Articles by our Lawyers

Suing Twitter for Defamation

Toronto Defamation Lawyer Gil Zvulony discussed some of the legal issues in suing Twitter with Canadian Lawyer Magazine.  Gil Zvulony highlighted some of the uncertainties in the law as it relates to the liability of internet intermediaries such as Twitter. The entire article can be found here: Warren Kinsella settles claim against Twitter 

Court of Appeal Reminds Employers of the Need for Clear Contracts

By Pixabay (Pixabay) [CC0], via Wikimedia Commons

Fixed Term Employment Contracts

In the case of Howard v. Benson Group Inc. (2016 ONCA 256 (CanLII)) the Ontario Court of Appeal stressed that employers risk liability if they fail to have an enforceable termination clause in a fixed term contract. A fixed term contract generally refers to a contract that is subject to a definite period of time and is sometimes used by employers.  For example, the employer and employee agree that the employee will be employed from January 1, 2017 – December, 31, 2017. Generally speaking, at the end of the fixed term period, the contract will simply come to an end. Accordingly, the employee will not be owed anything for statutory or common law notice or severance from their employer.

Issues may arise if the employment is terminated before the expiration of the fixed term. A properly drafted fixed term contract should contain an early termination clause which would address what happens in the event the contract needs to be terminated prior to the expiry of the fixed term.   Generally, provided that the contract contains an enforceable early termination clause that complies with the minimum standards set forth in the Employment Standards Act, the employee’s damages and the employer’s liability resulting from the early termination would be limited to what is outlined in the early termination clause.

What Happens When There is an Ambiguous Agreement About Early Termination

What happens when a fixed term contract is terminated without cause prior to the expiry of the fixed term and the contract does not contain an enforceable early termination clause? The Ontario Court of Appeal addressed this question in the Howard case (cited above). The facts in Howard are straightforward. Howard was employed with the Defendant, Benson Group Inc. pursuant to a five (5) year fixed term contract.  The contract contained the following termination provision:

“Employment may be terminated at any time by the Employer and any amounts paid to the Employee shall be in accordance with the Employment Standards Act of Ontario”

The employer terminated Howard’s employment without cause after 23 months.  Howard sought damages equal to the balance left on the fixed term (i.e 37 months). The Employer disagreed taking the position that Howard’s entitlements ought to be in accordance with the early termination clause in the contract outlined above, which would be considerably less than the 37 months that Howard was seeking. The lower court Judge rejected the Employer’s argument that the early termination clause in the contract was enforceable and found that it was unenforceable due to ambiguity.

Accordingly, the lower Court found, Howard’s damages should be determined in accordance with the principles of the common law requiring reasonable notice and therefore rejected Howard’s position that his damages should be  based on the balance owing for the remainder of the fixed term; which was 37 months.  Howard appealed. (The Employer did not appeal the Motion Judge’s finding that the termination clause was unenforceable.)

The Court of Appeal agreed with Howard, finding that the Motions Judge erred in finding that damages should be in accordance of the common law reasonable notice. Specifically, the Court of Appeal stated at para 44 that:

[44]   In the absence of an enforceable contractual provision stipulating a fixed term of notice, or any other provision to the contrary, a fixed term employment contract obligates an employer to pay an employee to the end of the term, and that obligation will not be subject to mitigation. Just as parties who contract for a specified period of notice (or pay in lieu) are contracting out of the common law approach in Bardal v. Globe & Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.), so, too, are parties who contract for a fixed term without providing in an enforceable manner for any other specified period of notice (or pay in lieu).

In other words, an employee whose fixed term contract is terminated prior to the expiry of the fixed term would be entitled to be paid until the end of the fixed term, which would be 37 months in the case of Howard.

More importantly, the Court held that there is no duty to mitigate damages. Normally a wrongfully dismissed employees has an obligation to minimize his damages by looking for alternate employment. The circumstances in Howard are an exception to this rule. Meaning, the employee’s damages, will not be subject to any deductions in the event the employee earns other income from the date of termination to the end of the fixed term. This is a departure from the common law obligation to mitigate in cases where the employee is provided with common law notice. The Court rationalized that unlike reasonable notice under the common law, the parties to a fixed term contract decided to opt out of the common law reasonable notice approach and therefore the duty to mitigate should not apply.

Conclusion

In conclusion, the Howard case is a stark reminder of the importance of having a properly drafted and enforceable early termination provision in any fixed term contract.

The Importance of a Well Drafted Termination Clause

Wood v. Deeley: Ontario Court of Appeal Refuses to Enforce Poorly Drafted Termination Clause By Toronto Employment Lawyer, Karen Zvulony An employment agreement, which contains a well drafted and statutorily compliant termination clause can be a useful tool for employers to limit their liability in the event of a termination without cause. The recent Ontario […]

Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest

https://www.flickr.com/photos/mikecogh/8035396680/in/photolist-df4vu5-shn8mY-nuiaTX-o2ZGfB-A8zQK-6b6ku9-neXg89-MxynM-5MW23a-rjHT6L-fzADbE-cjNfZ3-nWxY2f-jynmri-6Z9Mfg-6x8f2D-6eHRzj-98a2SQ-pvxGwd-4QBCcK-qF3qGy-6sm1SK-4XDVXF-edgVf9-swDkKA-fxhPAn-4QFPUo-v2YSxW-ci5BKj-4qoeQA-4XGTxf-ac55u-pL4jEW-gtahJr-fzkZx8-bCyW4S-7JufbN-7esBiA-x3EJL-qEYxab-qbZ3B7-8iSCQR-7bgTo5-c2zqus-sHKwkf-dBgUD9-dV2F84-9soJr2-cPvNh-4QFPxq

Below is Section 137.1 of the Courts of Justice Act. This is Ontario’s Anti-SLAPP law. For the official version check  the E-Laws site.

Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)

Dismissal of proceeding that limits debate

Purposes

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. 2015, c. 23, s. 3.

Definition, “expression”

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity. 2015, c. 23, s. 3.

Order to dismiss

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. 2015, c. 23, s. 3.

No dismissal

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. 2015, c. 23, s. 3.

No further steps in proceeding

(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of. 2015, c. 23, s. 3.

No amendment to pleadings

(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a) in order to prevent or avoid an order under this section dismissing the proceeding; or

(b) if the proceeding is dismissed under this section, in order to continue the proceeding. 2015, c. 23, s. 3.

Costs on dismissal

(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. 2015, c. 23, s. 3.

Costs if motion to dismiss denied

(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances. 2015, c. 23, s. 3.

Damages

(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

Procedural matters

Commencement

137.2 (1) A motion to dismiss a proceeding under section 137.1 shall be made in accordance with the rules of court, subject to the rules set out in this section, and may be made at any time after the proceeding has commenced. 2015, c. 23, s. 3.

Motion to be heard within 60 days

(2) A motion under section 137.1 shall be heard no later than 60 days after notice of the motion is filed with the court. 2015, c. 23, s. 3.

Hearing date to be obtained in advance

(3) The moving party shall obtain the hearing date for the motion from the court before notice of the motion is served. 2015, c. 23, s. 3.

Limit on cross-examinations

(4) Subject to subsection (5), cross-examination on any documentary evidence filed by the parties shall not exceed a total of seven hours for all plaintiffs in the proceeding and seven hours for all defendants. 2015, c. 23, s. 3.

Same, extension of time

(5) A judge may extend the time permitted for cross-examination on documentary evidence if it is necessary to do so in the interests of justice. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

Appeal to be heard as soon as practicable

137.3 An appeal of an order under section 137.1 shall be heard as soon as practicable after the appellant perfects the appeal. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

Stay of related tribunal proceeding

137.4 (1) If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal. 2015, c. 23, s. 3.

Notice

(2) The tribunal shall give to each party to a tribunal proceeding stayed under subsection (1),

(a) notice of the stay; and

(b) a copy of the notice of motion that was filed with the tribunal. 2015, c. 23, s. 3.

Duration

(3) A stay of a tribunal proceeding under subsection (1) remains in effect until the motion, including any appeal of the motion, has been finally disposed of, subject to subsection (4). 2015, c. 23, s. 3.

Stay may be lifted

(4) A judge may, on motion, order that the stay is lifted at an earlier time if, in his or her opinion,

(a) the stay is causing or would likely cause undue hardship to a party to the tribunal proceeding; or

(b) the proceeding that is the subject of the motion under section 137.1 and the tribunal proceeding that was stayed under subsection (1) are not sufficiently related to warrant the stay. 2015, c. 23, s. 3.

Same

(5) A motion under subsection (4) shall be brought before a judge of the Superior Court of Justice or, if the decision made on the motion under section 137.1 is under appeal, a judge of the Court of Appeal. 2015, c. 23, s. 3.

Statutory Powers Procedure Act

(6) This section applies despite anything to the contrary in the Statutory Powers Procedure Act. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

Application

137.5 Sections 137.1 to 137.4 apply in respect of proceedings commenced on or after the day the Protection of Public Participation Act, 2015 received first reading. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

,

About Long Term Disability Claims

https://www.flickr.com/photos/pictures-of-money/17121703798/in/photolist-s5Zd2C-s4fqNk-snzzRc-rDMrv8-dB615-snxeS4-7hgcYC-hQdFe7-bmr6MR-9u1Z6g-7awYgY-9u1ZcH-5qo47u-bmm7zF-7AywKe-s61mYW-rqLAQx-rqzkGE-rcCdfr-rmqaQJ-7X1cm9-dAswam-gK2ey6-8fhmes-9n1pQJ-hgrs2Y-9u512b-7ARAYP-fvf2xd-9stYRU-3nrsfg-7LK3MG-kwHFkV-kwL3sQ-eWYNS-6iBD22-dwSkQ7-6JMcST-9xY4QL-84sraL-kwJi6F-kwHEBk-kwL2gG-6Q8wmh-9nkJKS-8d6WJC-9SpxBS-at5q8F-oHW4k-8ncDsJ

Toronto Disability lawyer gives an overview of Long Term Disability Insurance Policies

Online Harrasment

http://pixabay.com/en/cyber-bullying-bully-rumor-teasing-122156/

Toronto internet lawyer, Gil Zvulony was recently interviewed by City News about the laws dealing with online harassment and cyber bullying.

Top Ten Tips for Internet Defamation Victims

This article explores ten essential tips for dealing with defamation on the internet. It provides some simple and practical advice to people who have been libeled on the internet, including how to determine the severity of the defamation, whether the posting is defamatory, and whether it is worth suing over.

Predators on Dating Sites

http://kaboompics.com/one_foto/917

Gil Zvulony spoke to CityNews about the problem of predators and pedophiles using dating websites to lure children. Gil cautioned that many dating websites do not verify the identity of their users. He also, highlighted that the law, as it currently stands, does not require dating sites to actively pre-screen their users.

Privacy and Health Records

http://pixabay.com/en/contract-consultation-office-408216/

Toronto privacy lawyer, Gil Zvulony appeared on CHCH’s Square Off to discuss the problem of unlawful disclosure of health records and privacy breaches in hospitals.