Law Times

Page 6 July 27, 2015 • Law Times www.lawtimesnews.com COMMENT Specify plans for Halton rovincial government spending on court construction has varied wildly over the years. From just $10.6 million in 2003-04, the year the Liberals took power from the former Conservative government, to almost $300 million in 2011-12, it's clear that spending on court facilities has trended upward over the last decade. More recently, spending has fall- en with projections for the current year at $77.1 million. The decrease follows a few years of significant investments in new courthouses, par- ticularly in Durham, Elgin, Waterloo, Quinte, and Thunder Bay, Ont. In fact, spending on court construction was almost $35 million in 2002-03, the last full year the former Conservative government was in power, and had fallen to just $10.3 million in 2005-06. The current numbers, then, look pretty good by comparison. It's arguable, of course, that the higher spending in recent years was simply a case of the government needing to address the backlog of projects that had emerged as a result of the lower expenditures in the past, as saving money today often means deferring expenses to the future. Nowhere is that more true than in Halton Region, where lawyers say court facilities are far out of date given the area's fast-growing population. With concerns about mould in parts of the courthouse emerging, it's clear there are significant problems there. For its part, the province has downplayed the health and safety concerns about the mould but says addressing the facility issues in Halton is a priority for the Ministry of the Attorney General. Let's do away with mental gymnastics in employment agreements ourts have devised many meth- ods for invalidating termination provisions that incorporate the minimum requirements of em- ployment standards legislation. That's because judges recognize the in- herent unfairness of such provisions. An employee with more than eight years of service working for an Ontario-regulated employer with an annual payroll of less than $2.5 million gets a maximum of eight weeks' notice or pay in lieu regardless of the actual years of service. It's easy to see the unfairness of that, particularly with older employees or those with significant years of service. Employees working for Ontario- regu- lated employers with an annual payroll of $2.5 million or more get a maximum of 34 weeks, something that can result in unrea- sonable termination packages. Courts do their utmost to nullify em- ployment standards termination provi- sions. Clearly, they'll nullify any provision that would result in an employee receiving less than the minimum. Courts have engaged in mental gym- nastics by nullifying termination provi- sions that don't result in an employee receiving less than the employment stan- dards minimum if they'd result in a vio- lation of the standards had the employee been on the job for a longer period of time. Courts have recently nul- lified employment standards provisions that otherwise ap- pear to satisfy employment standards requirements but don't refer to the continua- tion of benefits mandated by the legislation. In one case, the court nullified a provision as it didn't refer to benefits. It stat- ed that the corporation might terminate the employment without cause at any time by providing notice or payment in lieu and/or severance pay in accordance with the Employment Standards Act. It upheld another clause stating the em- ployer might terminate the employment without cause for any reason upon the pro- vision of reasonable notice equal to the re- quirements of the applicable employment or labour standards legislation. It said that by signing, the employee agreed that upon receipt of the entitlements in accordance with the legislation, no further amount would be due and payable whether under statute or common law. Courts have also nullified employment standards provisions that are ambiguous by, for example, referring to notice instead of notice and severance pay for employers with a payroll of $2.5 million or more. It's time to do away with these mental gymnastics. In most cases, there's an inequality of knowledge and bargaining power between employers and employees. Employers understand the meaning of these termination provisions. They employ these provisions with the express in- tention of frustrating the com- mon law rights of employees. There's nothing wrong with that as long as prospective em- ployees fully understand the substance of what they're agreeing to. However, most prospective employ- ees know little about common law rights. They look upon these termination provi- sions in a benign, if not in a favourable, manner. After all, these provisions state that their future employer will abide by employment standards laws. That sounds like a good thing. But lurking below these provisions is a trap for the uninformed. These provisions appear to give some- thing to the employee, whereas the reality is they're taking away valuable rights. These termination provisions shouldn't be enforceable unless they provide full and easily understandable information as to what the prospective employee is giving up. It shouldn't be enough for an employer to disclose that the employee is agreeing to employment standards or is giving up common law rights. Employers should provide full disclosure to the point where employees can easily understand precisely what they're giving up: the difference be- tween what employment standards would provide as compared to common law. It isn't enough to say that people shouldn't sign agreements unless they understand what they're signing. Forcing people to seek legal advice before accept- ing a job offer is neither fair nor practical. Fairness dictates that the courts should nullify these termination provisions un- less they meet a minimum threshold of disclosure in a comprehensible manner. Such a requirement wouldn't be a great leap. The Ontario Court of Appeal has set out this requirement in cases where employers attempt to inject a termination clause into an already-existing employ- ment relationship. There's no rationale for such a require- ment to apply only in situations where the employer injects a termination clause into an already-existing relationship but not to one imposed at the outset. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. ©2015 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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While the province deserves significant credit for the new courthouses it has built and its commitments to fa- cilities in Toronto and Brampton, Ont., it needs to be clearer about its plans for places such as Halton as well as n orthern Ontario , where there are also sig- nificant concerns about court infrastructure. It's a difficult balance, of course, as the province doesn't have a lot of money and there will always be calls to modernize all sorts of facilities. But as the calls for action in Halton grow louder, it's time for the government to go beyond saying the area is a priority to specify what it'll do and when it'll do it. — Glenn Kauth Social Justice Alan Shanoff C P

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