The Equities of Equities

Sometimes it simply does not matter what a contract says; the court will not give effect to it.

Recently, this blog, and others like it, have devoted a considerable amount of attention to the subject of what it takes to draft a legally enforceable termination of employment provision. However, an even more frustrating decision, Battiston v. Microsoft Canada Inc., 2020 ONSC 4286 (CanLII) demonstrates that, even if what one writes in its employment contract is, on its face, legally enforceable, that does not mean that Ontario’s courts will be prepared to give effect to it when the time comes.

This is one reason why I am losing my hair.

EDIT: The Court of Appeal for Ontario allowed the employer's appeal: Battiston v. Microsoft Canada Inc., 2021 ONCA 727 (CanLII).

Conscionability of Release Not Appropriate for Resolution by Summary Judgment

Is the issue of the “conscionability” of a full and final release, signed as part of a severance negotiation and purporting to release claims to long-term disability benefits, the kind of issue appropriate for resolution by way of summary judgment?

Notwithstanding the agreement of the parties that it was, in Swampillai v. Royal & Sun Alliance Insurance Company of Canada, 2019 ONCA 201, the Court of Appeal for Ontario held that, in the circumstances of this case, the issue of whether the release was unconscionable and therefore unenforceable was a genuine issue requiring a trial.