Canadian Employment Law Today

August 14, 2019

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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How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL ©2019 HAB Press, a subsidiary of Key Media 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, mechani- cal, 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#: 70318 4911 RT0001 Emplo y ment Law Today Canadian Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE HAB PRESS, A SUBSIDIARY OF KEY MEDIA 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: Copy editor: Patricia Cancilla Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. Architect's notice entitlement torn down THIS EDITION of You Make the Call features a dispute over the validity of termination provision drawn up to meet an employee's request to reduce his hours. John Ariss was an architect hired in February 1986 by Dominik ompson Mallette (DTM), an architecture firm in Kingston, Ont. He worked full-time for the company for 16 years until February 2002, when NORR Limited Architects & Engineers bought the business. As part of the sale, DTM terminated Ariss' employment effective Sept. 6, 2002, and NORR immediately offered him a job. Ariss accepted the offer and signed the agreement that acknowledged he had read, understood and accepted the offer and a termination policy that limited notice of termination and severance entitlements to the minimum statutory provisions under the Ontario Employment Standards Act, 2000 (ESA). Nearly four years later, in June 2006, NORR granted a request from Ariss to increase his hours to 40 from 35 hours per week. A new employment agreement was drawn up for Ariss to sign, including a termination policy for without-cause termination that stated: "NORR will provide notice of termination in writing to the employee in accordance with the Ontario Employment Standards Act" — one week for every year of service up to a maximum of eight weeks. It also provided for severance pay in accordance with the ESA. Ariss signed and acknowledged the clause and his waiver of common law notice entitlement. Ariss worked under these conditions for another six-plus years. In early 2013, he asked about the possibility of transitioning from full-time to part-time work and NORR agreed in July. However, NORR made it clear that it would only accept the part-time arrangement if Ariss resigned from his full-time position and signed a new employment agreement that waived his previous years of service and the notice and severance entitlements that accompanied them. Ariss signed the new employment offer that included the termination provision limiting notice to the minimum required under the ESA and Ariss' acknowledgment that "notice and severance for my past employment will not form part of the new terms of employment." Ariss' job title and pay level didn't change, but his hours were reduced to 24 per week. He worked under this arrangement for about two-and-one-half years until Jan. 26, 2016, when NORR terminated his employment effective Feb. 19. e company provided 3.5 weeks' notice based on his service under the most recent employment agreement — with no severance pay — plus continuation of benefits for two weeks. Ariss sued for wrongful dismissal, claiming the 2013 employment agreement didn't specifically exclude common law notice. Emplo y ment Law Today Canadian YOU MAKE THE CALL Was Ariss entitled to common law reasonable notice of termination? OR Was his entitlement limited to ESA minimums? IF YOU SAID Ariss was entitled only to the ESA minimums, you're right — though it turned out to be a little more than NORR had intended. On a motion for summary judgment, the motion judge found that Ariss did not re- sign from his employment in 2013 because it would be "an entirely artificial attempt to create an interruption in employment when in fact there was none." e reality was that Ariss transitioned to part-time employment from full-time employment, but his job and employer remained the same. As a result, Ariss' service with NORR and the predeces- sor employer DTM went back to 1986 — 30 years at the time of his dismissal. e motion judge also found that since there was no interruption in service, the 2013 agreement was an amendment to the exist- ing terms of Ariss' employment, including the 2006 termination provision. In the 2006 agreement, Ariss waived his right to common law notice, so he was entitled to eight weeks' notice of termination and 26 weeks' severance pay under the ESA, said the motion judge. Ariss appealed the decision, but the Ontario Court of Appeal agreed with the motion judge that the 2013 agreement was an attempt by NORR to get out of Ariss' entitlement to termination and severance pay under the ESA based on Ariss' full service with the company. e appeal court found that neither of the parties had intended for Ariss to resign his employment and it wasn't legal to contract out of the ESA, so the 2013 agreement wasn't valid. is made the 2006 agreement and its termination provision in effect, which outlined the specific minimum notice requirements under the ESA, provided for severance pay and included Ariss' "clear and unequivocal" waiver of his common law notice entitlement, said the appeal court in dismissing the appeal. For more information see: • Ariss v. NORR Limited Architects & Engi- neers, 2019 ONCA 449 (Ont. C.A.).

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