R. Brent Raby
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What severance am I entitled to on job termination?

1/1/2012

 
If you are terminated without cause you are entitled to reasonable notice of your termination or the employer may elect to pay you your salary for the notice period and terminate you immediately. What this means is that assuming the appropriate notice period is 6 months, the employer has the option of saying to you on January 1 that as of June 30 your services will no longer be required, but that in the meantime you will continue on as an employee until June 30 which will be your last day of employment.. However, most employers prefer not having potentially disgruntled terminated employees in their workforce, and accordingly most employers will say to an employee on January 1 that today is your last day and here's 6 months salary and you're out of here.

The trick in any given case is to determine what is "reasonable notice".  What makes employment law interesting is that there is no hard and fast formula to determine "reasonable notice" in any such given case. This is good for lawyers as it keeps them busy, but it's bad for everyone else because no one knows where they stand, and that includes employers and employees. Legal scholars all agree that the law should be as certain as possible so that people can conduct themselves accordingly. However, in employment termination cases the law is not certain or predictable, and because of that litigation often follows a termination.

At one point the courts were so clogged with employment termination cases where employees' lawyers were clamouring for very long notice periods and employers' lawyers were demanding very short notice periods that a judge decided to try to inject an element of certainty into the law and he devised a rule of thumb of awarding one month of notice for every year of the employee's service. So a employee of 7 years of service would be entitled to 7 months of notice. The judge then added the proviso that the resulting notice period could be adjusted up or down somewhat depending on a few other factors.

This indeed introduced an element of certainty and my estimate is that employment termination cases for a period of time declined precipitously. When a 10 year employee was terminated the employer would consider 10 months notice and then make an offer of 8 months reasoning that the employee was young and had marketable skills that would make re-employment an imminent likelihood. The employee through counsel usually would rejoin that the employee was really not all that young and his skills had become stale and that 12 months was a more appropriate figure. They would ten of course settle on 10 months.

Buyer Beware

1/1/2012

 
The old Latin maxim Caveat Emptor means "Buyer Beware" and it is very much relevant to all real estate transactions in Ontario in 2012. The maxim means that a buyer of the property takes the property as it is and has no recourse after closing against the seller for any defects. If the buyer discovers a crack in the foundation after closing there is no recourse against the seller.

The rationale behind the rule was put this way by the Supreme Court of Canada, "The rationale stems from the laissez-faire attitudes of the eighteenth and nineteenth centuries and the notion that a purchaser must fend for himself, seeking protection by express warranty or by independent examination of the premises. If he fails to do either, he is without remedy either at law or in equity, in the absence of fraud or fundamental difference between that which was bargained for and that obtained."

In practical terms what this means is that purchasers of land should protect themselves either by insisting on an express warranty in the agreement to purchase OR by hiring an expert to examine the premises before finalizing the deal. Although the caveat emptor rule is centuries old, it has more or less survived intact in matters relating to real estate.

Now what would a legal rule be without exceptions? There are exceptions to the rigorous application of the rule in real estate transactions. The nature of these exceptions depends on whether the defect complained of is a patent defect or a latent defect. Patent defects are defects that are discoverable by inspection and ordinary vigilance on the part of the purchaser. Latent defects are defects that would not be apparent to an ordinary purchaser during an inspection.

So, if a purchaser fails to discover a patent defect before closing, he is out of luck. An obvious example would be a broken window. If the basement window was broken when the purchaser signed the agreement and the purchaser only discovered this the day after closing, the purchaser has no recourse against the vendor, absent any express warranties in the agreement. A less obvious example would be a central air conditioning unit that was broken in March when the purchaser signed the agreement, and the purchaser only discovered the defect on moving in on a hot and steamy day in June, then the purchaser has no recourse against the vendor, absent any express warranties in the agreement.


    Brent Raby has practiced law for over 30 years.
    He has become good at it.


    "Blawg" is law blog.



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