In Oudin v. Le Centre Francophone de Toronto, The
Ontario Superior Court dismissed a motion for summary judgment
brought by an employee who alleged that the termination provision
in his employment agreement was unenforceable. This provision
limited his entitlement to notice of termination to the minimum
required by employment standards legislation. The court did find
that a related provision in the employment agreement violated the
legislation and was invalid; however, the judge held that the
invalid provision could be excised pursuant to a severability
clause in the agreement without affecting the integrity of the
remainder of the agreement and therefore the termination provision
The employee worked for Le Centre Francophone de Toronto
(CFT), a non-profit organization, since late 2000.
He was a perpetual one-year contract employee until June 15, 2007
when he signed an indefinite term employment agreement. The
Agreement included three provisions which became the focus of the
lawsuit in that they allowed CFT to terminate the employee in a
situation where they were in "continuing incapacity considered
permanent" (clause 4).
The employee relied on Machtinger v. HOJ Industries, In
which the SCC stated that "[i]f a clause in an employment
contract is rendered 'null and void' by operation of
employment standards legislation, then it is null and void for all
purposes, and cannot be used as evidence of the parties'
intention to displace the common law presumption of reasonable
notice." The employee submitted that since a provision of the
contract violated the code by including a disability,
"continued incapacity considered permanent", as grounds
for termination, then the notice provisions were also invalid..
While the court agreed section 4 violated the code, they relied
on a unique severability provision to save the notice provision
– that provisions directed a court to eliminate any illegal
provisions in order "save" the rest of the contract. The
court found this was enough to show the parties intended the
agreements to be valid, despite code violations that may arise.
Written with the assistance of Andrew Bigioni, articling
About Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global law firm. We provide the
world's preeminent corporations and financial institutions with
a full business law service. We have 3800 lawyers and other legal
staff based in more than 50 cities across Europe, the United
States, Canada, Latin America, Asia, Australia, Africa, the Middle
East and Central Asia.
Recognized for our industry focus, we are strong across all the
key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).