Termination Clause Withstands Court Scrutiny
“Le CFT peut également résilier la présente entente pour tout autre motif en donnant à l`employé(e) un préavis de quinze (15) jours ou le préavis minimum prescript par la Lois ur les norms d`employ, ou en lui versant une indemnité salariale égale au salaire qu`elle aurait droit de recevoir pendant la période de préavis…”
The motion judge translated the words “ou le préavis minimum prescript par la Lois ur les norms d’emploi” to “or the minimum prescribed by the Employment Standards Act.” The appellants argued that this translation was wrong and should instead read: “or the minimum notice required under the Employment Standards Act” [emphasis added]. As the argument goes, the inaccurate translation led the motion judge to find that the termination clause did not amount to a contracting out of the minimum standards in the ESA and was therefore valid. The appellant argued that, when translated accurately, the termination clause amounts to an attempt to contract out of the minimum standards set out by the ESA, rendering the clause void.
When read properly, the appellants argued that the termination clause suggests that the employee is only entitled to the minimum notice requirements prescribed in the ESA, not inclusive of severance and benefits. The minimum standards prescribed by the ESA cannot be contracted out of. A clause which attempts to do so is invalid and can be struck down by the courts, entitling the wrongfully terminated employee to reasonable notice under the common-law—which is typically much more generous. In this case, however, the Court of Appeal adopted the reasoning of the motion judge. The Court of Appeal agreed that, although the motion judge’s translation was inaccurate, his reasons suggested that he was apprised of the issue raised by the appellant. In his reasons, the motion judge made clear that he interpreted the contract properly and with reference to the position of the parties and the circumstances surrounding the execution of the contract. After conducting an interpretation of the termination clause, the motion judge found that it was not reasonable to conclude that the parties intended to contract out of the ESA. The Court of Appeal found insufficient reason to interfere with the motion judge’s decision, especially given the deference owed to a motion judge’s interpretation of a contract.
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