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Employment Law - Employment standards legislation - Contracting out

Thursday, August 25, 2016 @ 8:00 PM  


Appeal by the plaintiff, Oudin, from refusal of partial summary judgment in a wrongful dismissal action against the defendant, the Centre Francophone de Toronto. In December 2000, the defendant hired the plaintiff as a project manager for a magazine containing advertisements and a listing of resources available to serve members of the Francophone community of Toronto. In September 2013, the Centre discontinued the publication and the plaintiff’s employment was terminated as a result. The plaintiff received 21 weeks of severance and termination pay in accordance with the provisions of his employment agreement. The plaintiff brought an action for wrongful dismissal with a motion for partial summary judgment finding the termination provisions of the employment agreement unenforceable. The motion judge found that the employment agreement was valid and enforceable, and there was no intention to contract out of the statutory minimum standards for severance provided by the Employment Standards Act. The plaintiff appealed.

HELD: Appeal dismissed. The motion judge inaccurately translated the termination provisions from French to English by reading it to state it provided for the minimum prescribed by the ESA rather than the minimum notice required by the ESA. The error was of no import, as the judgment clearly indicated that the provision referred to notice alone rather than the notice and severance requirements of the ESA. The judge accordingly found no intention to contract out of all of the requirements under the ESA. The judge’s interpretation was entitled to deference. There was no error in the conclusion that the termination provision of the employment agreement was enforceable.