When is a Release effective?  A decision out of Ontario has received a lot of press this week: Rubin v. Home Depot Canada Inc., but it does not seem to change the law much in my opinion.  Having said that a clarification and/or restatement of the law is never a bad thing.  Also, it is good when such cases get press because both employers and employees get informed.

A long term employee nearing retirement age was fired without warning.  Home Depot offered him more than the statutory minimum but not nearly what he would get for comm on law damages for wrongful dismissal.  He was asked to sign the release right away.  Shortly after signing, the employee realised he made a big mistake.
Anytime that someone accepts money for the settlement of a legal dispute they will be asked to sign a release.  This is standard operating procedure.  In employment law, however, releases often get challenged.  The reason is because terminations tend to be very emotionally charged experiences.  The decision to terminate can be a long time in the making, but the employees are not usually part of that process .  Employees are often surprised and shocked when they find out.  Since their employment affects their ability to pay their rent, buy food and live their life, it can be a traumatic experience.  If an employee is asked to sign a release at the same time as being terminated then they may not be thinking clearly.  The release can be challenged.

Employers can be a bit too quick to ask for a release from their employees.  Perhaps they want the matter all tied up quickly with no loose ends.  Perhaps they are also ill informed about the law or stressed themselves about the termination process.  Many small employers do not have human resource departments or a lawyer on speed dial.  They find firing an employee very stressful (although not as stressful as the one being fired).  I am not sure this would apply to Home Depot, however.  Large corporations with professional human resource advisers and their own lawyers should really know better. 

The Court looked at the following factors to determine if the release was unconscionable:

1. what is grossly unfair
2. was there legal advice
3. overwhelming imbalance of bargaining power
4. other party knowingly taking advantage of this vulnerability.

The Court overturned the release and awarded a generous 12 months severance package, in addition to the 28 weeks already paid by the employer.

New Mortgage Rules -- Real Estate Law

New Mortgage Rules were announced this week in Canada.  The new rule is that mortgages that are insured through CMHC must have an amortization of 25 years or less.  What does it mean to you?  If you have an existing mortgage with an amortizaton of 30 or 35 years then you are not likely affected.  You can renew your existing mortgage under the amortization previously agreed to, but if you refinance (increase the amount of your mortgage at a later date) you will need to come under the new rules.  If you have already signed your real estate contract, you are likely fine. The government as of now seems to be implementing this to deals signed after the announcement.  If you are putting down more than 20% then your mortgage does not require CMHC insurance, therefore, the new rules do not apply to you.  This will only affect new mortgages insured through CMHC.

The real estate Lawyers at Courtney Aarbo can help you with these and any other real estate law questions.  Please do not hesitate to call us at 403-571-5120.

Employment Law questions: can post-termination conduct constitute just cause?  To answer this question one must distinguish between after-acquired knowledge and post-termination conduct.  After acquired knowledge of misconduct that exists at the time of dismissal may be relied upon in support of summary dismissal.  Post-termination conduct can only be relied upon in very limited circumstances.

This principle was recently confirmed in Gillespie v. 1200333 Alberta Ltd, 2012 ABQB 105.

In this case the employee was terminated for personality conflicts at work.  It was later discovered that she breached the non-dislcosure agreement she signed.  The Court found that the post-termination breach of the agreement did not constitute grounds to support just cause.  Nevertheless, it also stated that the non-disclsoure agreement still had meaning.  It drew a distinction between the employment contract and non-disclosure agreement.  By doing so, the court was saying that the employer could not use the post-termination breach of the non-disclosure to justify just cause, but it be used to form a separate action on the breach of that agreement.

In R. v. Tse, 2012 SCC 16, the Supreme Court of Canada considered whether a wiretap provision of the Criminal Code was constitutional.  The provision states that a peace officer can intercept a private communication without getting authorization from a judge in situations that are urgent.  It was argued that this provision violates the right of Canadians to be free from unreasonable search or seizure under the Charter of Rights and Freedoms.

In this case, the police chose to intercept telephone calls without obtaining permission from a judge after they were contacted by a woman whose parents had been missing for three days.  She told them that she had received a call from her father asking for money and believed that her parents had been kidnapped.  The police obtained valuable information from the wiretap before they obtained an authorization from a judge.

The Court found that the provision does in fact strike a reasonable balance between an individual’s right and society’s interest in preventing serious harm.  However, the provision does not include any means to hold the police accountable after the interceptions have been made.  The police are not required to provide notice to persons whose communications are intercepted.  In addition, they do not need to report to Parliament on the use of the provision like they are required to do when they receive authorization from a judge. For these reasons, the provision was found to be unconstitutional.   Parliament has been given twelve months to redraft the provision to make it constitutionally compliant. 

Living will or personal directive?

A living will is a term for what we in Alberta put in a "personal directive".  This document that gives the agent we choose the authority to make medical choices for us if we lose the ability to make those choices for ourselves.  The living will portion of the document can give detailed direction to the person that we choose on the medical care we do want, or do not want.  Many people do not want their life prolonged if they are not here mentally or there is no chance of a physical recovery.  It goes without saying that it is extremely important that the document reflect your personal wishes accurately.  To make a personal directive you need to be over 18 and you need mental capacity at time you sign the personal directive.  Personal directives have to be in writing, dated, signed and witnessed by someone who is not the agent, your spouse, common law partner, or the spouse or common law partner of your agent.

Privacy legislation allows you to sue a company for breaching your right to privacy, but what do you do when a person looks into your private affairs? The tort of "intrusion upon seclusion" was recently discussed in a case before the Ontario Court of Appeal where a bank employee repeatedly accessed the plaintiff's bank records. The Court held that the tort exists in Canadian law and will provide a remedy for breaches of privacy by individuals even if there is no pecuniary loss. See: Jones v. Tsige.

Although the Honda Canada Inc. v. Keays 2008 SCC 39 decision is not a recent decision at the time of posting this comment, it is a still an extremely important one.  Employment lawyers get asked all the time about aggravated damages and bad faith conduct by employers when employees are terminated.  The previous leading case, the Wallace decision of 1997, had  evolved over time.  The SCC revisited the principles and clarified that decision in the Honda decision.

The Court affirmed the long standing principles of what constitutes reasonable notice of termination, courts should consider the character of the lost employment, the employee's length of service, the age of the employee, and the availability of similar employment having regard to the experience, training and qualifications of the employee. 

Generally, damages are not available for the actual loss of a job or for pain and distress as a consequence of being terminated.  Nevertheless, damages resulting from the manner of dismissal will be available where the employer engages in conduct during the course of dismissal that is "unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive".  These damnages should be awarded through an award that reflects actual damages rather than by extending the notice period. 

It went on to clarify aggravated and puntive damages in the employment law context.  Specifically, it stated that a breach of human right legislation caould constitute an actionable wrong leading to puntive damages.