Canadian Lawyer

November 2021

The most widely read magazine for Canadian lawyers

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1 2021 ONSC 5961 2 2020 ONCA 391 3 At the time of writing, an appeal had not been filed. Workplace issues never sleep. That's why our 24 hour line is answered by a Sherrard Kuzz lawyer every hour of every day, even on holidays. Whatever the issue. Whatever the time. Our 24 hour line means our clients sleep well at night even if we sometimes don't. If you're an employer, we're the only call you need to make. sherrardkuzz.com | 416.603.0700 250 Yonge St #3300, Toronto, ON M5B 2L7 @sherrardkuzz 24 HOUR 416.420.0738 We never call it a day. on that account, particularly in the case of a plaintiff who had independent legal advice". And,"[T]here can be no suggestion that Ms. Rahman was not adequately informed of both the nature of the statutory and common law rights that were the subject of the negotiations and the impact of the contract proposed by the employer on those rights"…"Perfection is certainly not the standard required of legal advice in this context." The judge also noted that, unlike in previous decisions that had come before the courts, in this case the employer did not have an employment policy that allowed dismissal in circum- stances that fell below the standard required by the ESA. Best practices for employers The long-term impact of Rahman remains to be seen 3 . In the meantime, employers should keep the following in mind: • It may be easy to overlook whether an employee signs an employment agreement with the benefit of independent legal advice. However, having that advice can strengthen the employer's position if and when the employee later seeks to overturn a negotiated agreement. Particularly (though not exclusively) for high earning employees, inde- pendent legal advice is a best practice. • Words matter, so it is important to work with counsel who will draft language that clearly and unambiguously reflects the parties' intentions, complies with the law, and includes a proper saving provision. Particularly in recent years, employment law across Canada has fluctuated greatly, making it all the more important to work with a lawyer who is an expert in this area. • Pulling an employment template off the internet should be avoided for a variety of reasons, including the high likeli- hood the document will be neither legally accurate ( juris- diction and substance) nor appropriately reflect the par- ties' intentions. • Workplace policies may provide additional evidence of the parties' intentions in the employment agreement. As such, employers should review their workplace policies regularly to ensure they do not inadvertently provide for less than employment standards. To learn more, and for assistance, contact the team at Sherrard Kuzz LLP.

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