“It’s like déjà vu all over again.”
“And it seems like yes it feels like
A brand new day…”
This article is about baseball and music, along with doubt and certainty, but disguised as employment law.
Bear with me, please.
In my September 2016 article on this site regarding the Court of Appeal for Ontario’s decision in Oudin v. Le Centre Francophone de Toronto, Inc., 2016 CarswellOnt 10299, 2016 ONCA 514, I concluded that we know nothing: There are limits to a lawyer’s powers of prediction and understanding — and we should be humble in light of enigmatic court decisions.
Pre-Oudin there was an accepted “rule book” about required language for employees to contract out of their entitlement to common law notice of termination of employment — and to restrict themselves to statutory minimums under the Employment Standards Act, 2000 — without offending the ESA. Some believed the Court in Oudin threw out (or changed) the rule book by requiring less stringent drafting.
Some said it was a “game changer” — like when Bob Dylan went electric or when Jimi Hendrix simply played.
This is no surprise given that Major League Baseball can suddenly (and misguidedly) change long-held rules and musical styles constantly evolve.
After the Supreme Court of Canada denied an application for leave to appeal in early February, I revisited Oudin to see if lawyers now know something about its meaning. Then, voila, the Court of Appeal released a new decision on the same issue in late February (Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158) — but with a different result, and no mention of Oudin.
Do we still know nothing or do we now know something? Is this déjà vu or is it a brand new day? Are we all playing the same game, by the same rules, and whistling the same tune?
I decided to ask some colleagues in the Ontario employment law bar.
According to Daniel Lublin of Whitten & Lublin in Toronto, lead counsel for the successful appellant-employee in Wood, “Oudin was overruled without expressly overruling it as the Court of Appeal here made it clear that ‘intentions are irrelevant’; it’s the language that counts, and this is basically the antithesis to Oudin.”
Similarly, Sean Bawden of Kelly Santini LLP in Ottawa, argues that “nothing can be gleaned from Oudin because it makes no reference to the cases that hold a contrary view of contract interpretation starting from Wright v. The Young and Rubicam Group of Companies (Wunderman), 2011 ONSC 4720.” Bawden is pleased with Wood. He says that “an express endorsement of Wunderman . . . is welcomed. I think it is a great, clear decision.”
Yet, is this a home run or a double?
Andrea Sanche of Ricketts Harris LLP in Toronto cautions that Oudin and Wood teach us that “less may really be more provided an employer has not overtly attempted to contract out of the ESA through a poorly drafted ‘all-inclusive’ clause. A reference to ‘minimum statutory requirements’ will suffice to ensure that the provision is enforceable.”
Does the song remain the same?
According to Daniel Pugen of Torkin Manes LLP in Toronto, in Wood, the “all inclusive” clause, unfortunately, for the employer, omitted benefits. The court could conclude that the clause, on its face, was an attempt to contract out of the ESA. Of course, that does lead to the interesting practical implication that a termination clause that is more sparse (i.e., Oudin) could end up being more enforceable than a more “fulsomely worded” clause (i.e., Wood).
This could lead to a greater probability of drafting errors. Mana Khami of Harrison Pensa LLP in London, Ont. states that employers “may also consider adding a ‘saving provision’ to their agreement so that, if all else fails, the termination provision does not (arguably) contravene the ESA. We will have to see whether, and how, the courts will continue to find creative ways to distinguish termination provisions, and hopefully will not leave the rest of us scratching our heads and squinting to see the distinction.”
Echoing this uncertainty, Shaun Bernstein of Tailor Law in Mississauga, Ont. adds, “How courts interpret Oudin now is, frankly, anyone’s guess. The reality is that no two contracts are written the same, so navigating through the nuances is going to keep lawyers’ creativity keenly intact. The arguments that lawyers will be putting forth on both sides will truly re-shape employment law for the 21st century.”
(Given that there are two Daniels and two Seans/Shauns quoted in this article, I am feeling an eerie déjà vu — like back-to-back losses in the ALCS.)
Oscar Strawczynski of Feldman Lawyers in Toronto looks to a brave new world: “Oudin and Wood: It’s case law like this that makes me think we are not going to be replaced by the robots soon; at least as litigators. Maybe the case law would be simpler if the robots drafted the contracts.”
Regardless of who (or what) drafts the contracts, Miriam Anbar of Rodney Employment Law in Thornhill, Ont. hits the right note: “These cases are important reminders that well-drafted agreements are critical.”
So what, if anything, do we know?
1. Oudin is not a solo act. It is part of a duo — or even a quartet — that includes Wood. However, Oudin is not the lead singer. I submit that if the Oudin decision were a drummer, its name would be Pete Best.
2. Shorter may, in fact, be better when drafting: Going into extra innings (i.e., an all-inclusive clause) can be dangerous without a full roster (words like “benefits,” “severance pay,” etc.).
3. Wood is a “brand new day.” Yet, just as the sun rises, and winter turns to spring, the law evolves. Lawyers know this, and as David Crosby sang: “We have all been here before.”
Enjoy the show!
Mitchell Rose is a lawyer, chartered mediator and settlement counsel with Stancer Gossin Rose LLP in Toronto. He will be co-chairing Successful Settlements 2017 for Osgoode Professional Development on March 24. He can be reached at [email protected]