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By Malcolm J. MacKillop and Hendrik T. Nieuwland Make sure your release A s many employers know from recent dismissal lawsuits. One common strat- egy to reduce or even eliminate litigation costs is to make the payment of sever- ance conditional on signing a release. Most believe if an employee signs a downsizing is expensive, both in terms of severance payments and wrongful experience, stands up in court Requiring an employee to sign on the spot could be deemed 'unconscionable.' release an employer can always rely on it to thwart any legal proceeding brought by the employee. Like any contract, however, a release can be set aside if the court con- cludes it is "unconscionable. pened in the recent decision Rubin v. Home Depot Canada Inc. Eric Rubin was 63 years old with 20 " This hap- years' service when he was terminated. His termination letter offered him 28 weeks' severance, which would only be paid if he signed a release within one week. Home Depot did not verbally tell Rubin he could take a week to seek legal advice before signing the release, and so he signed the release at the meeting. Rubin later sued Home Depot, claim- ing the release was unconscionable and should be set aside. The court agreed with Rubin and explained that four elements must be met to set aside a contract for being "uncon- scionable": 1. A grossly unfair and improvident trans- action; 2. Victim's advice or other suitable advice; 3. Overwhelming imbalance in bargaining power caused by the victim' lack of independent legal of business, illiteracy, ignorance of the s ignorance FIND EXPERT INTERPRETATION OF OMBUDSMAN LEGISLATION NEW PUBLICATION OMBUDSMAN LEGISLATION IN CANADA: AN ANNOTATION AND APPRAISAL GREGORY J. LEVINE, LL.B., Ph.D. Ombudsman Legislation in Canada: An Annotation and Appraisal provides a comprehensive review of the Canadian ombudsman system, with a detailed comparative review of the legislative provisions across all jurisdictions. In addition to providing a basic statutory interpretation of the legislative provisions, the author discusses case law and how the courts have seen the ombudsman. THIS NEW PUBLICATION PROVIDES: • ORDER # 984934 $125 Softcover approx. 250 pages March 2012 978-0-7798-4934-5 • • Key guidance on matters involving ombudsmen, their powers, and what they can do under their enabling legislation – from a leading practitioner in ombudsman law Comprehensive analysis of the legislative framework in place at the federal, provincial and territorial levels – eliminating the need to consult multiple resources Ombudsman Legislation in Canada: An Annotation and Appraisal is an important desk reference for parliamentary and executive ombudsmen, their counsel, and administrative lawyers engaged in dealing with government departments and bureaucracy. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com 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. AUTHORITATIVE. INNOVATIVE. TRUSTED. Coverage of the broader administrative aspects of the Ombudsman office – including what oversight a legislature or Parliament has over the ombudsman, how the office is established, what is its accountability, and salary and remuneration issues 12 • AUGUST/SEPTEMBER 2012 WWW.CANADIANLAWYERMAG.COM/INHOUSE INHOUSE

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