Why litigating employment law is like standing on shifting sand

Skip to Content News Archives Economy Defence Energy Oil & Gas Renewables Electric Vehicles Mining Commodities Agriculture Real Estate Mortgages Mortgage Rates Finance Banking Insurance Fintech Cryptocurrency Defence Work Wealth Smart Money Wealth Management Investor Personal Finance Family Finance Retirement Taxes High Net Worth FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials More Innovation Information Technology FP500 Podcasts Small Business Lives Told Tails Told Shopping Financial Post Store Obituaries Place a Notice Advertising Advertising With Us Advertising Solutions Postmedia Ad Manager Sponsorship Requests Classifieds Place a Classifieds ad Working Profile Settings My Subscriptions My Offers Newsletters Customer Service FAQ News Economy Energy Mining Real Estate Finance Defence Work Wealth Investor FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials This advertisement has not loaded yet, but your article continues below.HomeLegal PostWorkWhy litigating employment law is like standing on shifting sandEmployment law changes. It changes frequently, and the changes can be substantiveLast updated 34 minutes ago A beach goer leaves footprints in the sand on the beach as the sun goes down over the Spanish costal city of Marbella on September 1, 2009. Photo by SASCHA SCHUERMANN/AFP/Getty ImagesBy Howard Levitt and Peter CareyTHIS CONTENT IS RESERVED FOR SUBSCRIBERS ONLYSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman, and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.SUBSCRIBE TO UNLOCK MORE ARTICLESSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.REGISTER / SIGN IN TO UNLOCK MORE ARTICLESCreate an account or sign in to continue with your reading experience.Access articles from across Canada with one account.Share your thoughts and join the conversation in the comments.Enjoy additional articles per month.Get email updates from your favourite authors.THIS ARTICLE IS FREE TO READ REGISTER TO UNLOCK.Create an account or sign in to continue with your reading experience.Access articles from across Canada with one accountShare your thoughts and join the conversation in the commentsEnjoy additional articles per monthGet email updates from your favourite authorsSign In or Create an AccountHeraclitus of Ephesus (c. 535 to c. 475 B.C.) is known for the doctrine that essentially states “the only constant in life is change.”He must have been an employment lawyer in Ancient Greece.We are frequently asked by both employers and employees why, with an army of lawyers working on employment law issues, we can’t give more concrete advice (i.e. advice without qualifications). We are asked, haven’t you figured this out already?This advertisement has not loaded yet, but your article continues below.Here’s the problem: employment law changes. It changes frequently, and the changes can be substantive. A large part of what we do is simply keeping abreast of new developments in the law that will affect our clients. These can occur right in the middle of a case and radically change its outcome.FP Work touches on HR strategy, labour economics, office culture, technology and more.By signing up you consent to receive the above newsletter from Postmedia Network Inc.A welcome email is on its way. If you don't see it, please check your junk folder.The next issue of Work will soon be in your inbox.We encountered an issue signing you up. Please try againA wise old lawyer once said that litigating is like standing on shifting sand and that a smart litigator constantly re-examines the premises upon which they build their case.It has happened again! This past summer, the Ontario Court of Appeal released two decisions that clarified several issues in employment law. Now that these issues have been dealt with, we must examine all of our cases to ensure that we are correct in our assessments of their outcomes.The first case dealt with the issue of the equity component of income in a wrongful dismissal situation.Many employees receive not only a salary but also some form of equity in their company as part of their total compensation. This equity component is usually set out in a separate “plan” rather than in the employment agreement.This advertisement has not loaded yet, but your article continues below.The Court of Appeal clarified that, unless very specific language and terms are set out in the plan, the equity portion of the employee’s compensation must be paid if it would normally vest during the notice period, regardless of what the plan says.Therefore, if you are an employee you need to know what your rights are regardless of what it says in your equity plan. If you are an employer, you need to know what your potential liabilities are and how to draft plans that are legally enforceable.The second case that was released from the Court of Appeal clarified the law concerning the wording of termination clauses. For a number of years, there was conflicting case law at the trial level as to whether certain language in the termination clauses of employment contracts was legally enforceable.In general, the trial courts were bending over backwards to rule that termination clauses were unenforceable. It reached the point where it was very difficult to give assurances to employers that any termination clause would be upheld by the courts.The Court of Appeal has put the brakes on this trend. Without going into technical details, the Court set out that certain language can restrict common law notice periods (although never less than what is required under the Employment Standards Act).This advertisement has not loaded yet.This advertisement has not loaded yet, but your article continues below.Yet again, employers need to know what their potential liabilities are and how they can draft termination clauses that will be legally enforceable. And employees need to know if the termination clauses in their employment contracts are enforceable so they can make appropriate plans.The problem is that cases generally take three years to get to a trial — although few cases end up going that far, with most settled before then. Still, the opinion you receive at the beginning of a case might change before it ends because of some unanticipated court judgment.In all cases, clients need to deal with lawyers who are aware of the latest developments in the law and stay rigorously on top of them. Because, as another great philosopher stated, “The times they are a’ changin’.”And they will continue to!Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practises employment law in all provinces and is the author of six books, including the Law of Dismissal in Canada. Peter Carey is a partner at Levitt LLP.This advertisement has not loaded yet.Notice for the Postmedia NetworkThis website uses cookies to personalize your content (including ads), and allows us to analyze our traffic. Read more about cookies here. By continuing to use our site, you agree to our Terms of Use and Privacy Policy.