CANADA Law and Practice Contributed by: Christopher Pigott, Rachel Younan, Jacob Wagner and Felisha Jagiah, Fasken
notice of termination – or pay in lieu thereof – where the termination is without just cause. Courts in Canada have found that a series of definite- term contracts leads to a conclusion that the employ - ment relationship has become indefinite. Accord - ingly, a series of renewals of definite-term contracts will likely be overlooked by courts and not relieve an employer’s obligation to provide reasonable notice of termination. Formal Requirements and Terms Contracts of employment may be oral or written or a combination of both. Increasingly, employers enter into written employment contracts with non-unionised employees to set out the terms and conditions of the employment relationship. Written employment con - tracts are especially common between employers and senior, managerial or key employees and where employees are hired for a particular term or to perform a particular task. There are no specific terms that must be included in a contract of employment. However, any terms set out in the contract must respect the minimum stand - ards set out in the employment standards legislation that has been enacted in each Canadian jurisdiction. Employment standards legislation applies whether or not an employer and employee have set out the terms of their relationship in a contract. However, employ - ment standards are only minimum standards; employ - ers and employees are not prohibited from agreeing to greater rights or benefits in employment contracts. Express terms set out in written employment con - tracts typically relate to salary, benefits, vacation enti - tlement, hours of work, title, job duties, and termina - tion of employment. Termination Importantly, unlike the USA, Canada does not allow for “at will” employment. Unless there is an express term providing otherwise, it is an implied term of every employment relationship that the relationship can only be terminated with reasonable notice of termination – or pay in lieu thereof – where the termination is without just cause. Reasonable notice of termination can be significant, particularly for employees in senior posi -
tions, older employees, and those with lengthy service with the employer. As a result, employers often use termination clauses in employment contracts to limit the amount of reasonable notice to be provided upon termination. Such clauses are subject to strict analysis in some jurisdictions, whereas courts are not bound by them in others. To be enforceable, employment contracts must be agreed to at the time of hire. If an employment con - tract is signed or amended once employment has begun, fresh consideration would be required for the Most jurisdictions limit the number of hours that can be worked in a week. Meal breaks and other short - er breaks during the working day are also typically required by legislation. In most cases, an employee is entitled to an unpaid meal break of at least 30 min - utes after having worked five consecutive hours. If an employee is required to remain at their workstation or otherwise be available for work during a break, the employer will be required to pay the employee for the break time. Employment standards legislation also often requires additional rest periods during the work day once an employee has worked a certain number of consecutive hours. Generally, the same laws apply to employees who perform full-time work and those who perform part- time work. There are no specific terms required for part-time employment contracts. contract to be valid. 1.3 Working Hours Employment standards legislation provides for over - time pay once a specific number of hours are worked in a week. In most jurisdictions, overtime is triggered at 40 hours a week and is paid at one-and-a-half times the employee’s regular rate of pay. In Alberta and Ontario, overtime begins at 44 hours a week, how - ever, it begins at 48 hours a week in Nova Scotia and Prince Edward Island. Some categories of employees can be excluded from the application of overtime rules – for example, managerial personnel or, in Quebec, employees paid on a basis other than an hourly one. In some circumstances, the applicable legislation allows employers and employees to enter into “aver -
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