Can the Senate of Canada Fire Pamela Wallin?

Nov 2, 2013

Under the Constitution Act, 1867 (the Act), Pamela Wallin was appointed by the Governor General to fill one of 6 Senate seats from Saskatchewan. Under section 29 of the Act, her appointment is until age 75 unless she is disqualified.

Under section 31 of the Act, she can be disqualified (or removed from the Senate) if she, among other things, (i) is subsequently charged and convicted of a crime in connection with certain expense claims; or (ii) ceases to be a resident of the province for which she is appointed.

Accordingly, I don’t think Ms. Pamela Wallin can be fired/disqualified as a Senator for submitting inappropriate expenses unless she is subsequently charged and convicted of a crime in connection with these expense claims.

The Senate is currently considering a motion to suspend Ms. Pamela Wallin without pay. Under section 36 of the Act, the Senate can decide Senate matters by a majority vote but does an unpaid suspension really amount to a Senate disqualification? If so, it appears the Senate would be exceeding its jurisdiction.

In employment law, an unpaid suspension is generally a termination unless the employment contract permits an unpaid suspension as a form of discipline.  So, arguing by analogy Ms. Wallin could claim that an unpaid suspension violates sections 29 & 31 of the Act which provides she has the right to remain a Senator until age 75 unless a disqualification criteria has occurred. In other words, sections 29 & 31 of the Act trumps section 36 of the Act.

Interestingly section 33 of the Act – which is after the disqualification section of the Act – states that “any Question (that) arises respecting the Qualification of a Senator (including the residency requirement) … shall be heard and determined by the Senate” This section does not explicitly state that the Senate has the power to determine whether a Senator is disqualified. Will a judge imply that such a power exists, or will a judge conclude Parliament would have included the power to disqualify in section 33 if it had intended to do so?

In any event, why is no one in the Senate  looking into the issue of whether Ms. Wallin, Mr. Duffy and perhaps others should be disqualified (or removed) from the Senate because they do not reside in the province from which they were appointed?

Thank you to Chris MacLeod (no relation) of Cambridge LLP for suggesting this blog topic. If you have any questions regarding employment laws, please contact us at 1-800- 640-1728 or at [email protected].

There are many ways to attack the termination clause in an employment contract. 

I am now surprised if employee counsel does not claim that their client’s  termination clause is not legally enforceable - usually because the termination clause does not allegedly comply with the Employment Standards Act.

This blog considers a case, McKercher v Stantec Architecture Ltd., 2019 SKQB 100, where an employee successfully attacked the termination clause in his contract because he did not explicitly agree to it after being promoted. 

The Facts

In 2006, Mr. McKercher commenced employment as a staff architect. The termination clause in his employment contract stated: 

Termination other than for cause will be with notice or pay in lieu of notice, based on your length of service. If the Employer terminates your employment for other than just cause you will receive the greater of:

  1. a)   Two weeks notice or pay in lieu of notice during the first two years of employment increasing by one week for each additional completed year of employment to a maximum of three months notice or pay in lieu of notice.

      or

  1. b)   The minimum notice of termination (or pay in lieu of notice) required by applicable statutes.

Eleven years later, when Mr. McKercher was employed as a Business Centre Sector Leader, his employment was terminated. The employer paid him the three months termination pay he was owed under his employment contract.

 

Another way to attack a termination clause: What is the changed substratum doctrine?

An Ontario judge in a 2012 case, MacGregor v National Home Services, 2012 ONSC 2042 (CanLII), described this legal doctrine as follows: "The changed substratum doctrine … provides that if an employee enters into an employment contract that specifies the notice period for a dismissal, the contractual notice period is not enforceable if over the course of employment, the important terms of the agreement concerning the employee’s responsibilities and status has significantly changed."

 

The rationale for this doctrine has been described by one judge, Schmidt v AMEC Earth & Environmental Ltd., 2004 BSCS 2012 (CanLII), as follows: "In my view, it was incumbent on the defendants to advise Mr. Schmidt that they intended to continue to rely upon the termination provision set out in the Agreement when substantial changes in his employment occurred. This would have allowed him to consider the matter and to negotiate for other terms. If the defendants wished to continue to rely on the termination provisions there ought to have been a ratification of the provisions as the nature of Mr. Schmidt’s employment changed."

 

Decision

The judge hearing this case relied on the following factors when deciding not to enforce the termination clause in the employment contract: ”...there is no evidence that (the employer) made it clear to the (employee) that the notice of termination provisions were intended to apply to the positions to which he was promoted. The employment agreement contains no express wording to this effect, nor does it contain any wording to support the inference of such an intent. Further, and in keeping with the analysis in Schmidt, the Court received no evidence that, as it promoted the plaintiff, SAL reasserted its understanding and expectation that the notice of termination limit would remain in effect.”

 

Lesson to be learned:

An employer should make it clear that the termination clause in an employment contract applies when an employee is promoted. This expression of this intent should be in writing and should be clear and unambiguous. I recommend that an organization’s employment be reviewed by an employment lawyer every year or two. If your employment contract does not address this issue then think about doing so the next time it is reviewed.

 

For 30 years, Doug MacLeod of   the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

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