Edmonton Employment Law

There's a piece published on CBC News Opinion this week, arguing that Canada should invoke the notwithstanding clause to facilitate the prosecution of returning ISIS fighters.  The piece is authored by Brian Cox, a former US military lawyer and prosecutor, currently at Queen's Law as a visiting scholar. And his suggestion is one that ought to be rejected out of hand. Put briefly, he's arguing that the self-imposed constraints on our domestic legal system shouldn't impact our prosecution of offences that are committed overseas; that carrying out prosecutions under the auspices of those constraints makes these prosecutions unduly difficult; and that the protections aren't necessary when it relates to offences committed outside the country, because the kinds of government overreach against which the Charter protects aren't really concerns when we're talking about overseas conduct. The argument is specious, for a few reasons, but the one of the most impor...

Last week, the Ontario Court of Appeal released its decision in Manastersky v. Royal Bank of Canada . Mr. Manastersky was entitled to an 18 month notice period, and the appeal turned on certain entitlements under a variable compensation plan known as the 'Mezzanine Carried Interest Plan', in which he participated for the last ~9 years of his employment. The Mezzanine CIP is complicated.  If I'm understanding it correctly, RBC established two investment funds under the plan, and allocated a certain number of 'points' to Mr. Manastersky, which would result in entitlements based on the growth of those funds over time.  The plan also contemplated the possible establishment of a third fund after the investment period for the first two ended - which, under the terms of the plan, would begin automatically, unless otherwise terminated by RBC. Mr. Manastersky was dismissed in February 2014, when the second fund was approaching the end of its investment period.  Around ...

In a recent decision from the Alberta Court of Queen's Bench, Justice Mah dealt with an unusual scenario : Last year, Orbis Engineering Field Services was sold, in a share transaction, to Spark Power Corp.  Its former principal and CEO, Mr. Kassam, was kept on as an employee until he was dismissed at the end of April, 2019. In the same time frame, a number of other Orbis employees departed, and some of them set up a competing business, Taifa Engineering Ltd.  Among them, Mr. Saleh actually set up the business (including certain preparatory steps while he was still at Orbis, which would not generally be improper); Mr. Mohamed, who was involved in the initial setup of the corporation, but claims that he renounced his shares and directorship shortly after incorporation and well before Taifa began doing business, and has had no connection with the corporation since that time (though he was dismissed by Orbis after Taifa began operating); Mr. Steyn, who resigned his employment ...

A broken engagement had some unfortunate unforeseen consequences to a woman who was wrongfully dismissed, seven years later. The Facts Ms. Theberge-Lindsay was employed on a continuous basis in the dental office in Stoney Plain, Ontario, as a dental hygienist, from 1993 to 2012, before she was dismissed without cause. In or about 1999, the employer restructured and had her sign an employment agreement with a management services corporation. She received nothing but continued employment for that signature, and there was no change to her duties. In March 2005, she provided the employer a notice of resignation, effective July 5, 2005, because she had become engaged and intended to relocate to Guelph, where she had obtained replacement employment. In May, the engagement ended, and she advised her boss that she intended to stay. The only statement in either decision about the employer's response to that was that the Plaintiff testified that he "was pleased to hear it as he did ...

There's a fairly common scenario in employment law:  An employee leaves his or her former employer, and either joins a competitor or starts up a competing business. The default position is that most employees are perfectly entitled to engage in competitive activities, including but not limited to soliciting customers of the former employer.  Understandably, a lot of employers take issue with this, and argue that there is some obligation on the employee to not  do so. These obligations can arise from a couple different places.  Firstly, employers often require employees to sign restrictive covenants, limiting their ability to compete and/or to solicit customers and/or other employees of the business.  These agreements can be difficult to enforce, but in certain circumstances, reasonable restrictions may be enforceable. Secondly, certain kinds  of employees owe "fiduciary" obligations to an employer, including an obligation not to compete 'unfairly'....

In 2011, the Alberta Court of Appeal decided the case of Globex Foreign Exchange Corporation v. Kelcher , dealing with the enforceability of non-competition agreements under certain circumstances. Two of the defendants, Kelcher and Oliveiro, had entered into these non-comps during the course of their employment relationships, without any 'fresh consideration'.  The third, MacLean, entered into it at the commencement of his employment relationship.  MacLean was wrongfully dismissed; he entered into competition with Globex, and Kelcher and Oliveiro resigned their positions to join him. The absence of fresh consideration made Kelcher's and Oliveiro's agreements unenforceable; this issue has been explored indepth in the Ontario appellate case law, and the majority of the Alberta Court of Appeal decided to follow the Ontario jurisprudence.  (Justice Slatter, in dissent, argued that the Ontario case law gets it wrong.) However, the question of MacLean's agreement wa...