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Employer-side practitioners find the deci-
sions may have muddied the waters — or at
least have been less favourable to employers.
"There's probably a lot of agreements out
there that are thought to be enforceable,
on both sides of the bench, even a couple of
years ago, that now will be put under much
closer scrutiny, and may potentially be found
to be unenforceable," says Daniel Attwell, a
partner at Mathews Dinsdale & Clark LLP,
an employer-side boutique firm, in Toronto.
"That's the most immediate impact."
In Waksdale the court held that a "for
cause" termination provision in an employ-
ment contract that was not compliant with
the Employment Standards Act rendered the
"without cause" termination provision unen-
forceable.
The decision is significant "because it
applies the law around severability clauses in
a way that hasn't historically been applied,"
says Attwell. Traditionally, "if you have eight
paragraphs in a contract and one of those
paragraphs was offensive, you could strike
that one paragraph and the other seven
would remain in place, assuming you had
appropriate severability language in the
contract. The court here is saying, if all eight
of those clauses relate to the issue of termi-
"Take a hard look at the language in
your incentive plans right now and
make some changes going forward."
Caroline Spindler, Mathews Dinsdale & Clark LLP