Law Times

Law Times • sepTember 17, 2018 Page 7 www.lawtimesnews.com Rescinding an accepted notice of resignation BY NIKOLAY Y. CHSHERBININ R esignation is a right personal to an employee. It can neither be imput- ed to nor imposed on the employ- ee and, thus, must be voluntary. The act of voluntary resignation has a subjective and an objective element. The former is represented by the em- ployee's intention to sever the employ- ment relationship, while the latter is manifested by an act resulting from that intention, which may consist of a written or verbal notice of resignation or con- duct. In English v. Manulife Financial Corporation, 2018 ONSC 5135, the On- tario Superior Court considered the is- sue of whether an employee can rescind a notice of resignation after it has been ac- cepted by the employer. The court determined that the employ- ee is precluded from resiling an accepted notice of resignation and explained that, in those circumstances, the employer would not have to show detrimental reli- ance on it. In English, Elizabeth English began her employment with Manulife Financial Corporation's predecessor, Standard Life, in March 2016. On Sept. 22, 2016, English informed her supervisor, Ramnath, of her intention to retire effective Dec. 31, 2016, and pro- vided him with a written notice of resig- nation. On Oct. 11, 2016, English decided to withdraw an accepted resignation and verbally informed Ramnath of her inten- tion. Ramnath acknowledged English's request to rescind her notice of resignation, but he did not indicate his acceptance of it. Ultimately, on Nov. 25, 2016, Manulife advised Eng- lish that it would honour her notice of resignation. English continued to work until Dec. 12, 2016, at which point Manulife advised that she need not come back to work. In response, English launched a wrongful dismiss- al lawsuit, seeking 16 months' salary in lieu of notice. At the time of her dismissal, English was 66 years old, served as a senior customer re- lationship manager and earned $128,000 per annum. The court adjudicated English's claim by way of a summary judgment motion and dismissed her action, without costs. The central issue before the court was whether English could resile from her valid notice of resignation such that she could rescind it effectively at any time right up until Dec. 31, 2016. A valid and enforceable resignation must be clear and unequivocal. To be clear and unequivocal, the resignation must objectively ref lect an intention to resign or conduct evincing such an inten- tion. Whether words or actions equate to resignation must be determined contex- tually. The crux of the inquiry is whether the employee exercised a sufficient degree of independent judgment in the circum- stances. In the present case, the mo- tions judge found that English was neither induced nor co- erced to submit her notice of resignation. She typed up the notice herself and submitted it at her own volition. Under the circumstances, a reasonable person, viewing the matter objectively, would have un- derstood that English volun- tarily resigned. At the motion, English ar- gued, albeit unsuccessfully, that an employee may resile from a resignation provided the employer has not relied upon it to its detriment. In support of this proposition, English relied on the Court of Appeal for Ontario's de- cision in Kieran v. Ingram Micro Inc., 2004 CanLII 4852. The motions judge did not heed Kieran, described the sen- tence that English relied on as obiter dic- tum and explained that the "law . . . has evolved, and is now more a ref lection of basic contract law." Relying on the Nova Scotia Court of Appeal decision in Kerr v. Valley Volkswagen, 2015 NSCA 7, which was followed by courts in Ontario and New- foundland and Labrador, the motion judge explained that whether or not the employer relied upon a resignation notice to its detriment is only relevant in cases where the employee's offer of resignation has not been accepted. Once the resigna- tion has been accepted, the employer's detrimental reliance upon the resignation is irrelevant. The motions judge's decision was grounded in the basic principles of con- tract law: offer and acceptance. English's offer in the form of a notice of resignation and Manulife's acceptance of that offer crystalized an agreement that formed the basis of the parties' con- tract to terminate the employment rela- tionship. English highlights a clear demarca- tion between two separate legal scenarios. First, the employee is entitled to rescind his or her resignation prior to either its acceptance or detrimental reliance on it by the employer. Second, if the employer has accepted a valid resignation, the em- ployee is precluded from resiling from it and there will be no dismissal, wrongful or otherwise. English reminds employees that em- ployers' obligation to pay severance at dismissal as well as their right to wrong- ful dismissal damages gets extinguished at the time a valid notice of resignation is accepted. Prudent employers should refrain from snapping up a notice of resigna- tion and be mindful that the question of whether a resignation is valid, clear and unequivocal requires a fact-driven assess- ment of the employee's conduct and all relevant circumstances of the particular case, which the court will scrutinize. LT uNikolay Chsherbinin is an employment and immigration lawyer and author of The Law of Inducement in Canadian Em- ployment Law. He can be reached at 416- 907-2587 or by visiting nclaw.ca. The case against a right to be forgotten BY RYDER GILLILAND T here is no right to be forgotten in Canada. In other words, there is no general right to have information about oneself de-listed or de-indexed from search engine results. Nor should there be. The