Enforcing a Termination Clause - Can You Sever a Partially-Illegal Termination Framework?
This pound of flesh which I demand of him is dearly bought; 'tis mine and I will have it. If you deny me, fie upon your law: There is no force in the decrees of Venice. -Merchant of Venice, Act IV, Scene 1. Employers, concerned about having to provide potentially prohibitive 'pay in lieu of reasonable notice' when dismissing employees, often require employees to sign contracts limiting their entitlements on termination. There are plenty of ways that employees can challenge these clauses following termination: A new employment contract for an existing relationship might be said to lack 'fresh consideration'; an old employment contract for an evolved relationship might be said to have lost its 'substratum'; a clause may be void for a conflict with the applicable employment standards legislation; etc. In the case of Waksdale v. Swegon North America Inc. , Ontario's Court of Appeal recently dramatically expanded the category of contracts void for con...