Law Times

January 22, 2018

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BY ALEX ROBINSON Law Times S ome lawyers say a recent Court of Appeal decision concerning the interpreta- tion and enforceability of termination clauses may actually bring more confusion than clarity to the issue. In Nemeth v. Hatch Ltd., Jo- seph Nemeth appealed the dis- missal of his action against his for- mer employer for damages arising from the termination of his em- ployment without clause. Hatch Ltd. had employed Nemeth for 19 years before he was fired. He was given eight weeks no- tice, 19 weeks severance pay and continued benefits during the no- tice period. While this was consistent with the appellant's minimum entitle- ments under the Employment Standards Act, Nemeth argued that the termination clause in his contract was deficient because it did not specifically exclude his common law rights. The Court of Appeal found that the termination clause did not need to explicitly state the parties intended to limit Nemeth's com- mon law notice entitlement and that the clause's plain language made the parties' intention to do so clear. "It suffices that the parties' in- tention to displace an employee's common law notice rights can be readily gleaned from the language agreed to by the parties," wrote Justice Lois Roberts in the deci- sion. Jennifer Bernardo, a lawyer with Baker McKenzie LLP, says the decision is the latest that shows the court is willing to relax some of the interpretive rules regarding termi- nation provisions. She says there have been a num- ber of Court of Appeal decisions in recent years that have taken a more f lexible approach to the en- forceability of termination clauses. While there might be some benefit for employers in the f lex- ibility the court showed in Ne- meth, it might not bring any more certainty for employers drafting clauses, she says. "The benefit of rules is that you know that if you follow the rules, Law society exploring governance reforms BY ALEX ROBINSON Law Times I f it were up to Paul Schabas, the Law Society of Ontario's governing board would be smaller. A task force the LSO treasurer convened to look at governance issues is expected to introduce a report at Convocation in Febru- ary that will kickstart a discussion about the size and composition of the board and how it functions, says Schabas. "No other comparable organ- ization that we can find virtually in the world has a board the size of our law society Convocation," says Schabas. The law society's board is cur- rently made up of 40 elected law- yer benchers, five elected parale- gal benchers, eight appointed lay benchers, life benchers and ex- officio benchers, including former treasurers and attorneys general. Of the 40 elected lawyer benchers, 20 are from Toronto and the other half are elected from outside the city. LSO's Convocation can often have more than 60 benchers in at- tendance, which some say makes the body too unwieldy to properly function. In comparison, the Law Society of Alberta has just 24 benchers, including four lay benchers. The Law Society of British Columbia has up to 31 benchers. Schabas, who as treasurer does not have a vote at Convocation, says a smaller board could operate much more efficiently. "The board is more engaged if it's smaller," he says. "It's easier to reach consensus on decision-making, on challen- ging issues and there is more ac- countability as well." Some have questioned whether the board should operate more as a corporate board would. Others have challenged wheth- er benchers should be elected at all or if it would make more sense for them to be appointed based on DANGERS FACING YOUTH Lawyers can help with protecting children P7 FOCUS ON Condominium Law P8 PM #40762529 $5.00 • Vol. 29, No. 3 January 22, 2018 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M HELPING JURORS Study looks at mental health supports P5 See Employers, page 4 Heather Ross says she thinks the Law Society of Ontario's board could be shrunk to 20 benchers. See Board, page 4 Clarity important for employers when drafting contracts Ruling on termination clauses causes confusion Jennifer Bernardo says a recent Court of Appeal decision is the latest in a number that signals a shift in the court's approach to termination clauses. Photo: Robin Kuniski Follow & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM THE ULTIMATE SOURCE For Today's Legal Profession | 416.609.3800 | 1.800.387.5164 Online Free preview Subscribe today! ONE-YEAR SUBSCRIPTION INCLUDES: • 10 issues print and digital editions • FREE exclusive access to Canadian Lawyer digital edition archives • FREE weekly e-newsletter: Canadian Legal Newswire CHANGEMAKERS HUMAN RIGHTS, ADVOCACY AND CRIMINAL IN-HOUSE COUNSEL GOVERNMENT/NON-PROFITS/ASSOCIATIONS CORPORATE-COMMERCIAL PUBLICATIONS MAIL AGREEMENT # 40766500 SPECIAL SECTION: CANADIAN LAWYER 4STUDENTS P.49 $ 1 0 A u g u s t 2 0 1 7 making an impact meet the canadian lawyers and who are judges Untitled-1 1 2018-01-18 3:08 PM

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