David A. Whitten, Partner

David Whitten - Toronto Employment Lawyer - Whitten & Lublin

David A. Whitten, Partner


Globe and Mail - Best Law Firms in Canada - Whitten & Lublin Employment Lawyers
Lexpert 2021

David A. Whitten is a highly sought after lawyer with expertise in employment law and is a senior partner at Whitten & Lublin, a Toronto-based employment law firm focussing on the strategic resolution of complex workplace issues and challenges for both employers and employees. David specializes in advising clients on constructive dismissal in the workplace.

What sets David A. Whitten apart is his abiding belief in fairness. He holds that the most productive and successful work environments are those in which both the employer and employees are treated with respect. This ethical standard makes him a compelling advocate in negotiations or in court and an opponent to be reckoned with.

David also places great stock in flexibility and finding solutions through negotiated resolution. However, he is also a tenacious litigator. He has appeared before all levels of court in Ontario and a range of tribunals, including: The Ontario Labour Relations BoardOntario Human Rights TribunalThe Workplace Safety and Insurance Board and Workplace Safety and Insurance Appeals Tribunal.

For private and public sector employers, he has provided knowledgeable counsel on a broad range of issues, including: constructive dismissal, workplace safety, and insurance, employment standards, human rights, hiring, terminations, involuntary and voluntary buyouts, and common law obligations in Canada.

While David advises employees at all levels, he focusses on issues specific to the C-Suite. He is broadly experienced at crafting and negotiating executive employment and compensation agreements; severance packages; non-competition and non-solicitation contracts, as well as agreements related to post-employment obligations; incentive plans stock options; bonus compensation, and fiduciary obligations. David has developed a specialized approach to dealing with constructive dismissal in the executive suite that has assisted his clients to recover millions of dollars in severance.

David also has a proven talent for addressing commonly unforeseen downside issues when drafting and negotiating executive employment agreements. He has earned a reputation for defending business leaders embroiled in conflicts with their Board of Directors or other executives, or who face leadership issues, or who are facing performance-related criticism from shareholders.

In 2013, Lexpert named David A. Whitten as a litigator to watch in its US Guide to Leading Cross-border Lawyers. Since 2015, David has been named annually by Lexpert as a repeatedly recommended lawyer culminating in him being designated a Leading Practitioner for both Employers and Employees. He also co-authored “HR Manager’s Guide to Independent Contractors in the Workplace” which was published by Carswell.

David also places great stock in flexibility and finding solutions through negotiated resolution. However, he is also a tenacious litigator. He has appeared before all levels of court in Ontario and a range of tribunals, including: The Ontario Labour Relations BoardOntario Human Rights TribunalThe Workplace Safety and Insurance Board and Workplace Safety and Insurance Appeals Tribunal. Most recently, David was lead counsel in the seminal case Rahman v. Cannon Design Architecture Inc., 2021 ONSC 5961 where he successfully defended an employer’s severance provision despite overwhelming odds.

David’s expertise and straight talk are widely recognized in Toronto media circles. His viewpoint has been sought by The Toronto StarThe Globe and Mail and The National Post, and he has commentated on employment issues in interviews with CBC Radio One’s, Here and Now, and News Talk 1010. He is also frequently asked to speak on employment issues by The Human Resources Professional Association, The Canadian Payroll Association and the Certified General Accountants Association of Canada. He is also the chair of the Human Resources Professionals Association (HRPA) Annual Law Conference.

David is also co-author of Carswell’s authoritative text on independent contractors in the workplace, “HR Manager’s Guide to Independent Contractors in the Workplace”.

David graduated from The University of Toronto with a Bachelor of Arts Degree (political science). He completed his law degree at The University of Windsor in 2001 and was admitted to the Bar of Ontario in 2002. He completed the certificate program in Intensive Trial Advocacy offered through Osgoode Hall in 2005. Memberships include: The Advocates’ Society, The Canadian Bar Association, The Royal Canadian Legion and The Cambridge Club.

