Canadian Lawyer

September 2021

The most widely read magazine for Canadian lawyers

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Page 34 of 51

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice, nor does accessing this information create a lawyer-client relationship. This article is current as of August 2021 and applies only to Ontario, Canada, or such other laws of Canada as expressly indicated. Information about the law is checked for legal accuracy as at the date the article is prepared, but may become outdated as laws or policies change. For clarification or for legal or other professional assistance please contact Sherrard Kuzz LLP. At Sherrard Kuzz LLP we collaborate with our clients to anticipate and avoid human resources problems. We know proactive steps today will prevent Murphy's Law tomorrow. From human rights to health and safety, and everything in between… If you're an employer, we're the only call you need to make. | 416.603.0700 250 Yonge St #3300, Toronto, ON M5B 2L7 @sherrardkuzz 24 HOUR 416.420.0738 and his employment were subject to early termination by either party with, in the case of employment termination, the provision of one month written notice. Mr. Younesi read the document before he signed it. The language used was unequivocal and explicit, and the contractual inten- tion was clear and unambiguous. Younesi was awarded six month's notice; four month's reasonable notice and a further two month "inducement increase." The one-month termination provision in the employment agreement was found to be void because it did not comply with the minimum requirements of the British Columbia Employment Standards Act. In assessing the appropriate period of reasonable notice, the court noted: The analysis respecting short-term employees may be dis- tinctive. Absent enforceable probationary provisions, such short-term employees may benefit from a proportionately longer period of notice, with two to three months often being the starting point before further adjustment. As for an "inducement increase," the court held there was "no doubt" Kaz Minerals induced Younesi to leave his pre- vious employment. It had requested particulars of his for- mer compensation package for the sole purpose of preparing the comparison schedule attached to the Offer Letter and emphasized the 22-month assignment based in Vancouver. According to the court, the package "… was designed to be an irresistible offer having regard to Mr. Younesi's personal cir- cumstances. By any measure, it amounts to inducement far beyond the standard "wooing" of a prospective employer…." Lessons learned While competition for top talent is fierce, it need not expose a prospective employer to additional liability. If a bully offer is the only way to close the deal, a clear and enforceable ter- mination clause remains the best way to mitigate risk and provide certainty to an employer, should employment be short-lived. To learn more and for assistance, contact Sherrard Kuzz LLP. 1 Younesi v Kaz Minerals Projects B.V., 2021 BCSC 614.

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