All Ontario Employers Need New Employment Contracts: Court of Appeal

Due to a very disruptive decision released by the Ontario Court of Appeal last week in Waksdale v Swegon North America Inc., 2020 ONCA 391, your employment contract is probably no longer enforceable.

Waksdale v Swegon North America Inc.

Waksdale v Swegon North America Inc. was a wrongful dismissal action by employee Benjamin Waksdale against his former employer Swegon North America Inc. Mr. Waksdale was terminated without cause after working only 8 months. He sued for 6 months pay in lieu of reasonable notice.

The plaintiff’s employment contract had the following “Termination Without Cause” provision:

You agree that in the event that your employment is terminated without cause, you shall receive one week notice or pay in lieu of such notice in addition to the minimum notice or pay in lieu of such notice and statutory severance pay as may be required under the Employment Standards Act 2000 as amended. All reimbursement for business expenses shall cease as of the date of termination of your employment, however, you shall be reimbursed for legitimate business expenses that have been incurred and submitted to the Company but not as yet paid you to that date. The terms of this section shall continue to apply notwithstanding any changes hereafter to the terms of your employment, including, but not limited to, your job title, duties and responsibilities, reporting structure, responsibilities, compensation or benefits.

The employment contract also had a “Termination for Cause” provision. It was conceded by the employer that the wording of this Termination for Cause provision breached the terms of the Employment Standards Act, 2000 (“ESA”) and was therefore void and unenforceable. In what is probably the most problematic portion of this decision, neither the Ontario Superior Court nor the Ontario Court of Appeal set out the wording of the Termination for Cause provision. Accordingly, we are all left to guess at what made it unenforceable.

At trial, the lawyer for Mr. Waksdale argued that the employment contract (or at the very least both of its termination provisions) was not enforceable because the Termination for Cause provision was void.

The Ontario Court of Appeal agreed and held as follows:

An employment agreement must be interpreted as a whole and not on a piecemeal basis. The correct analytical approach is to determine whether the termination provisions in an employment agreement read as a whole violate the ESA. Recognizing the power imbalance between employees and employers, as well as the remedial protections offered by the ESA, courts should focus on whether the employer has, in restricting an employee’s common law rights on termination, violated the employee’s ESA rights. While courts will permit an employer to enforce a rights-restricting contract, they will not enforce termination provisions that are in whole or in part illegal. In conducting this analysis, it is irrelevant whether the termination provisions are found in one place in the agreement or separated, or whether the provisions are by their terms otherwise linked.

What Makes a Termination for Cause Provision Void and Unenforceable?

As I have previously written about in my article “Termination of the Employment Relationship in Ontario”, where an employer has “just cause” for termination they can fire an employee without paying reasonable notice at common law (subject to the principles of Progressive Discipline).

Examples of “Just Cause” at common law include:

  • Repeated breaches of company policy
  • Repeated Truancy
  • Violence or Harassment
  • Dishonesty
  • Insubordination

When terminating for just cause, however, employers are still required to pay ESA Notice and Severance unless that employee “has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”.

Unless your employment contract explicitly carves out a distinction between termination for Just Cause and termination for “wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”, it may be void and unenforceable, as was found by the Court of Appeal in the Waksdale decision. As a result, your employment contract’s “Termination Without Cause” provision might also be found unenforceable.

Employment Contracts Post-Waksdale

The existence of the Waksdale decision is a serious liability for Ontario employers. Previously, little attention had been paid to the enforceability of the “Just Cause” provisions. From now on, that will no longer be the case. In my experience, very few employment contracts that come across my desk draw the distinction between Just Cause and “wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”.

As a result, the majority of employment contracts in Ontario need to be amended and updated. Otherwise, employers risk their termination provisions being unenforceable, which means they will owe employees common law reasonable notice. Common law reasonable notice often works out to months or years of notice rather than weeks under the ESA.

Waksdale Raises More Questions

While the Ontario Court of Appeal has made up its mind on the effect of poorly drafted Without Cause provisions, the Waksdale decision raises other important questions concerning employment contract more generally: if other terms of an employment contract breach the ESA, what is the effect on the enforceability of the termination provisions? For example, what if your employment contract provides for less than the minimum vacation entitlements, does that invalidate your termination provision?

This is a problem because, in Waksdale, the Court of Appeal stated “the correct analytical approach is to determine whether the termination provisions in an employment agreement read as a whole violate the ESA”. The Court also explained that “an employment agreement must be interpreted as a whole and not on a piecemeal basis”.

Whatever the answer to that question is, there is no doubt that employees now have another arrow in their quiver when challenging employment contracts— and employers face yet another risk when terminating an employee.

Employers Need New Employment Contracts

In conclusion, employers need to update their employment contracts. Doing so is inexpensive and pays substantial dividends at termination time. As noted, the difference in notice period, for an employee with an enforceable termination provision versus one without, can be months or years of pay.

If you are interested in learning how to implement new or update employment contracts, read my article, How to Change Employment Contracts.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.

The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Punitive Damages in Employment Law

An employer is obligated to act fairly and in good faith towards their employees. If an employer treats an employee maliciously, or intentionally breaks the law, Courts can punish that employer by awarding the employee what is called “punitive damages”.

