Author Archives: f5admin

On March 4, 2022, James Cameron, Kim Patenaude, and Raphaelle Laframboise-Carignan hosted a virtual conference on “Mental Health in the Time of COVID: Fostering Wellness for Yourself and Your Clients.”The conference started off with an interactive webinar by the Mental Health Commission of Canada. Our lawyers then discussed the unique details of making and dealing with disability accommodation requests and long-term disability benefits applications during COVID-19 pandemic.

Is My Non-Complete Clause Void?

By Simcha Walfish

In Fall 2021, the Government of Ontario introduced the Working for Workers Act, which included a new prohibition on non-compete clauses. The Minister of Labour provided the following rationale:

While these agreements are almost never legally enforceable, employers often use them to intimidate their workers. These agreements generally say that a worker can’t seek opportunities at other companies in the same field for a period of time after they leave their current job, and this might stop many of them pursuing exciting opportunities that would help them grow professionally. This isn’t fair to workers who are eager to advance their careers and this isn’t fair to the thousands of small start-ups we have in Ontario who are starved for talent. This change would help them find workers with the skills they need to scale up, grow and prosper.

The legislation amended the Employment Standards Act (ESA) to ban non-compete clauses, except for executives and in certain circumstances related to the sale of a business. It prohibited employers from entering into employment contracts with non-compete clauses and stipulated that those agreements are void.

Are agreements signed before October 25, 2021 void?

The ban on non-compete agreements was made effective retroactively to October 25, 2021, the day the legislation was introduced in the legislature. Early interpretations of the prohibition have therefore concluded that it only applies to agreements signed on or after October 25, 2021. The Ministry of Labour has taken the position in several publications that the new legislation “does not prohibit or void non-compete agreements that were entered into prior to October 25, 2021.”

The same conclusion was reached in Parekh et al v Schecter et al, where the Superior Court concluded that, because the Legislature specifically chose October 25, 2021, as the date for these provisions to come into force, they did not apply to agreements signed before that date.

However, there are multiple potential arguments that all non-compete clauses are now void for workers governed by the ESA.

First, the new ESA provisions themselves do not refer to an effective date of October 25, 2021. It is questionable to rely heavily on the date of coming-into-force when interpreting legislation that is meant to provide minimum standards that apply to all employees. The Legislature could have referenced an effective date in the legislation if that were its intention.

Second, the ESA is meant to provide minimum standards that apply to all employment contracts. As the employee argued in Parekh, the ESA should not be interpreted in a way that would create different rights for different employees, based on when they signed their contract.

Third, it is not unusual for rights under the ESA to change during the life of an employment contract, which can last decades. When the ESA is amended, unless the legislation provides for a transitional period, it is the current ESA that governs employment agreements, not the version of the ESA as it was in force at the time of the signing of an agreement. Workers do not need to undertake an archaeological study of their contract, to determine what version of the ESA applies to each clause.

Ultimately, as the Minister stated, even before this legislative change, non-compete clauses were rarely enforceable. Therefore, regardless of whether future decision-makers follow Parekh or take a different approach, non-compete clauses are likely to continue to be found void.

If you have questions or concerns about whether your non-compete clause is valid or any other questions about your employment, we are here to help. Please call 613–567–2901 or email info@ravenlaw.com to consult one of our experienced employment lawyers.

[Please note that this article is for informational purposes only, and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

No Free Work

RavenLaw supports liveable wages for all employees, including articling students. As employees, articling students are entitled to compensation for the valuable work they perform in law firms, organizations, and public employers across Ontario. We have written to the LSO Benchers to express our firm’s position that articling students should be provided with a liveable wage for their work and, in the alternative, no less than the bare minimum pay outlined in the Employment Standards Act. A copy of our firm’s letter is available here.

We also endorse the positions of many others calling for the protection of minimum wage for articling students by the Law Society of Ontario (“LSO”) from the following organizations and firms:

CUPE Local 1281
Canadian Association of Labour Lawyers
Goldblatt Partners
The Canadian Association for Legal Ethics
Durant Barristers (supported by 57 signatory firms)
Peter Wardle of Singleton Urquhard Reynolds Vogel LLP
Alexander Overton
Law Students’ Society of Ontario
Federation of Ontario Law Associations

We recognize the precarious and vulnerable position of articling students. As such, regardless of the outcome of the LSO’s consultations on the issue of minimum compensation, RavenLaw LLP will be supporting articling students seeking to organize their workplace, pro bono. We invite articling students interested in unionizing to contact us at info@ravenlaw.com

Raphaëlle Laframboise-Carignan to Present on Accommodation and Disability Benefits

On March 22, 2022, Raphaëlle Laframboise-Carignan will present as part of a speakers’ night series being held by Mood Disorders Ottawa. Raphaëlle will be discussing workplace accommodations, long-term disability (LTD) benefits, and other disability benefits available when a person cannot work due to injury or illness.

