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According to Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC),  1 S.C.R. 986, 7 O.R. (3d) 480, the courts concluded that “[a]s a matter of law, if an employer wishes an employee to contract out of rights that accrue at common law, the words of limitation must be clear and the significance of the provision must be made clear”.
Similarly, in the Machtinger case, the evidence did not support that the employee knew at the beginning of her employment what her entitlements would be at the end of her employment. The wording of the termination clause was ambiguous and should be resolved in the employees favour.
In order for the employer to have been successful in its argument to exclude the common law notice period, the Court stated that the language should have been clearer and have stated, for example:
Movati Athletic Inc. may terminate your employment without cause at any time during the term of your employment upon providing you with notice or pay in lieu of notice, and severance, if applicable, only pursuant to the Employment Standards Act, 2000 and subject to the continuation of your group benefits coverage, if applicable, only for the minimum period required by the Employment Standards Act, 2000 as amended from time to time.
The use of the word “only” would further clarify to the prospective employee that she was only entitled to a notice based upon the ESA.
In assessing the reasonable notice according to the common law, the Courts have relied upon the factors set out in Bardal v. Globe & Mail Ltd. , O.J. No. 149 (Ont. H.C.J.):
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.
Based upon all the relevant factors in this case, that being the plaintiff’s age, length of service the availability of other similar employment opportunities as well as her ability to secure alternative work and mitigate her damages, the Court decided to provide the employee three months of salary in lieu of reasonable notice period in Bergeron. The employee was also awarded her bonus and benefits based on her contract and loss of value of employment benefits during her reasonable notice period.
Before signing an employment contract, it is advisable to review the contract with a lawyer so you better understand the terms and conditions of your employment, especially upon termination. Often, employers will provide or attempt to provide the minimum requirements according to the ESA, and not realize that it is poorly written and will be considered unenforceable. In that case, many employees would therefore be entitled to a longer notice period according to the common law and should contact a lawyer should a termination occur to fight for these entitlements.
If you have been offered an employment contract to sign, or have been recently terminated, contact Monhouse Law today for a free 30 minute phone consultation to determine your options.
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