Consideration

1. When was the contract signed?
2. Check the real date of the execution.
3. Is the agreement said to be “as of January 1”?
4. If agreement was signed after date of the commencement of employment, were the terms of employment still under active discussion or were the substantive terms already in place?
5. If the agreement was signed after the date of the commencement of employment, was there consideration provided?
6. Review the alleged consideration – was it “incidental” and hence not consideration?

Presuming that the agreement was (1) provided prior to the commencement of employment or (2) given afterwards in exchange for proper consideration, the following matters should be reviewed:

 ESA Issues

7. Does the severance term comply with the ESA? There could be an issue regarding an actual or potential violation.
8. Does the agreement state that the severance sum is intended to satisfy all ESA claims?
9. If so, consider if there are other ESA claims as live issues. An employment standard cannot be contracted out and arguably the termination clause may fail if the agreement purports to do so. Other ESA employment standards may include vacation pay, vacation pay on past bonuses, pay for statutory public holidays, a statutory holiday which occurred during a vacation period, over-time pay for non-managers, equal pay for equal work, pregnancy leave, parental leave, statutory leave and a reprisal claim.
10. Is there a possibility of a mass termination, in excess of 200 employees which may require greater than 8 week cap of statutory notice? This must be seen as a long shot.
11. Often it is also forgotten that a vacation pay gross up is owing on the statutory notice of up to 8 weeks’ pay. Should the agreement offer only one week of base salary as intended compliance with the ESA, without a vacation pay gross-up, it is offside.
12. Does the agreement state that the sum offered is in satisfaction of all claims arising from any statute?
13. Can there be another statutory claim such as a human rights claim which cannot be contracted out?
14. Is there another claim under a provincial statute such as section 50 of the Occupational Health and Safety Act or under Section 174 of the Environmental Protection Act? These statutes do not prohibit contracting out on their face but the facts which must arise for a remedy obviously are future tense. The Human Rights Code does not specifically prohibit contracting-out either.
15. A recent Ontario case held that termination "for any reason" would be in violation of the above protected rights.
16. Does severance term allow for with benefits coverage for statutory notice period; what benefits are relevant ? Apart from medical and health benefits, are there other financial or other perquisites that could be so included, which are to be included as part of the overall monetary compensation for the ESA notice.
17. Are there other inherent advantages to the time extension of service allowed by the ESA statutory notice? The service record must be extended by this time period.
18. Does agreement demand a release in order to receive the ESA?
19. Is statutory severance tied to a non-compete or another other condition such as a non-disparagement clause?
20. Is termination clause arguably ambiguous? If so, who drafted the contract ? Was the employee an active participant in the construction of this document?
21. Is there a fail-safe residual “ESA compliant” term in the agreement? The most recent words from the OCA are that such a clause cannot cure an ESA defective contract.

Cognos Negligent Representation Issues

19. Were there any oral or written misrepresentations given prior to the execution of the agreement which were material and misleading?
20. Was there detrimental reliance upon such misrepresentations? i.e., was the plaintiff unemployed and would likely have taken the offer in any event?
21. Is the subject of the misrepresentation addressed in the written agreement in terms contrary to the misrepresentation?
22. Is there a disclaimer or an “entire agreement” clause in the agreement?
23. If so, is the employee unsophisticated ?
24. Is the impact of the disclaimer unconscionable?
25. Did the employee take legal advice prior to the execution of the agreement?

Human Rights

26. Are there any grounds for a human rights issue which led to termination?
27. A human rights complaint is actionable by a reasonable inference of the alleged wrongdoing and can be proven systemically. Employer action based on a perceived human rights issue is actionable.
28. Human rights remedy cannot be contracted out and will be actionable even in the face of the adverse contractual severance term

Substratum

29. Has there been a material promotion in responsibilities since the inception of the written contract?
30. Was this promotion or the concept of any promotion contemplated in the written agreement?

Aggravated or Punitive Damages, Tort Claims

31. Is there conduct upon termination which would give rise to a claim for aggravated or punitive damages, or tort claims such as assault, intentional infliction of emotional distress or defamation? Such claims will not invalidate an otherwise legal termination clause but will allow further claims. See review here.

Equitable Arguments

32. Consider the defences of unconscionability, undue influence, duress and mistake, independently of the disclaimer or entire agreement clauses.