Law Times

Page 12 January 9, 2017 • Law Times www.lawtimesnews.com FOCUS Taken together with a stipu- lation in the attached agreement that Ballim would be paid in 26 bi-weekly installments, he found the contract had a fixed term. "In this contract, there is a start date, November 18, 2015. The plaintiff is to be paid every two weeks in 26 installments consistent with the accompa- nying email that expressly pro- vides for a one year duration," Miller wrote in his Oct. 13 judg- ment. "Although no precise end date is specified, one can read- ily infer the exact end date as being one year from November 18, 2015." "My client is obviously thrilled," says Fainzilberg. Although no appeal was lodged, he says the parties are yet to agree on the issues of costs and the precise damages due to Ballim for the 38.5 weeks of pay and benefits she missed out on after her termination. LT forceable contractual provision stipulating a fixed term of no- tice, or any other provision to the contrary, a fixed term em- ployment contract obligates an employer to pay an employee to the end of the term, and that obligation will not be subject to mitigation." The appeal court decision means the employee will get around $200,000 to compensate for the unpaid salary and ben- efits from the remaining three years of his contract. Fainzilberg relied on the Howard decision as counsel to the plaintiff in Ballim. His client Samina Ballim took up a position in the sales department at a pharmaceuti- cal company in November 2015, covering another employee's maternity leave. Although the contract made no mention of an expiry date, an email to Ballim attaching the contract offer stated that "it is a one year contract." Two months into the job, Bal- lim took an approved month- long unpaid leave of absence to visit South Africa for family reasons. However, after she returned four days later than agreed, the company terminated her em- ployment without cause in Feb- ruary 2016. Ballim had a new job by May 2016, earning $72,000, or $14,000 per year more than her previous salary. The employer argued in court that the agreement was for an indefinite term, and that Ballim should only be entitled to common law damages, which would be subject to the duty to mitigate. However, in a decision grant- ing summary judgment in fa- vour of Ballim, Ontario Superior Court Justice Sidney Lederman ruled that the email sent to Bal- lim formed part of the terms of the contract. Continued from page 8 Consider steering clear of fixed-term contracts: lawyer Employers impacted Continued from page 11 Titus Totan says many employers don't realize the consequences of faulty or miss- ing termination clauses until they end up in litigation. dentiality clause alone, without some positive attempt to dis- suade whistleblowers. You just wouldn't be able to rely on that part of an agreement," she says. "I think that's the more reason- able approach where there is truly no intent to circumvent any laws." The OSC formally launched its whistleblower program in July 2016, but it had been field- ing requests to formulate one for at least five years before that in the wake of the SEC's trailblaz- ing scheme. After several rounds of con- sultation, the final version of the OSC's program provides for a reward of between five and 15 per cent of monetary sanctions imposed on securities law viola- tors worth more than $1 million, up to a maximum of $5 million. To qualify, whistleblowers must provide original information voluntarily to the commission. Complicity in violations is not a bar to the reward, although the OSC warns it may reduce the whistleblower's cut, and it will not immunize them from en- forcement proceedings. Although the commission encourages potential whistle- blowers to take their concerns to the company's internal compli- ance mechanisms, the program does not require participants to do so. However, Wise says employ- ers would be well advised to set up their own whistleblowing procedures to maximize the chance that employees will come to them first. "It allows the employer time to investigate and potentially re- mediate the issue before it goes to the OSC," she says. If things have already gone too far to fix, Wise says compa- nies may receive some credit for self-reporting once potential se- curities law violations have been identified in-house. Wise says the anti-reprisal provisions in the Securities Act mean employers will have to tread particularly carefully where they have other reasons to discipline employees who end up covered by the whistleblower program. "I've heard concerns from employers who fear that an em- ployee on the verge of termina- tion will use the program to ef- fectively avoid termination," she says. LT RSVP for this free event www.tlaonline.ca/event/SmallFirmSoiree2017 by January 15, 2017 © 2016 Thomson Reuters Canada Limited 00238SJ-85919-CE Toronto Lawyers Association invites you Join us for a Soirée celebrating our partnership with Thomson Reuters Tuesday, January 17, 2017 Toronto Lawyers Association Library 361 University Avenue, 3rd Floor, Toronto 5:30 p.m. – 6:15 p.m. Wine and hors d'oeuvres 6:15 p.m. Welcome and Guest Speakers Mingle and Network Grand Prize Draw Our fi rst joint event will discuss how technology can be economically and effectively utilized in small law fi rms to grow a successful practice. We will also announce product discounting and programs for members offered as part of the agreement to assist both small law fi rms with 1-3 lawyers and those starting their own practice. GUEST SPEAKERS The Honourable Justice Colin L. Campbell, Q.C., "Improving Technology in Law Firms and in the Courts" Monica Goyal, entrepreneur, lawyer, and innovator of democratic legal solutions for businesses and individuals #TRTLAEvents

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