Canadian Lawyer InHouse

language of the bargain, blindness, deaf- ness, illness, senility, or other disability; and 4. Other party knowingly taking advan- tage of this vulnerability. The court concluded it was grossly inadequate to offer only 28 weeks' sever- ance to Rubin and also concluded that he did not have independent legal advice. The fact the termination letter said he had one week to sign the release was not sufficient because Home Depot did not verbally tell Rubin that he could take a week to seek legal advice before signing. The court then cited a large body of case law stating there is an inherent imbalance in bargaining power between employees and employers. Lastly, the court concluded Home signing is not enough. Make sure the per- son conducting the termination verbally tells the employee this at the meeting. The best practice is to not allow an employee to sign a release at the termination meeting. 3. Offer to pay for legal advice. It will be a very rare case where a court will set aside a release that is signed by an employ- ee after he receives legal advice. Some employers offer to contribute a nominal amount (usually $500) to have the sever- ance package and release reviewed by the employee' increases severance costs, the expense is small, and the practice tends to reduce the risk of a lawsuit. Given the cost of litiga- tion, this practice often decreases overall legal costs. IH Malcolm MacKillop and Hendrik s lawyer. While this practice Nieuwland practise employment law with the firm Shields O'Donnell MacKillop LLP of Toronto. Depot had taken advantage of Rubin and misled him into believing the sever- ance being offered was his maximum entitlement. Home Depot did this in two ways. First, the letter told Rubin that 28 weeks' severance exceeded his entitle- ments under the Employment Standards Act, 2000 (which it did, but only by two days' pay). Since the letter did not refer to Rubin' sonable notice, it gave Rubin the incorrect impression that he was receiving more than what he was entitled to. Second, the letter suggested he would not be paid if he did not sign the release. This was false because the act required Home Depot to pay almost the entire amount to Rubin irrespective of whether he signed the release. The court therefore set aside the release and awarded 12 months' salary to Rubin. In light of the Rubin case, in-house s common law entitlements to rea- SPECIALIZATION IN BUSINESS LAW Part-time, Executive LLM program for corporate counsel and practising lawyers counsel should consider the following when seeking a release from a dismissed employee: 1. Don't oversell the severance package. The best way to avoid this is to ensure the termination letter clearly sets out the employee's minimum statutory sever- ance entitlements, and then explains what amount the employer is prepared to pay above those minimum entitlements in exchange for a release. 2. Tell the employee to take their time before signing. Rubin makes it clear hav- ing the termination letter say an employee has time to consider the release before For more information, call 416-978-1400 or visit: http://www.law.utoronto.ca/programs/GPLLM.html TIME: EVENT: Supported by the Association of Corporate Counsel (ACC) - Ontario Chapter and in partnership with Carswell, a Thomson Reuters business. INHOUSE WWW.CANADIANLAWYERMAG.COM/INHOUSE AUGUST/SEPTEMBER 2012 • GLLM_IH_Apr_12.indd 1 12-05-03 10:58 AM 13

• Cover