Canadian Employment Law Today

CELT May 15 2013.qxp:celt 467.qxd 13-05-02 9:49 AM Page 6 May 15, 2013 Ruling suggests cases raise issue of national or public importance ...continued from page 1 overtime hours worked by class members." The Supreme Court Act requires "public importance" to exist for an appeal to be successful, so the Supreme Court's ruling on these class actions suggests they raise an issue of "national or public importance," perhaps because the employers are federally regulated under the Canada Labour Code. As to the merits of these actions, we will have to watch how the cases unfold and, despite the national or public importance of the issue, whether the policies and practices of the banks stand up under judicial scrutiny or falter at what may be considered a great win in light of the current controversy over the banks employee practices. Impact of decision on employers Even though the Supreme Court of Canada has not determined the merits of the actions and has merely permitted them to proceed as class actions, employers are now more vulnerable to individual and class action claims for overtime. It is critical for employers to have policies in place indicating in what circumstances, if any, overtime will be paid. Extreme care should be exercised to ensure policies strictly comply with the overtime provisions of the legislation the employers are governed by. Strict adherence to these policies is also required, failing which employee claims for payment for overtime work could succeed. stances of compensation for overtime work. CELT For more information see: ■Fulawka v. Bank of Nova Scotia, 2013 CarswellOnt 3152 (S.C.C.). ■Fresco v. Canadian Imperial Bank of Commerce, 2013 CarswellOnt 3154 (S.C.C.). ABOUT THE AUTHOR Impact of decision on employees Employees should not conclude by this ruling that there is merit to all claims by employees for overtime pay, nor that their claims would necessarily receive certification as a class action. Limitation periods exist that may limit claims to two years from the last overtime worked. If the last overtime worked was two years ago, the otherwise valid claim may be lost. Perhaps these two decisions are a signal of the court's willingness to provide more protection to employees in circum- Ronald S. Minken Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique in Markham, Ont. He can be contacted by visiting www.MinkenEmploymentLawyers.ca. Ronald gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in this article. Minimum standards must be maintained throughout term ...continued from page 3 proferentum doctrine. In Wright, Justice Low opined: "there is, in my view, no particular difficulty in fashioning a termination clause that does not violate…the minimum standards imposed by the (ESA)…." In Stevens, Justice Leach granted a summary judgment, stating: " employers should be provided with incentive to ensure that their employment contracts comply with all aspects of the employment standards legislation, including provision of adequate notice…and benefit continuation." Taken together, these pronouncements serve as a loud message to employers: "Your employment contracts will be invariably struck down if they fail to satisfy the minimum employment standards at any point in an employment relationship." Notably, 6 if the termination provision is silent about the benefits, an employer's voluntary provision of benefits during the statutory notice is of no consequence to its liability, because it would not alter the fact that the employment contract was void ab initio for violating the ESA. CarswellOnt 16792 (Ont. S.C.J.). ■Wright v. Young & Rubicam Group of Cos., 2011 CarswellOnt 10754 (Ont. S.C.J.). ■ Slepenkova v. Ivanov, 2009 CarswellOnt 3749 (Ont. C.A.). Lesson for employers For employers, these decisions underscore the importance of precise and explicit language in employment contracts, especially when drafting termination provisions. Properly drafted severance clauses may substantially reduce employers' liability for damages and shield them from the dismissed employee's lawyers' creative arguments. CELT For more information see: ■Stevens v. Sifton Properties Ltd., 2012 Nikolay Y. Chsherbinin Nikolay Y. Chsherbinin is an employment lawyer at Chsherbinin Litigation in Toronto and the author of The Law of Inducement in Canadian Employment Law published by Carswell, a Thomson Reuters business. He can be reached at (416) 907-2587, nc@nclaw.ca or by visiting www.nclaw.ca. Published by Canadian HR Reporter, a Thomson Reuters business 2013

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