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under employment standards legislation. under the ESA, but whether the language not expressly refer to benefits at all. The Consequently, Stevens' termination of the termination clause complies with enforceability of these clauses is therefore those minimum requirements. very much in doubt. clause was deemed to be void. In our view, the court in Stevens took As in-house counsel, this is an opporThere certainly is an argument that the court in Stevens got it wrong. The termi- an overly narrow and impractical analy- tune time to re-examine the language of nation clause in Stevens said the employee sis of standard form termination clauses. your termination clauses. There appear to would receive "notice or payment in lieu The court's view in Stevens does not re- be two ways to revise a termination clause of notice." "Notice" means "working no- flect a consensus amongst the judiciary. to avoid the problem faced in Stevens. First, tice" under the ESA. When an employee In an earlier decision, King v. Weber the termination clause can be drafted to works out her notice period, the employer Manufacturing Technology Inc., the court simply state an employee will be provided continues to provide benefits as a matter upheld a termination clause that used with his/her minimum "entitlements" under the applicable emof course. Therefore, it ployment standards legisshould be implicit that a As in-house counsel, this is a good time to lation. This strategy was termination clause that re-examine the language of termination clauses. used with success in offers "payment in lieu of Clarke v. Insight Componotice" includes a promise to provide benefits over the notice pe- very similar language to that found in nents. Alternatively, the termination clause riod. In our experience that is exactly Stevens, and which did not mention the can be drafted so it expressly states benefits what employers intend, and the employer provision of benefits at all. Nevertheless, will be provided over the minimum statuin Stevens followed through with that in- the significance of the Stevens decision tory notice period. IH tention by providing Stevens with bene- cannot be understated. While terminafits in addition to notice pay. Neverthe- tion clauses may differ in style, the for- Malcolm MacKillop and Hendrik Nieuwless, the court held the issue is not mat seen in the Stevens case is common land practise employment law with the whether the employer acted in compli- in the marketplace. Most termination firm Shields O'Donnell MacKillop LLP ance with the minimum requirements clauses we have seen in our practice do of Toronto. Ball Professional Corporation CANADIAN EMPLOYMENT LAW STACEY REGINALD BALL Excellence in Employment & Labour Law MORE THAN 6,145 CASES CITED Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada and is used in law schools throughout Canada. • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights ORDER# 804218-62303 $365 804218-62303 2 volume looseleaf Post Employment Competition supplements per year Supplements invoiced separately 0-88804-218-3 Civil Litigation CD-ROM or Internet version available separately Prices start at $4 Disability Appellate Advocacy Referrals on behalf of employees and employers respected AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.ca .c Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. CANADA LAW BOOK® 82 Scollard Street, Toronto, Canada, M5R 1G2 Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com web: www.staceyball.com w w w. c a n a d i a n law y er m a g . c o m / i n h o u s E arswell-26372_CL_Feb_13.indd 1 13-01-15 10:02 AM all_CL_Mar_12.indd 1 august 2013 • 13 12-03-13 2:27 PM

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