In this article we will set out some of the circumstances under which punitive damages are awarded, the kinds of behaviour that warrant punitive damages, and how the courts determine whether punitive damages are appropriate.

What are Punitive Damages?

The Supreme Court of Canada defines the characteristics of punitive damage as follows:

Punitive damages may be awarded in situations where the [employer’s] misconduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency… It is the means by which the judge expresses outrage at the egregious conduct of the [employer].

When are Punitive Damages Awarded?

Punitive damages are rarely awarded and when they are, it is only after careful and cautious consideration by the Court. Factors that the Court considers are meant to test how serious and egregious the employer’s conduct was.

For example:

  • Was the employer’s misconduct planned and deliberate?
  • Did it occur over a long period of time?
  • Did the employer try to hide, lie about, or cover up the misconduct?
  • Was there some ulterior inappropriate motive behind the misconduct, such as intimidation, an intent to harm the employee, or to otherwise extract some unfair unjust advantage?

What kinds of bad behaviour warrant punitive damages?

While there is no strict all inclusive list of misconduct that leads to awards of punitive damages, Courts have awarded punitive damages in a number of cases, including, where:

  1. an Employer terminates for just cause based on knowingly false or unsupportable allegations;
  2. an Employee is treated in a demeaning and/or humiliating manner;
  3. an Employer demands that an employee resign before it will provide a reference letter;
  4. an Employer threatens, extorts or intimidates an employee;
  5. an Employer intentionally lies to or misleads an employee; or
  6. an Employer intentionally violates the Employment Standards Act, 2000: see Altman v. Steve’s Music, 2011 ONSC 1480 (CanLII).

The Legal Test for Punitive Damages in the Employment Law Context

The Ontario Court of Appeal in Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII), summarizes the legal test that the Ontario Court follows in deciding to award punitive damages, as follows:

  1. The defendant’s conduct is reprehensible.
  2. The defendant committed an “actionable wrong” independent of the underlying claim for damages for breach of contract; and
  3. A punitive damages award, when added to any compensatory award, is rationally required to punish the defendant and meets the objectives of retribution, deterrence and denunciation.

There have been a number of court cases that have ruled on each of the above three factors. Let’s take a deeper review of some of the defining principles of law that have emerged.

1. Reprehensible Conduct

Reprehensible conduct has been explained in a couple of cases, as follows:

  • In Vorvis v. Insurance Corp. of British Columbia, [1989] 1 SCR 1085, the Supreme Court of Canada observed that conduct meriting punitive damages awards must be:

“harsh, vindictive, reprehensible and malicious”, as well as “extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment”.

… the impugned conduct must depart markedly from ordinary standards of decency—the exceptional case that can be described as malicious, oppressive or high-handed and that offends the court’s sense of decency

The test … limits [a punitive damages] award to misconduct that represents a marked departure from ordinary standards of decent behaviour. Because their objective is to punish the defendant rather than compensate a plaintiff (whose just compensation will already have been assessed), punitive damages straddle the frontier between civil law (compensation) and criminal law (punishment).

[P]unitive damages should be resorted to only in exceptional cases and with restraint.

2. Committed an Actionable Wrong

The law does not permit individuals to be punished simply because they do something that a Judge or the Court doesn’t like or approve of. The legal system isn’t there to punish unethical behaviour, only illegal behaviour. Therefore, punitive damages can only be awarded where the misconduct of the employer amounts to some wrong that could give rise to a lawsuit by itself.

In Royal Bank of Canada v. W. Got & Associates Electric Ltd. [1999] 3 SCR 408,  this Court confirmed that “the circumstances that would justify punitive damages for breach of contract in the absence of actions also constituting a tort are rare”. Rare they may be, but the clear message is that such cases do exist.  The Court has thus confirmed that punitive damages can be awarded in the absence of an accompanying tort.

Therefore, the requirement of an independent actionable wrong can be met by either an independent tort, a breach of fiduciary duty or a breach of a contractual duty such as the duty of good faith or fair dealing.

3. Rationally Required to Punish the Employer and Meets the Objectives of Retribution, Deterrence and Denunciation.

Ordinarily, a Court simply puts an employee back into the position they would have been in but for the conduct of the employer. This is called “compensatory” damages. Punitive damages are different. They are ordered on top of compensatory damages resulting in the employee getting more than he would normally be entitled to and is therefore actually in a better position as a result. Punitive damages are essentially legal recompense that a defendant found guilty of committing a wrong or offense is ordered to pay on top of compensatory damages. They are meant as punishment for behaviour that is considered abhorrent.

This principle is explained in Fidler v. Sun Life Assurance Co. of Canada, [2006] SCR 3, “[W]hile compensatory damages are awarded primarily for the purpose of compensating a plaintiff for pecuniary and non-pecuniary losses suffered as a result of a defendant’s conduct, punitive damages are designed to address the purposes of retribution, deterrence and denunciation.”

For this reason, the Courts have to consider whether an employer has been properly punished and whether a punitive damage would help achieve this objective.

Punitive Damages Are Not Available In Human Rights Tribunal Decisions

The Human Rights Tribunal does not have jurisdiction to award punitive damages.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.