Introductory Remarks from the Chairs

Barry Kuretzky, Kuretzky Vassos Henderson LLP
Connie Reeve, Blake Cassels & Graydon LLP
Melany V. Franklin, Borden Ladner Gervais LLP

NEGOTIATING AND DRAFTING KEY CONTRACT TERMS

Part I: From the Term Sheet Onwards

Lorna A. Cuthbert, Stikeman Elliott LLP
Robert L. Colson, Teplitsky, Colson LLP

The first of three panels providing expert insights into how employment contracts can be used to head off future problems, clarifying expectations on both sides and limiting risks and potential liabilities.

• Defined terms (“confidential information”, “material change in duties” etc.)
• Employment clause: fixed term or open-ended (“evergreen”)?
• Job description
• Reporting structure
• If the employee is a CEO, what degree of autonomy will he/she have from the chairman of the board?
• Remuneration: basic salary, commissions, bonus, benefits, vacation
• Short-term and long-term incentives (and how these intersect with the termination clause)
• Provisions involving shares; phantom vs. real shares
• Right to relocate
• “No conflicting obligations” including prior obligations?
• Fiduciary duties
• Assignment of works/copyrights
• Rules and employment policies
• Privacy and personal information
• Probationary period

Part II: Controlling for Liability and Managing Risks

Matthew L.O. Certosimo, Borden Ladner Gervais LLP
George J.A. Vassos, Kuretzky Vassos Henderson LLP

• Provisions governing in the event of disability
• “Good reason” clauses
• Immigration and tax issues in cross-border hirings
• Attempts to contract out of possible liability for constructive dismissal
• The termination clause and severance provisions
  - rights of employee on termination of employment
• Using employment contracts to detail notice obligations
• How employers should assess notice periods
• Severance: lump sum, salary continuance; base salary vs. full compensation
• Just cause: advantages and disadvantages of tailoring clauses specific to the position or industry

Part III: Post-Employment Entitlements and Restrictions and General Drafting Considerations

Richard J. Nixon, Davis LLP
David A. Whitten, Whitten & Lublin LLP

• Working notice
• Which contractual obligations of employees will survive termination?
• Scope of post-employment fiduciary and other obligations, including confidentiality and intellectual property issues
• Restrictive covenants (non-solicitation and non-competition) – how enforceable are they in today’s climate?
• Form of release
• Selecting from among precedent clauses—and improving on them
  LSUC’s precedent employment contract
  - strengths and weaknesses?
• Dealing with problems arising from the other side’s precedent

Amending Agreements and Managing Change

John C. Field, Hicks Morley Hamilton Stewart Storie LLP
M. Norman Grosman, Grosman, Grosman & Gale LLP

Two counsel will explore the smartest ways of amending work terms, employee responsibilities and duties, and conditions of employment without triggering claims or impacting the enforceability of the contract.

Beyond the Corners of the Contract: the Interface Between Employment Agreements and Organizational Policies

Carita Pereira, Israel Foulon LLP
Elizabeth L.W. Fanjoy, Assistant General Counsel, Head of Labour & Employment Law, CIBC

Consistency as between the employment agreement and organizational policies and practices is key, but can’t be assumed. This discussion will explore the ways in which the relationship between the two can be powerfully and effectively managed, including:

• Building effective policies that the courts will enforce: Dowling v. Ontario Workplace Safety and Insurance Board
• Coordination of the contract with compensation and benefit plans/variable compensation structures: Springer (C.A.)

Introductory Remarks from the Chairs

Barry Kuretzky, Kuretzky Vassos Henderson LLP
Connie Reeve, Blake Cassels & Graydon LLP
Melany V. Franklin, Borden Ladner Gervais LLP

Best Practices in Workplace Investigations of Alleged Employee Misconduct

Christine M. Thomlinson, Rubin Thomlinson LLP
Alison A.M. Burton, Counsel, RBC Law Group

The co-author of a standard text in this area, and an experienced in-house HR director, will discuss key issues, including:

• The decision to investigate the allegations
• The parameters and methodology of the investigation (including the role, if any, of an outside investigator)
• Smart approaches that will preserve workplace morale and minimize legal risk (including the risk of liability for violation of employee-privacy rights and tort liability for negligent investigation)
• How to most effectively report on and follow up on the results of the investigation

Just Cause: Building and Documenting the Case

Jennifer M. Fantini, Borden Ladner Gervais LLP
Jennifer E. Maurer, Senior Counsel, Scotiabank

• Strategies for a successful just cause termination
• Mistakes employers should avoid
• Can an employee’s off-duty conduct or pre-hiring representations amount to just cause?
• Recent trends/developments – where the courts have been taking the law
• Multiple/cumulative incidents of misconduct as a basis for just cause
• Documented warnings and proving the sufficiency of the misconduct
• Condonation of misconduct

Termination Without Cause: Dealing With the Tougher Issues

Lorenzo Lisi, Sherrard Kuzz LLP
Loreta Zubas, Zubas & Associates

• Best practices for dealing with terminations during uncertain economic times
• Protecting yourself in difficult termination scenarios (e.g. where the employer is a family business/small business or the employee is emotionally disturbed)
• Identifying and dealing with high-risk terminations
• Issues involving references or requests for references
• Issues involving releases and waivers
• How presumptions regarding position as a factor can be rebutted
• Dealing with bonuses, commissions, pensions and other employment-related benefits
• Terminating an employee on leave
• Avoiding aggravated damage claims
  (bad faith, punitive damages, etc.)
• A review of the most significant recent caselaw

When the File is Headed for Litigation: Choosing Among Dispute Resolution Options and Strategies

Barry B. Fisher, Fisher Law Chambers
Peter Israel, Israel Foulon LLP

• What happens if a human rights complaint is included in a lawsuit?
• Assessing the prospects for mediation, arbitration, or mediation/arbitration in the particular case
• Protocols, ground rules, preparation of agreements and releases
• Managing the file, with emphasis on the respective roles of the board of directors, CEO, HR department, communications department, in-house counsel, and external counsel
• Litigation privilege
• Impact of current changes to Simplified Procedure (r. 30, 31, 76)

Summary Judgment – How to Get it Under the Newly-Amended Rule 20

John W. Saunders, Hicks Morley Hamilton Stewart Storie LLP

The far-reaching amendments to Rule 20 confers power on judges to hold a “trial within a trial”, hearing evidence on a summary judgment motion. As the Canadian Forum on Civil Justice has noted, “the substantially revised rule on ‘where trial is necessary’ gives the court much greater powers and effectively permits such cases to enter a form of case management”. The practical implications of the amendments, and the strategic considerations to which they give rise, will be explored in this session. The discussion will include an examination and critique of a factum, underscoring just what a judge will need to see to grant the motion.