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An employee's clear and unequivocal waiver of common law reasonable notice remains enforceable following a transition to part-time employment.
An employee with approximately 30 years of continuous service was dismissed without cause from part-time employment.
The employer relied on a written employment agreement purporting to waive the employee's years of service and common law entitlement to reasonable notice, providing only statutory minimums under the Employment Standards Act.
The motion judge found the employee had not waived his years of service for statutory purposes but was bound by a 2006 waiver of common law notice entitlements.
The Court of Appeal upheld this decision, finding the waiver was clear and unequivocal, the 2013 transition to part-time employment constituted an amendment rather than a new contract, and there was adequate consideration for the amendments.
The court also rejected the employer's cross-appeal on mitigation, finding the employee had made reasonable efforts to secure comparable employment.
Net costs of $20,390 awarded to defendant after plaintiff failed to beat offer to settle.
Following a summary judgment motion in a wrongful dismissal action where success was divided, the court determined costs.
Although the plaintiff was successful on two of three critical issues, the monetary result was less favourable than the defendant's offer to settle.
Applying Rule 49.10(2), the court awarded the plaintiff partial indemnity costs up to the date of the offer, and the defendant partial indemnity costs thereafter, resulting in a net costs award of $20,390 payable by the plaintiff to the defendant.
Employer breached settlement agreement; employee awarded reasonable notice damages.
A pharmacist who was an employee, shareholder, and pharmacy manager sued her employer following the sale of the business and termination of her employment.
The court considered whether a May 30, 2011 settlement agreement resolving employment issues was enforceable and whether the plaintiff was required to sign a broader non‑competition and non‑solicitation agreement demanded by the defendant.
The court held that the May 30, 2011 agreement was enforceable and that the defendant breached it by failing to make agreed payments.
The plaintiff’s refusal to sign the expanded restrictive covenants did not constitute repudiation because those terms were not contemplated in the agreement.
The court awarded common law reasonable notice damages and dismissed the defendant’s counterclaim.
