Canadian Employment Law Today

the statutory minimum in the instance, but would have provided for less under certain circumstances. More recently, in Wright v. Young & Rubicam Group of Cos., the Ontar- io Superior Court not only again cited Shore approvingly, but further added that "there is no compelling reason to uphold a ter- mination clause which the draftsman may reasonably be understood to have known was not enforceable either at all or under certain circumstances." e decision in Wright continues to gen- erate considerable debate, both within the employment bar and amongst human re- sources professionals. Yet, as can be seen from the above, it hardly introduces any novel point of law. Rather, it simply applies and further refi nes established principles enunciated by higher courts before it — that statutory minimum standards must be strictly enforced, so as to better serve the purpose of employment standards legisla- tion in protecting employees. Plainly put, the decision in Wright builds upon estab- lished employment law principles in order to send a clear message to employers: if you wish to include a termination clause in the contract of employment, then you better make sure it complies with the statutory minimums at all times and under all cir- cumstances. Period! Although there are certainly cases where courts took a diff ering view, there are good reasons to suggest that these decisions ought not to be relied upon. Most notably, in John A. Ford & Associates Inc. v. Keegan and in Shapka v. Interbase Consultants Ltd., the termination clause issue was framed as a matter of freedom of contract – that the parties are free to agree between them- selves upon an appropriate amount of notice upon dismissal. Yet, in Keegan, the court did not specifi cally address s. 5.(1) of Ontario's Employment Standards Act, 2000, which states that any attempt to con- tract out of or waive an employment stan- dard is void. Meanwhile, in Shapka, the Deputy Judge did not place proper empha- sis on the fact that employees are inherently disadvantaged when negotiating the terms of work with their employers. is is exactly the type of relative imbalance of power that employment standards legislation seeks to address. It is also notable that the court in Keegan held that the plaintiff was not an employee, which ought itself to have de- termined his entitlement to additional no- tice. Furthermore, Shapka is a decision of the Small Claims Court, and therefore is of little precedential value. Ultimately, employers and their coun- sel may chafe against the notion that an otherwise enforceable termination clause might be held unenforceable on the ba- sis that, one day, and under a diff erent set of circumstances, it may run afoul of the statutory minimums. Yet, employers are best served to remember that provincial employment standards legislation will be broadly applied, so as to better serve their remedial purpose in protecting the rights of employees. Indeed, all aspects of the em- ployer-employee relationship governed by employment standards legislation ought to be understood in this light. When placed in its proper context, the issue of whether ter- mination clauses must meet the statutory minimum standards, at all times and under all circumstances, is therefore perhaps not as signifi cant as it appears. Nevertheless, debate in this regard will likely continue apace, at least until such time as there is a defi nitive ruling from a higher court. For more information see: • Machtinger v. HOJ Industries Ltd., 1992 CarswellOnt 892 (S.C.C.). • Shore v. Ladner Downs, 1998 CarswellBC 973 (B.C. C.A.). • Slepenkova v. Ivanov, 2007 CarswellOnt 9912 (Ont. S.C.J.). • Wright v. Young & Rubicam Group of Cos., 2011 CarswellOnt 10754 (Ont. S.C.J.). • John A. Ford & Associates Inc. v. Keegan, 2015 CarswellOnt 4418 (Ont. S.C.J.). • Shapka v. Interbase Consultants Ltd. (2014), (Ont. S.C.J. Sm. Cl.) Canadian Employment Law Today | 11 Cases and Trends Compliance with ESA at all times « from TIMING IS on page 3 ABOUT THE AUTHOR ANTHONY LUNGU Anthony Lungu is an associate lawyer at Marvin A. Goroden- sky Professional Corporation. Anthony practices all areas of employment law, with a focus on wrongful/unjust dismissal, human rights, workplace harassment, occupational health and safety and employment standards issues. He can be reached at anthony@dismissed.ca. expected date of return if reasonably deter- minable. ey are also generally entitled to know when the doctor was consulted and whether the employee was under the doc- tor's care during her absence. In Providence Care, Mental Health Ser- vices, the employee's medical note, written on a prescription slip, stated, " e above patient was absent from work for medi- cal reasons." e arbitrator stated that "al- though most employers generally accept a simple 'certifi cate' like the one submitted by the grievor in this case, they are not obliged to do so." He found the slip was patently de- fi cient and that the employer was entitled to a description of the general nature of the illness or injury, without technical medical details, diagnosis or symptoms. While an employer usually will not be en- titled in the normal course to insist upon the particulars of a diagnosis or treatment, inqui- ries regarding the nature of the employee's ill- ness and type of treatment recommended are seen as being less invasive and are permissible where necessary for the employer to man- age the workplace and to accommodate any medical limitations or restrictions. Whether the information provided is suf- fi cient will depend on the particular facts of each case. In some situations, the employer may be entitled to further information. An employer is entitled to make follow-up re- quests for further medical information. ere is a continuum of appropriate medical infor- mation in which the obligation to provide more detailed medical information will in- crease, for example, as the length of the ab- sence increases. It is generally recognized that a brief absence from work due to a common cold or fl u will not justify the same degree of detailed medical information as may be ap- propriate in a case of a lengthy absence for a serious medical condition, particularly one which may involve workplace accommoda- tions when the employee returns to work. Cases of prospective medical leave dif- fer from cases when the employer seeks to validate, after the fact, short-term period of absence due to illness. Requests for partial and extended medical leaves present unique circumstances which require the employer on a routine basis to consider a broader spectrum of medical information than may be required for standard cases of sick leave. For more information see: • Winnipeg Teachers' Assn., Local 1 v. Win- nipeg School Division No. 1, 1975 Car- swellMan 65 (S.C.C.). • Durham Catholic District School Board v. O.E.C.T.A., 1999 CarswellOnt 4560 (Ont. Arb.). • Providence Care, Mental Health Services and OPSEU, Local 431 (Winton), Re, 2011 CarswellOnt 15998 (Ont. Arb.). Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or bkenny@ mlt.com. « from ASK AN EXPERT on page 2

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