Canadian Employment Law Today

May 24, 2017

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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©2017 Thomson Reuters Canada 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. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 12 YOU MAKE THE CALL Did Premier owe Radikov payment for the balance of the six-month contract? OR Did the company terminate the contract according to the early termination clause? IF YOU SAID the company owed Radikov for the balance of the contract, you're cor- rect. e court found the contract gave Pre- mier the option to terminate the contract early without cause by providing two weeks' written notice, but Premier failed to give such notice. e court also found that when Premier told Radikov to take his vacation early on Aug. 14, and then didn't have any work for him af- ter that, it was essentially a layoff . Since the contract didn't provide for layoff s, Premier breached the contract, said the court. "Premier could have given two weeks' written notice of termination but for reasons unknown, did not do so," said the court. "It cannot avail itself of a notice provision it did not invoke as written." e court also found there was nothing in the contract that relieved it of its obligation to pay Radikov for the balance of the contract`s term if there was insuffi cient work for him. Regardless of the circumstances, the only way the contract could be terminated early was to provide two weeks' notice. e court determined Premier breached the contract and was on the hook for the balance of the contract's term. Premier was ordered to pay Radikov $15,798.71 plus interest, as well as a $4,500 representation fee. "Premier played hardball with Mr. Ra- dikov. It laid him off without terminating the contract, then claimed at almost the end of the fi xed term that it had terminated the contract previously, then denied the termi- nation in the pleading, and at one point pro- posed to allege in the alternative that it had terminated the contract for cause, then later abandoned that proposal," the court said. "In my view Premier's treatment of Mr. Radikov is anything but a model of good faith perfor- mance of contractual relations." For more information see: •Radikov v. Premier Project Consultants Ltd., 2016 CarswellOnt 19466 (Ont. S.C.J.). Fixed-term contract ends on bad terms THIS INSTALMENT of You Make the Call features a contract that was terminated not long before its fi xed term elapsed. Martin Radikov signed a six-month con- sulting contract on May 6, 2015, with Pre- mier Project Consultants, an engineering company based in Kitchener, Ont. e term of the contract was six months and Premier agreed to pay Radikov $37,500 plus HST, to be paid bi-weekly. Radikov was to work regular offi ce hours at Premier's offi ces and be supervised by Premier's president. e consulting agreement also had an early termination clause that allowed Pre- mier to terminate it by providing Radikov "with two weeks advance written notice." Radikov worked regular hours for Pre- mier for more than three months. At the end of July, he requested a two-week vaca- tion to be taken from Sept. 16 to 30. Since the consulting agreement didn't provide for any vacation, Radikov assumed his va- cation, if granted, would be unpaid. Pre- mier's management verbally approved the request. Two weeks after Radikov's vacation re- quest, on Aug. 14, he was called into a meet- ing with the president and other members of management. ey told him the presi- dent was going to be away until Sept. 21, so he should take his vacation immediately. Radikov was confused, as there were three design projects underway at the time, in- cluding one that was urgent. ree days later, Radikov emailed man- agement asking about the "forced vacation." Premier's president responded by reiterat- ing he would be out of the offi ce until the week of Sept. 21 and he would reach out to partners in their projects for feedback. He also told Radikov "I would not stand in your way if another opportunity came up and would wish you all the best in your future endeavours." e president concluded with a request that Radikov "touch base" when he returned and they would "assess the situ- ation." Radikov took his vacation as originally planned on Sept. 16. After he returned on Oct. 2, he contacted Premier management about his status. He was told that "nothing has changed in regards to work available for you." Two weeks later Radikov inquired again and noted that his contract didn't contain a provision for vacations and Premier could terminate it. Premier responded by saying there was no work for him and suggested he look for other work as there was no indica- tion things were going to change. Radikov proceeded to submit his last for invoices for the remainder of the six-month contract. Premier responded with the statement: " e contract was terminated as per the agreement so no additional monies are owing."

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