Employment contracts, terminations, severance, and workplace matters — advised on with candour for employees considering their options and employers protecting their operations.
The single most misunderstood concept in Canadian employment law is the notion that there is a fixed formula for severance. There is not. The statutory minimums under the Employment Standards Act, 2000 are a floor, not a ceiling. The common-law reasonable-notice period — which is almost always larger than the statutory minimum — is determined by factors including length of service, age, position, and the availability of similar employment.
Avion Law advises both employees and employers on the full range of workplace matters. We review severance offers before they are accepted, negotiate improvements to those offers, draft employment contracts that will actually be enforceable, and advise employers on the documentation required to manage performance and terminations defensibly. Employment is a domain where the party with better documentation usually prevails — and documentation, almost always, is built in advance.
Review of termination packages, assessment of common-law reasonable notice, and negotiation of improved severance — for employees who have been terminated without cause or for alleged cause.
Drafting and review of employment contracts for employers and executives, including enforceable termination clauses, restrictive covenants within the limits recognized by Ontario courts, and compensation provisions.
Advice to employees facing a unilateral change to fundamental terms — compensation cuts, material demotions, hostile work environments — and advice to employers on what changes they can and cannot implement.
Preparation of workplace policies required by Ontario law, including Workplace Violence and Harassment, Accessibility, and Disconnecting from Work policies.
Advice on discrimination, harassment, and accommodation under the Human Rights Code. Applications to the Human Rights Tribunal of Ontario and defence of the same.
Advice to departing executives on separation agreements, bonus and stock entitlements on termination, and the enforceability of non-competition and non-solicitation clauses.
Employment in Ontario is governed by a combination of statute and common law, and the two are not always aligned. The Employment Standards Act, 2000 sets minimum entitlements on termination — typically one week's pay per year of service up to eight weeks — but the common law of wrongful dismissal imposes a separate and often much larger obligation of reasonable notice. An employer that pays only the statutory minimum almost always underpays.
"The action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship in the absence of just cause." Honda Canada Inc. v. Keays, 2008 SCC 39, para. 50
The reasonable-notice analysis was articulated in Bardal v. Globe & Mail Ltd. and has been refined in every decade since. The Bardal factors — length of service, age, character of employment, and availability of similar employment — remain the foundation of the analysis. In recent years, the Ontario courts have repeatedly reminded employers that poorly drafted termination clauses will not displace the common-law right to reasonable notice, and that even a single invalid provision in the employment contract may invalidate the entire termination clause (Waksdale v. Swegon North America Inc., 2020 ONCA 391).
Additional damages are available where an employer has breached the duty of good faith in the manner of dismissal — the Wallace damages, now reformulated as Honda damages, which compensate for mental distress flowing from bad-faith conduct at termination.
Workplace discrimination and harassment are governed by the Human Rights Code, with jurisdiction in the Human Rights Tribunal of Ontario. The Code imposes a duty to accommodate to the point of undue hardship on the basis of protected grounds including disability, family status, and religion.