Office of the Privacy Commissioner of Canada would disagree with this statement, having indicated that that Canadian privacy law can be interpreted to include a right to de-index search results with respect to a person's name that are inaccurate, incomplete or outdated. The privacy commission has, however, undertaken a consultation and call for essays, which suggests a rec- ognition of the fact that the existence, scope and, more fundamentally, desirability, of a general "right to be for- gotten" should be debated. Europe has recognized a right to be forgotten. In 2014, the European Court of Human Rights ruling in Google Spain found that under then-existing Euro- pean data protection laws, Google had to delete "inad- equate, irrelevant, or no longer relevant" search results when requested to do so by a member of the public. Google has since received 720,855 requests to del- ist 2,735,086 uniform resource locators, commonly known as URLs. Noteworthy from a news-gathering perspective is that 18.3 per cent of the requests relate to the "news" category. When one drills down on the "news" category, one finds that 18 per cent of the re- quests within that category relate to "crime" and an- other 18 per cent relate to "professional wrongdoing." The unsurprising takeaway is that people do not want news stories relating to their past crimes or professional misdeeds easily accessible online. When the de-indexing requests are denied, litiga- tion often ensues. European cases making headlines in recent months include the Supreme Administrative Court of Fin- land ordering Google to remove links to stories about an individual imprisoned between 2012 and 2017 for "diminished responsibility for murder" and the U.K.'s High Court of Justice ordering Google to de-index in- formation about a businessman who had received a six- month sentence relating to a hacking offence. Not all de-indexing requests are allowed by Europe- an courts. The High Court refused to order de-indexing in respect to a businessman who had been sentenced to four years imprisonment for a fraud offence, and the European Court of Human Rights dismissed an appli- cation by brothers who had been convicted in 1993 of murdering a popular actor to have reports of the murder anonymized. Lessons from the European experience to date in- clude that the recognition of a general right to be forgot- ten will inevitably be followed by a f lood of de-indexing requests and that many of these requests come from persons trying to hide criminal or professional wrong- doing. In the face of what is happening in Europe and before taking steps to implement a right to be forgotten in Canada, we should ask whether privacy laws should be invoked to obstruct access to public records. There is good reason to think that they should not. First, in this age of accusations of "fake news" and deliberate distortion of the public record, the preserva- tion of an accurate historical record is at least as impor- tant as it has ever been. It is undesirable, and arguably unconstitutional, to make search engines responsible for applying a discretionary test to determine what parts of the public record should be publicly accessible. As a rule, search engines will have little interest in the underlying content, and de-indexing will be the path of least resistance. Cases will usually only get litigated if the de-indexing request is denied. Second, as noted, a substantial portion of de- indexing requests, particularly as they relate to links to news stories, involve criminal records or profes- sional misconduct. These are matters that our society does not treat as private. Professional colleges keep publicly accessible records of disciplinary findings. Criminal cases are tried in the public eye, and con- victions result in criminal records. The publicity is deliberate. It protects the public interest. There may be a case to be made for de-indexing in specified instanc- es, for example, where someone has had their criminal record suspended by the parole board because "the conviction should no longer ref lect adversely on their character," but this is different than a broad and f lex- ible right to be forgotten applied through exercise of discretion. In the case of suspended record, it would be the parole board, not the search engine, that has made the determination that the criminal record should no longer be part of the individual's public record. Third, a right to be forgotten is unnecessary and undesirable, as existing laws protect against unlaw- ful content. In advocating for a right to be forgotten, the Privacy Commissioner of Canada has listed as categories of information that should be considered "not relevant" for de-indexing purposes information that "contravenes a publication ban, is defamatory, or violates copyright, etc." The law in each of these areas is well developed. If information contravenes a publi- cation ban, for example, the publisher is liable to im- prisonment under the Criminal Code. Publication ban violators, defamers and copyright infringers can and should be brought to task under the existing legal frameworks. These areas of law are the domain of the courts, not search engines or, for that matter, the pri- vacy commissioner. There may well be certain types of information that should be de-indexed. Rather than focusing on a broad right to be forgotten, the focus should be on developing a narrow list of situations where de-indexing ought to be required. This would be a measured, certain and ef- ficient approach. LT uRyder Gilliland is a partner at DMG Advocates LLP and the current president of the Canadian Media Lawyers' Association. u SPEAKER'S CORNER COMMENT Labour Pains Nikolay Y. Chsherbinin

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