The recent decision of the Ontario Superior Court in Buaron
v AcuityAds Inc.1 is a cautionary reminder for
employers: do not present the fundamental terms of employment to a
prospective hire without ensuring that it is clear that the
person's employment is conditional upon the execution of a
comprehensive employment agreement.
Joseph Buaron ("Buaron") was recruited by the
defendant, AcuityAds Inc. ("AcuityAds") from a
competitor. The key terms of employment (position, start date,
salary, vacation, probationary period and benefits) were discussed
in an interview and subsequently confirmed in a letter that did not
reference AcuityAds' standard employment agreement. However,
the email enclosing the letter did mention scheduling a time
"to come in and go through the contracts".
The day after resigning his position with the competitor, Buaron
received a fulsome employment agreement from AcuityAds, which
included a clause severely limiting the notice period in the event
of termination without cause. Having just resigned his current
position, Buaron felt compelled to sign the agreement.
Nine months later, Buaron's employment was terminated
without cause, with notice paid pursuant to the terms of the
employment agreement. Buaron subsequently commenced an action to
set aside the employment agreement and claimed damages based on
common law reasonable notice.
Decision of the Court
The Court found that an employment contract was formed when
Buaron received the letter setting out the key terms of employment.
The Court was not persuaded by AcuityAds' argument that
reference to "the contracts" in the email enclosing the
offer letter was a clear indication that the employment
relationship would be governed by a comprehensive agreement. As it
was not made clear that Buaron's employment was conditional
upon him executing AcuityAds' employment agreement and as no
new or additional consideration was provided when Buaron
subsequently signed the employment agreement, the Court held that
the agreement was unenforceable and did not limit Buaron's
As a result, the common law governed the notice period and the
Court awarded damages to Buaron based on four months of
compensation, in addition to payment of his legal fees.
What This Means for Employers
The result in Buaron serves as a valuable reminder to
employers. While it is perfectly reasonable to discuss key terms of
employment with prospective hires, employers should take care to
ensure that an offer isn't made to the employee which is
sufficiently detailed to allow a Court to find that an enforceable
contract was formed.
It is common in interview settings to discuss the terms of
employment – salary, position, duties, prospective start
date, etc. If, at the end of that discussion an employer asks the
employee if they are prepared to accept the job, and the employee
says yes, the employer runs the risk that a Court will find that an
enforceable agreement has been formed. The Court may be satisfied
that sufficient information about the employment has been provided
to allow the employee to make a decision, and there is offer and
Employers should ensure that the prospective hire is advised
that the offer of employment is conditional upon the execution of a
comprehensive employment agreement setting out the terms and
conditions that will govern the employment relationship. This
conditional aspect of the offer should be confirmed in any
subsequent communications to the individual and the only written
offer that should be provided is the fulsome offer that the
employer wants the employee to sign.
The foregoing provides only an overview and does not constitute
legal advice. Readers are cautioned against making any decisions
based on this material alone. Rather, specific legal advice should
1. 2015 ONSC 5774 [Buaron].
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
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