This issue often arises in the context by which one party, most often the employer, delivers a new written contract or a revised one, frequently containing terms favourable to it, in the course of an existing employment relationship.

Some cases deal with a fact situation in which the employer delivers the written contract on the first day or in the very early moments of employment. This issue usually pivots upon the finding of when it made be said that the agreement of employment was struck.

If the original agreement was found to be made prior to the first or other relevant day, then fresh consideration will be required to support the newly proposed terms, which in most litigated situations, reflect a one-sided bias to the favour of the employer.

Where the finding is made supporting (usually) the employee’s submission that the contract had been formed prior to the delivery of the offending term, the employer may then argue, likely unsuccessfully for reasons to follow, where there is no apparent new consideration to support the revised term, that continued employment, in itself, fills the missing link of adequate consideration.

The case law has developed considerably since the Supreme Court of Canada decision of Maguire in 1935 in which tacit evidence of forbearance was seen as sufficient to find consideration. This is to be contrasted with the present law as in the 2008 Ontario Court of Appeal decision in Braiden, which concluded that the employer must show evidence of “enhanced security of employment”.

To this point the Ontario Court of Appeal in Francis v CIBC gave its sage advice in the following words to employers that the terms of the employment agreement should accompany the letter offering employment:

I would add that, in cases such as this, employers are able to incorporate the terms of a standard employment agreement into the original contract of employment by saying in their offer of employment that the offer is conditional upon the prospective employee agreeing to accept the terms of the employer's standard form of agreement, a copy of which could be enclosed with the offering letter.