Canadian Lawyer

April 2021

The most widely read magazine for Canadian lawyers

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Page 40 of 51 39 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

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