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Lessons learned the hard way, refusing to listen or just bad advice

Litigious means “ fond of engaging in law suits”. The truth is, most lawyers are more fond of settling law suits than going to court. A clear and firm result rather than the vagaries of the court room are almost always best for everyone. Sometimes clients don’t agree.
 
In 2003, a man we will call Ryan began working at a call centre in British Columbia. He was well liked and respected and three years later he received his second promotion to that of Client Services Manager. He signed a contract that said if he was ever terminated he would receive only the payments and entitlements required by the Employment Standards Act and nothing more.
 
Four years later he was promoted to “Senior Manager, Client Services”. When he received that promotion, he was not asked to sign a new contract.
 
Eventually, the original office Ryan started in closed down and he began working out of his home in Canada but spending much of his time for a client at their American offices. The client and the company wanted to transfer Ryan but the American government would not recognize his same sex partner as a spouse and therefore his partner could not get a visa. Everyone was disappointed.
 
The company put off the necessity of making a change as long as it could but eventually Ryan’s boss told him on June 16th, 2011, that they were posting his position to find a replacement since he could not move to the United States and the client was pressing them. On June 20th, the boss told Ryan’s co-workers that his position was being posted. She had already told Ryan that she was doing this because she didn’t want anyone to think that he was being terminated for cause or had done anything other than an outstanding job.
 
Ryan started to interview for another position within the organization but before he scheduled the second interview the employer, with the right hand not knowing what the left hand was doing, terminated him.
 
Ryan sued and claimed that the 2006 contract was not enforceable because his job had changed significantly since he had agreed to limit himself to the Employment Standards Act minimums if he was ever terminated and the old contract should not apply. He also claimed punitive damages because the employer had told 13 co-workers three weeks before his termination that he was out of a job and that they had cruelly terminated him before he could schedule a second interview for another job in the company.
 
There is case law indicating that if you sign a contract limiting yourself to a certain amount of pay in lieu of notice at the time of termination but then are terminated from a vastly different job, it may not be enforceable.
 
In Ryan’s case, he went from manager to senior manager. His salary increased about $20,000 a year and his portfolio doubled with respect to his budgetary responsibilities. He was in charge of more clients and his travel increased. Ultimately, the court found that the changes to Ryan’s responsibilities were not fundamental.  They were a natural progression in the terms of employment. The contract itself said that it would apply regardless of any changes to the employee’s position after signing it. The court found that Ryan’s contract was enforceable notwithstanding that he had been promoted after signing it and then turned its mind to the punitive damages issue. It turns out that Ryan had chosen not to respond to the call for a second interview and could have done so promptly and avoided the whole termination. The manager’s decision to share what was happening with other employees was to protect Ryan not to hurt him. No punitive damages were awarded.
 
Sometimes when I read cases like Ryan I wonder whether the lawyer was giving bad advice or the client refused to listen. Ryan’s loss was not in any way surprising or unpredictable. Ryan paid for his lawyer and the employer’s lawyer. If he learned any lesson from this he learned it in a very hard way.
 
As published in The Hamilton Spectator, April 7, 2014
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com