Canadian Employment Law Today

Canadian Employment Law Today | 3 Cases and Trends Canadian HR Reporter, 2020 Requirement for lengthy notice of resignation enforceable: court New Brunswick vet's contract required 120 days' notice of resignation from position that was difficult to replace BY JEFFREY R. SMITH A VETERINARIAN must pay damages to an animal hospital after she quit her position and didn't provide four months' notice of resigna- tion as required in her employment contract, a New Brunswick Small Claims Court has ruled. The Fredericton Animal Hospital is a veteri- nary hospital located in Fredericton, N.B. In the spring of 2016, the hospital decided to extend its hours to include an afterhours emergency clinic. In order to do this, it needed to recruit two veterinarians to run the clinic and be avail - able for those hours. Quinn Horochuk contacted the hospital about filling one of the veterinarian positions and exchanged emails with management. The emails included key terms of the offer and other information. Eventually, the hospital offered Horochuk a job and told her it would send a contract for her to review and approve. Horo - chuk responded that she looked forward to signing a contract with the hospital. The contract included a clause that required Horochuk to provide "not less than 120 days written notice" if she decided to resign her em - ployment and a failure to do so "could result in damages to the employer for which it may exercise its right to seek a legal remedy." The clause explained that this notice was required because "given the specialized nature of your employment as a veterinarian, it may be dif - ficult to replace you." Horochuk signed the contract on June 23, 2016 and started her job on July 18. After two months of shadowing other veteri- narians at the hospital, Horochuk began work- ing independently as the lone veterinarian at the afterhours clinic. The hospital continued to search for a second veterinarian for the clinic. Without a second veterinarian for the af- terhours clinic, Horochuk had to work many hours on evenings and every weekend. It began to affect her work-life balance, so she requested that her work rotation be modified. The hos- pital agreed and changed the schedule so she would only work every second weekend. However, Horochuk continued to feel stressed working the afterhours clinic, which was aggravated by a dispute over whether she had to be at the clinic during bad weather and whether she had to make up missed shifts. Eventually, she started looking for another job in the Halifax area, where her family lived. 30 days' notice of resignation Horochuk accepted a job offer in Halifax and informed the hospital on April 3, 2017 that she was resigning and her last day would be June 1. The hospital first asked her to reconsider and then reminded her of the notice provision in her contract — she had only provided 60 days' notice of resignation instead of 120. Finally, it asked her to push back her departure by 30 days to allow more time to recruit and train her replacement, but Horochuk refused. Her last shift was May 30. The hospital was able to recruit two more vet - erinarians who were able to start working at the afterhours clinic on June 30 and July 3. How- ever, it commenced an action against Horochuk for breach of contract, claiming her departure without providing the contractual notice of resignation left the hospital without a veteri- narian to permanently service the afterhours clinic during the month of June 2017. It claimed $12,000 in damages for lost revenues and lost opportunities for profit. Horochuk countered that the employment contract was void and unenforceable because the notice of resignation clause wasn't in the original job offer she had received by email and she hadn't received any additional consid - eration when the hospital added it to her con- tract. She also argued that the length of notice required was unusually long and, therefore, made the contract unconscionable. The court noted that Horochuk was in a good position with bargaining power at the time of the job offer, as the services she offered were in demand and the animal hospital urgently needed to fill the posiiton at the afterhours clinic. There was no indication the job offer was a "take it or leave it" contract, so she was free to negotiate the terms up to the point of signing it, said the court. The court found that the emails between Horochuk and the animal hospital before the contract was sent to her were an exchange of in - formation and didn't constitute a binding con- tract offer or an acceptance of it. All the terms of employment weren't communicated until the hospital sent Horochuk the employment contract — which included the notice of resig - nation clause. No consideration was needed as nothing was added to the final contract, which Horochuk signed and made valid. "The emails represent a proposed agree- ment with the intent that the final agreement be embodied in a formal written contract and that neither party be bound until the final agree- ment was executed," said the court. "The parties were free to sign the June 23, 2016 employment contract without the problem of new consider- ation and amendments to a contract." Contract valid and enforceable The court also found that the required resig- nation notice period of 120 days was long — longer than would be required at common law without an express contractual provision. How- ever, in the circumstances, it wasn't "grossly un- fair" considering: • The time and effort needed to recruit veteri- narians • The extensive training needed for new veteri- narians • The expense the animal hospital incurred set- ting up the afterhours clinic and its revenue stream, which were both based on Horo- chuk's presence • The specialized nature of Horochuk's em- ployment • The difficulty to recruit a replacement for the evening and weekend hours. The court noted that Horochuk received the contract one month before the start date and had plenty of time to review it and seek legal advice, although she didn't do the latter. Since Horochuk had the opportunity to seek advice and was in a strong bargaining position — and the contract was written in plain language — the court found she wasn't victimized or taken ad - vantage of by the animal hospital through the employment contract. As a result, there was no reason to find the contract was unconscionable. The court determined the employment con- tract was valid and enforceable and Horochuk breached it by not providing 120 days' notice of resignation. Horochuk was ordered to pay the animal hospital damages totalling $4,362.73 — the animal hospital's operating loss for June 2017 before the new veterinarians started work - ing at the afterhours clinic, minus what it saved on Horochuk's wages during that period. For more information, see: • Fredericton Animal Hospital Ltd. V. Horochuk, 2019 NBQB 160 (N.B. Sm. Cl. Ct.).

• Cover