Canadian Lawyer

UPFRONT 8 www.canadianlawyermag.com ONTARIO UPDATE THE ONTARIO Superior Court has dismissed a wrongful dismissal action brought against Cannon Design Architecture by a former employee because she had the benefit of a lawyer to negotiate her employment contract. In Rahman v. Cannon Design Architecture Inc., Cannon Design Architecture employed Farah Rahman in February 2016. She agreed to yearly pay of $185,000 plus benefits and bonus. However, her contract contained a "just cause" provision whereby Rahman would receive no compensation if she were fired for "cause" even if it did not rise to the level of willful misconduct. Cannon Design Architecture dismissed Rahman in April 2020. She filed a wrongful dismissal suit, saying the termination provisions of her written employment agreement are void because they violate the minimum standards of the Employment Standards Act. The plaintiff, citing Waksdale v. Swegon North America Inc., argued that the language governing termination of employment for Court upholds termination clause in wrongful dismissal case tiate her contract. "Ms. Rahman sought and received legal advice about her rights at common law and under the ESA in relation to the possible future termination of her employment," Justice Dunphy wrote. He said that within a week of receiving the employment contract, Rahman's lawyer raised "particular" concerns regarding the termina- tion language of the employment contract in a letter he sent to Cannon Design. "There 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 nego- tiations and the impact of the contract proposed by the employer on those rights." Zaman says a crucial element in Justice Dunphy's decision was that Rahman sought independent legal advice to consider the terms of her employment offer before signing the contract. She says Justice Dunphy saw both parties as having equal bargaining power, whereas "in most situations, the courts will see an imbal- ance in the bargaining power with respect to the employment relationship." Rahman ought to have known the binding nature of the minimum standards in the ESA cannot be reduced or waived by contract and understood that the common law standards concerning termination of employment were potentially more generous than the ESA minimum standards and the termination benefits proposed in her offer letter, Justice Dunphy found. 'Sophisticated' employee sought independent legal advice about terms of employment offer cause in her offer letter violated the ESA because it created confusion by permitting termination without notice in situations not authorized by the ESA. The Ontario Court of Appeal decision on Waksdale v. Swegon North America Inc. held that if any part of a termination provi- sion in an employment contract breached the ESA, the employee would be entitled to full wrongful dismissal damages. "[Due to] Waksdale, employers had to scramble to update employment agreements to ensure they're enforceable," says employ- ment lawyer at Rudner Law, Nadia Zaman. In the summary judgement decision, Justice Sean Dunphy said the termination provisions of the employment agreement were valid and had no ambiguity. Justice Dunphy dismissed the action. He declared that the termination without cause provision was enforceable because Rahman was "sophisticated" and "experi- enced," earned a significant salary in a senior position and benefited from a lawyer to nego- NEWS BRIEFS Doctor owes no duty of care to future child for pre-conception negligence Per majority decision, an Ontario physician owes no duty of care to a future child for alleged pre-conception negligence. Before the decision in Florence v. Benzaquen, 2021 ONCA 523, previous cases have suggested that a doctor can, under certain circumstances, owe a duty of care to unconceived children for pre-conception negligence, says Ryan Marinacci, an associate focusing on medical malpractice litigation at Bogoroch & Associates LLP. Lawyer launches Coach My Case Self- rep tool to tackle access to justice crisis Mediator and founder of Crossroads Law, Marcus Sixta, launched a self-help legal coaching platform to improve access to justice for self-represented litigants. Coach My Case helps assist people who are self-representing in court, mediations or in arbitrations by providing them with a "client centred legal coaching and legal navigation service, so they [can] represent themselves better and with more confidence," Sixta says.

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