Canadian Employment Law Today

June 30, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 79990 3547 RC-0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call fea- tures three Alberta public school employees who challenged their termination provisions after they were dismissed. The Parkland School Division is a school board that oversees public schools in the region around Stony Plain, Alta. The school board had a standard form employment contract for all employees that included a termination provi - sion that stated: "This contract may be termi- nated by the employee by giving the board 30 days or more prior written notice, and by the board upon giving the employee 60 days or more written notice." The provision didn't refer directly to the Alberta Employment Standards Code. On June 2, 2014, the school board provided working notice of termination to three infor - mation technology employees, with the effec- tive date of termination Aug. 2. The termina- tions were part of a restructuring program and were without cause. Two of the employees had nearly 15 years of service and one was just short of 10 years. The employees weren't required to work during the 60-day notice period but were paid normally. The three terminated employees sued for wrongful dismissal, claiming they were en - titled to common law reasonable notice. They argued that the "60 days or more" phrase in the termination clause of their employment con- tracts created a minimum notice period of 60 days, but the clause wasn't clear under what circumstances an employee would get 60 days and what circumstances would trigger a notice period greater than that. Since the language of the clause wasn't clear on the ceiling for notice entitlement, it should be taken to refer to com - mon law notice based on length of service, they argued. The three employees also claimed that the termination clause didn't specifically limit their entitlement to the legislative minimum and didn't even refer to the Employment Stan - dards Code at all. YOU MAKE THE CALL Were the employees entitled to common law reasonable notice? OR Did the termination clause in their contracts establish their notice entitlement? IF YOU SAID the termination clause clearly es- tablished the notice entitlement, you're right. The court noted that the literal meaning must be given to contract language to show the in- tention of the parties. While the terminated employees argued that there was ambiguity in the termination clause's notice entitlement, the court disagreed. The court found that if the contract only con - tained the words "60 days," then it would be clear that the notice period would have been fixed at that amount. This would potentially violate the legislative minimums if an em- ployee's service time reached a certain length. However, the words "or more" indicated that the employee could receive more than that, so 60 days was clearly the floor for notice of termi- nation, said the court. The court noted that in order for a contract to be ambiguous, the language would have to be "reasonably susceptible" to more than one meaning. In the school board's contracts, a plain reading of the termination provision yielded just one meaning — employees would receive 60 days' notice or something greater. This allowed the school board to comply with the minimum notice required for employees with 10 years of service — the legislative mini - mum entitlement for employees with 10 years of service is eight weeks or 56 days — and al- lowed it to pay a greater sum depending on the circumstances, said the court, noting that any vagueness towards the exact notice period didn't take away from the clarity that the em- ployees would receive greater than the legisla- tive minimum. In addition, the contracts were the same for all employees with the same meaning, and they also provided for a minimum amount of notice for employees to resign with the flexibility to provide more if they so choose. "When applying an ordinary and natural meaning to 'or more' I do not conclude that it means 'reasonable notice,'" said the court. "I do not find it plausible that the parties would have intended that they would have had to determine whether the common law reason - able notice exceeded the minimum notice and then to provide common law reasonable notice." The court also found that the common law right to reasonable notice existed indepen - dent of the code and such entitlement is only implied if the contract is silent or ambiguous on notice entitlement. Since the termination provision wasn't silent or ambiguous on no- tice entitlement, it was enforceable as long as it complied with the minimum requirements, which it did. For more information, see: • Bryant v. Parkland School Division, 2021 ABQB 391 (Alta. Q.B.). 60 days' notice — floor or ceiling? The workers argued that the clause was vague on when more than 60 days' notice was warranted.

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