Click on the links below to view articles or listen to shows featuring David A. Whitten’s commentary:

  • David Whitten’s interview for CTV news regarding sexual misconduct allegations in the workplace, May 2018
  • David Whitten’s interview regarding overtime exploitation without overtime pay, GlobalNews 16×9
  • David Whitten on News1010 with John Moore sharing Naseem’s story, Feb 2016
  • David Whitten on Metro Morning regarding the closure of 16 Goodwill stores, 2016: Short Version | Full Version
  • Is medical marijuana acceptable in the workplace?, CBCNews, 2015
  • Moonlighting Employees: Don’t lose the stars for the clouds, HR This Week, 2015
  • Harassment allegations a gold mine for third party investigators, (Ottawa AM1310 )
  • Employer liability with Ebola panic, HR Reporter
  • Tips for employers and employees when sexual harassment occurs, CBC.
  • How employers should prepare for medical marijuana use in the workplace (Interview, CBC, Ontario Today)
  • Medical marijuana in the workplace (CHCH, Square Off)
  • Unpaid overtime work – Interview, CBC – Ontario Today
  • Calling for changes to employment standards legislation to provide guidance to employers and employees with respect to sick leave policies
  • Retirement incentives must be handled with care, HR Reporter
  • Unpaid internships a costly risk, Canadian Employment Law Today
  • Holiday parties and corporate liability-interview (CHCH, Square Off )
  • Holiday parties and employer liability-interview (Moose FM)
  • Working Past 65 – Interview (CBC Radio – Ontario Today)
  • David Whitten on The Scott Thompson Show regarding his recent addressing at the House of Commons Standing Committee of Human Resources where he called for a broad-based action by the Government and business community to reduce barriers to working longer and to motivate older workers to postpone retirement past 65. (CHML)
  • How to Motivate Older Workers to Postpone their Retirement (News 570, The Gary Doyle Show)
  • Rouge requires new flight attendants to pay for their own training (News 570)
  • Intern abuse carries stiff penalties (24Hours)
  • RBC’s temporary workers program with David Whitten (London The Pulse Radio)
  • David Whitten on the Gary Doyle News on outsourced employees forced to train their replacement in the RBC (570 News)
  • Executive Bonuses in the Public Sector (CBC Radio)
  • What to watch for before signing an employment contract (The Globe and Mail)
  • Bullying: the employee perspective (The Toronto Star)
  • Age discrimination at the forefront (Canadian Employment Law Today)
  • Proposed changes to EI and repercussions for severance calculations (The Current on CBC Radio One)
  • Ottawa’s ‘platinum’ severance packages lavish and unnecessary, lawyer says (The National Post)
  • New demographic reality a challenge (The Financial Post)
  • Older employees can protect themselves by making age an issue; lawyer (The Toronto Star)
  • Workplace bullying: A clear and present danger (Canadian Employment Law Today)
  • Deconstructing random drug, alcohol testing (Canadian HR Reporter)
  • Toronto’s employee buyout ‘a disaster in the making’ (The Financial Post)
  • City of Toronto employee buyout ‘a disaster in the making’ (The National Post)
  • City buyout puts morale ‘in the toilet’ (The Toronto Star)
  • Booting Bartz a case of how not to fire an executive (The Globe and Mail)

The following are David’s upcoming and most recent speaking engagements:

  • Engaging Experience: Opportunities for Older Persons in the Workforce – David Whitten has appeared as an expert before the Committee in Ottawa for The House of Commons’ Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities on June 4, 2013 where he shared his views on its study, “Engaging Experience: Opportunities for Older Persons in the Workforce”.
  • Co-panelist: Termination Strategies – The Canadian Payroll Association 30th Annual Conference and Trade Show, July 2-5, 2012, Ottawa Convention Centre
  • Social Networking Websites and Employee Conduct – 2012 Human Resources Professional Association (HRPA) Annual Conference – February 1-3, 2012
  • Advanced Terminations: How to Save Money in Challenging Times – 2011 HRPA Annual Conference. – February
  • Advanced Terminations: Getting it Right – 2010 CGA Controller’s Congress – March
  • Terminations and Employment Law: Managing the Legal Risk – 2010 Canadian Payroll Association (CPA) Conference – July 2010
  • Employment and Independent Contractor: Where to draw the line – 2010 CPA Conference – July 2010

David A. Whitten can be reached at david@whittenlublin.com.

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