A NEW LOOK AT WORKPLACE LAW AS SEEN THROUGH THE EYES OF AN EMPLOYMENT LAWYER AND FORMER JOURNALIST. FIT FOR EMPLOYERS, EMPLOYEES, AND EVERYONE IN BETWEEN

Parlez-vous français? Non? Ahhh, c'est un petit problème...

Parlez-vous français? Non? Ahhh, c'est un petit problème...

Canada is a nation of many languages, but court decisions are issued primarily in English and French (a new legal movement towards 'plain language' has us all working hard to cut out the cold, unfriendly Latin that lawyers used to be so fond of).

While English may be the primary language of most Ontario court decisions, every so often a key French-language decision comes out that leaves bilingual lawyers in luck, and the rest of us scrambling for our well-worn high school French-English dictionaries. 

Kaihsu Tai\Wikimedia Commons

Kaihsu Tai\Wikimedia Commons

This is exactly what happened with a 2014 case called Paquette c. Quadraspec, 2014 ONCS 2431, which had the potential to vastly reinterpret the way severance pay was issued in Ontario.

To take a step back, severance pay is a legal entitlement from Ontario's Employment Standards Act ("ESA") that is owed to employees covered by the ESA in a specific set of circumstances - The employee must have been employed for five or more years, AND the employer must have a payroll of more than $2.5 million dollars, OR the employee must be part of a mass termination of 50 or more employees. 

If that sounds bulky, there's good reason for it. The requirement to pay severance pay goes above and beyond the legal requirements to pay termination pay, and thus only applies in special circumstances. When it does, especially for terminated employees who had been with their employer for decades, the employer can be left owing an extra six months worth of salary on top of termination pay, so it's not to be taken lightly. 

What does all of this have to do with the French language? Well, in a French-language decision (which was not widely translated outside of the Ontario Reports, Ontario lawyers' official digest), the Honourable Justice Kane chose to take a completely novel interpretation of what that payroll threshold meant. Here's what I wrote about the case in an earlier blog for Stancer Gossin Rose LLP:

However, a recent Ontario Superior Court decision from last year may have been a game changer. In Paquette c Quadraspec Inc.[3], the Plaintiff had worked for the Defendant and its predecessor company for almost 30 years before he was terminated without notice in 2011. The Plaintiff argued that the termination clause in his employment agreement was invalid, and the Defendant disagreed.
When analyzing the Plaintiff’s eligibility for severance pay, the Court took a unique approach by including the payroll figures of the company’s Quebec employees along with the Ontario figures, which brought the company’s total payroll beyond the $2.5 million threshold for severance eligibility. In his ruling, the Honourable Mr. Justice Kane held “The measure and applicability of the obligation are established by the “total wages earned by all of the employer’s employees”. The Act is worded clearly. The measure relates to wages paid by the employer in and outside of Ontario. There is no legal justification or authority to interpret these sections so as to insert restrictions that are not to be found in the Act.” The Plaintiff was granted severance pay.
The decision presents challenges to employment lawyers in Ontario, and may present even greater challenges to employers depending if and how it is followed in the future. Justice Kane’s reading of the ESA stands in contradiction with previous Ontario cases, which viewed only the Ontario payroll as counting towards calculating severance. Also, the decision was released in French, and an English translation was not widely published.

Not only was the decision not widely translated online, but the complex legal French left most English-speaking lawyers scratching their heads trying to understand the Court's reasoning. However, it appears that, much to the relief of employers across the province, the decision was something of an outlier and the broad interpretation of severance pay has not changed since.

Now, in a new decision handed down from the Ontario Court of Appeal (this time in English), the interpretation of a French-language contract has come front and centre. 

In Oudin v. Centre Francophone de Toronto, 2016 ONCA 514, a former employee of the Francophone Centre of Toronto appealed an earlier Superior Court decision which held that the Employee's restrictive employment contract was valid, and that he was only eligible for the greater of 15 days' pay in lieu of notice, or his entitlements under the ESA. In this instance, his minimum legal entitlements were higher, but still significantly lower than the employee would have received if the contract was not held to be valid. 

The Employee argued at the Court of Appeal that the Superior Court judge, the Honourable Mr. Justice  Dunphy, mistranslated a key section of his contract. For all you Francophiles, the provision in question is below:

s. 9 CESSATION D’EMPLOI
9.2Congédiement at résiliation contractuelle : La présente entente peut être révoquée sans préavis ni compensation par le CFT pour les raisons mentionnées à l’article 4 de la présente entente.  Le CFT peut également résilier la présente entente pour tout autre motif en donnant à l’employé(e) un préavis de quinze (15) jours ou le préavis minimum prescrit par la Loi sur les normes d’emploi, ou en lui versant une indemnité salariale égale au salaire qu’elle aurait droit de recevoir pendant la période de préavis (après déduction et/ou retenues à la sources), selon l’entière discrétion du CFT.

My own French is rusty at best, but apparently Justice Dunphy also made a small mistake. As the Court of Appeal explains it, "The words “ou le préavis minimum prescrit par la Loi sur les normes d’emploi”  should have beentranslated to “or the minimum notice required under the Employment Standards Act” and not “or the minimum prescribed by theEmployment Standards Act.” The difference sounds small, but when it comes down to interpreting employment contracts, and especially termination clauses in those contracts, every little word counts.

However, in a surprising move, the Court of Appeal held that His Honour's mistranslation really did not matter in the end. The Court said that His Honour understood the contract as providing only the minimum notice under the ESA, and they agreed. Simply put, the Court of Appeal held that because the terms did not contract OUT of the minimum legal standards under the ESA (a no-no), it was a fair contract made between two parties, and should be upheld as such.

The move is surprising particularly because the termination clause in question did not include other standard termination payments that are traditionally included in termination clauses and thought by most lawyers to have been mandatory, such as references to benefits, bonuses, or other payments possibly owing. Previous contracts have fallen apart in both the Superior Court as well as the Court of Appeal for not getting this language right, and thus short-changing the employee. 

So, what's the bottom line? I suppose it's that high school French matters! In all seriousness, it is cases like these that keep employment lawyers on their toes, especially when there's a surprise element of another language that makes things all the more interesting.

And, as always, if you're the employer looking to draft a termination clause, or an employee faced with dealing with yours, it is always best to consult legal advice - in whatever language you're most comfortable with

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