiction

• Deol v. Dreyer Davison LLP (British Columbia Supreme Court): Will a constructive dismissal claim based on workplace bullying or harassment be barred due to the exclusive jurisdiction of the Workers’ Compensation Board? Can a plaintiff bring a court action for constructive dismissal if the defendant’s conduct would amount to discrimination under the Human Rights Code?