For more information on this upcoming presentation, please visit the event website.

RavenLaw Attends UOttawa Career Connections Events

During the week of March 14, 2022, RavenLaw represented the firm at the 2022 uOttawa Career Connections event, held virtually.

Morgan Rowe, Zachary Rodgers, Claire Michela, and Simcha Walfish participated in panels, roundtables, and meet and greet events with law students and particularly spoke about their work representing unions and employees. Thank you to the organizers for putting on this great event, and thank you to the uOttawa students for your engagement and enthusiasm!

If you’re a student looking for more information about the summer or articling experience at RavenLaw, please contact us at studentrecruitment@ravenlaw.com.

Is My Termination Clause Invalid? Conflicting Case Law In The Ontario Courts

Is My Termination Clause Invalid Conflicting Case Law In The Ontario Courts

Recent decisions in the Ontario courts have created uncertainty for Ontario workers
as to whether the termination clauses in their contracts are valid or not. Many
employment contracts contain a sentence that reads something like this:

c) Termination by the Company for Just Cause – The Company has the
right, at any time and without notice, to terminate your employment under
this Agreement for just cause.

Under this provision, if the employer has “just cause” to terminate the employee,
they can be terminated immediately, without any right to notice or pay in lieu of
notice.

This type of provision has been found void because it violates the Employment
Standards Act (ESA). The problem arises from the different standards for
terminating someone’s employment for cause under the common law and under the
ESA. Under the common law, employers may terminate without notice if they have
“just cause”, a concept which is broader than just wilful misconduct, and can
include things like prolonged incompetence. The ESA, on the other hand, only
permits termination without notice for wilful misconduct, sometimes described as
“being bad on purpose.”

So, the problem with the termination provision above is that it allows the employer
to terminate an employee, without any notice (even the limited right to notice
under the ESA), for conduct that wouldn’t rise to the level of wilful misconduct, and
therefore violates the ESA. For this reason, Courts have found this type of clause to
be void.

The Court of Appeal went even further in Waksdale, a decision released last
summer, ruling that, if the termination for cause provision is invalid, the whole
termination provision is invalid. (To learn more about that decision, read our blog
about it here). What this means is that, even if an employee is terminated without
cause, the fact that their “just cause” provision was invalid means the whole
termination clause is invalid. This then entitles the terminated employee to receive
pay–in–lieu of common law notice, which is generally higher than notice under the
ESA.

While Ontario workers may have hoped Waksdale settled this area of the law, more
disagreements have arisen among Ontario judges about whether this analysis
applies in the same way to all employees, or if it is only meant to protect more
vulnerable parties. In a case released in September, the Court rejected the idea
that a “just cause” provision should always be interpreted as violating the ESA.
Justice Dunphy reasoned that, in this case, the plaintiff was a sophisticated party,
being hired to perform a senior role, with a high salary. She received legal advice

and the parties specifically negotiated the termination clause. He concluded that her

contract provided her a greater benefit than the ESA. Because there was no
disparity in bargaining power, there was no reason why the provision should be
invalid.

But in a case released in October, the Court reached the opposite conclusion. The
contract of employment was negotiated together with a business deal. The
employee was a sophisticated party and was represented by a lawyer when
negotiating the contract.

Despite the fact that there was no significant imbalance of power, the Court found
“no compelling reason” why the employer should be able to rely on a termination
provision that did not comply with the ESA. Justice Black recognized the broader
impact of ensuring that contracts comply with the ESA:

Further, in my view the goal that employers be encouraged to draft clauses
that comply with the ESA trumps the suggestion that Livshin may have been
better able than many or most employees to recognize the potential peril.
These two conflicting decisions on a similar question, released one month apart,
have introduced greater uncertainty into the interpretation of employment contracts
in Ontario.
If you have questions or concerns about the how this case law may apply to the
termination clause in your employment contract, we are here to help. Please call
613–567–2901 or email info@ravenlaw.com to consult one of our experienced
employment lawyers.

Ontario Announces Legislation for More Workplace Policies

Wassim Garzouzi speaks to Ottawa Morning with Robyn Bresnahan on the Ontario Government’s proposed amendments to the Employment Standards Act, specifically as they relate to the right to disconnect.

Ontario Government Proposes to Ban Noncompete Clauses

Wassim Garzouzi was interviewed by the Toronto Star on the Ontario Government’s proposed ban on noncompete clauses in employment contracts. Check out what he said here!

Courts differ on whether to deduct CERB benefits from wrongful dismissal damages