The Supreme Court of Canada won’t hear an appeal of the Ontario Court of Appeal’s June 6, 2020 Waksdale decision.

The Waksdale case had a profound impact upon the landscape of employment law in Ontario. Because of Waksdale, employees have greater opportunities to obtain larger payments upon dismissal. And employers are scrambling to update their employment contracts.

In the aftermath of Waksdale, it has become more important than ever for both employees and employers to get their contracts reviewed by an employment lawyer.

The Impact of Waksdale

It is common for employers to divide the termination clause into separate paragraphs dealing with dismissals “for cause” where there is misconduct by the employee and dismissals “without cause” where there has been no misconduct.

Typically, contracts say the employee gets “no notice” where there is “cause” for dismissal. And they say that the employee gets only the minimum notice required by employment standards if the dismissal is “without cause.”

Waksdale has clarified that an error in drafting found within a “for cause” paragraph can be used to invalidate the entire termination provision, even if the “without cause” paragraph is otherwise perfectly compliant with employment standards.

By denying leave to appeal Waksdale, the Supreme Court of Canada has assured these rules established by the case will continue to apply for the foreseeable future.

Get Advice

A dismissed employee needs to speak to an employment lawyer to get an opinion about the validity of the language in their contract. Many employees will now be entitled to more than they might think from only a superficial reading of their employment agreement. Employers need to engage an employment lawyer to revise their employment contracts. Previously valid termination provisions are now at risk of being invalidated because of the implications of Waksdale.

Author: Ben Hahn