Employment Law


According to employment lawyer Stuart Rudner, writing at www.hrreporter.com and elsewhere, the most significant employment law decision of 2016 was Oudin v. Centre Francophone de Toronto, 2016 ONCA 514 on the common-sense interpretation of termination clauses.

Rudner explains: “No issue demonstrates the unpredictability of employment law in recent years better than the enforceability of termination clauses in employment contracts. Many employers attempt to use such clauses to displace an employee’s common law right to reasonable notice of dismissal. However, in recent years, the issue has been litigated repeatedly with results that have been less than predictable.

“In many cases, courts have seized on nominal or technical deficiencies to invalidate such clauses and help employees receive more severance. Seemingly well-drafted clauses which clearly demonstrated the parties’ intention to displace the common law right to reasonable notice have been deemed to be void. And in many cases, the results continued to defy logic and remain unpredictable.

“However, in 2016, the Court of Appeal of Ontario chose to adopt a contractual certainty approach to this issue, finding that where the intentions of the parties are clear, termination clauses should be upheld unless there is an actual breach of employment standards legislation.”

Leave to appeal this decision was denied by the Supreme Court of Canada in February 2017.


In October 2016, in Attorney General of Québec v. Alliance du personnel professionnel et technique de la santé et des services sociaux, et al., 2016 QCCA 1659, the Québec Court of Appeal upheld a Superior Court decision finding certain sections of Québec’s Pay Equity Act (PEA) were unconstitutional and were not “demonstrably justified” under the Section 1 of the Canadian Charter of Rights and Freedoms or the Québec Charter of Human Rights and Freedoms. The Court ordered the government to remedy this situation in no more than one year.

The Attorney General of Québec was granted leave to appeal by the Supreme Court of Canada regarding ss. 76.3, 76.5 and 103.1 of the Pay Equity Act, R.S.Q., c. 12.001. Those sections were enacted in 2009 under the Act to amend the Pay Equity Act, SQ 2009, c. 9. Summarized by the SCC, “The provisions were challenged, inter alia, by unions representing employees working in predominantly female job classes. They alleged that the sections had the effect of substantially reducing the rights and benefits conferred on them by the Pay Equity Act as enacted in 1996, which, in their view, was contrary to ss. 15 and 52 of the Canadian Charter of Rights and Freedoms and ss. 10, 16, 19, 50.1 and 52 of the Charter of Human Rights and Freedoms.

“Under the 2009 reform, among other things, the jobs concerned were reviewed every five years to determine whether there were changes to them that justified a compensation adjustment, and there were no retroactive payments during the review process.”

The SCC was scheduled to hear the decision in late 2017.

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