Monday, October 22, 2012

Poorly Drafted Golden Parachutes

There's a recent decision from the Ontario Superior Court of Justice, in the Freudenberg Household Products Inc. v. DiGiammarino case, interpreting contractual language:

7.         In the case that the Company would decide to terminate the contract with the employee in the first 4 years after the signature, the Company will pay to the employee an indemnity compensation of two (2) years salary including the bonuses.  In the case the Company terminates the contract following employee’s behaviour that could put the company in financial/commercial danger as a result of illegal or dangerous act, this compensation will not be payable any more.  This indemnity will include any other compensation arising from normal labour regulations. 
After these 4 years, this indemnity compensation will be no more applicable and the potential separation will be regulated by normal Canadian labour regulations. [Emphasis added by the Court]
The golden parachute in the first subparagraph is significant and unusual.  Other comments in the decision suggest that Ms. DiGiammarino was a long-service employee, so I'm guessing that the golden parachute was offered to induce her to give up some other contractual entitlement, or to induce her to accept a transfer into a less secure position.  Either way, the drafting is simply terrible, for reasons I will touch on below.

The decision states that the contract was entered into in November 2011, but that is clearly an error, and it appears that the year was 2007.  In summer 2011, the employer decided that Ms. DiGiammarino wasn't performing to expectation, and they would terminate her employment.

However, to avoid the golden parachute, the four-year term was permitted to run its course.  This attempt was unsuccessful:  The Court found that the golden parachute was triggered by the decision to terminate having been made within the first four years, as opposed to the termination occurring within the first four years.  Because they decided within the first four years to terminate her employment, she gets the benefit of the golden parachute clause.

My Thoughts on the Decision

Unlike the Court, I see two possible face-value readings of the language.  There's structural ambiguity in the sentence itself.  The Court's interpretation is possible.  But so is the alternate interpretation:  Indeed, it's probably the more likely interpretation to call " the first four years" a verb phrase, all subordinate to the large verb phrase starting with the word "decides".  (No, that's not legal jargon; it's linguistic jargon.  Mind you, it's been a number of years since I've taken a linguistics course, and while I was pretty good at it at the time, I'd welcome input from linguists.)

However, there's a rule of contractual interpretation that, when there are two possible readings, the Court reads the language in the manner which is least favourable to the party that drafted the contract.  So I'm of the view that the Court's correct here.  While one could certainly argue that the parties didn't intend the word
"decides" to be so heavily weighted - indeed, it looks like it was probably intended as empty verbage - I agree with the Court's analysis that there's no reason to protect the employer's right to arbitrarily fix a termination date that is more favourable to its own interests.

Poor Drafting

I have to say that I really hope this language wasn't drafted by a lawyer.

Firstly, there's the empty verbage.  Courts don't respect empty verbage.  Words are presumed to have meaning - to have some sort of effect on the overall meaning of the clause.  Yet it's common for lay people to try to use more language, and fancier language, to try to make a contract more impressive and legal-sounding, yet ultimately obfuscating the meaning of the contract, and detracting from its precision.  (Hint:  If you don't know how to properly use the word 'obfuscate'...just don't.)  The same issue occurs with the phrase "indemnity compensation".  It's clearly just an attempt to look fancy and formal, because the phrase doesn't really have any meaning.  An indemnity is a specific kind of compensation, and pay in lieu of notice isn't generally regarded as an indemnity.

Ironically, had it been a less formal contract, there would be more room for argument.  In an email, for example, empty verbage might be more acceptable when setting out terms.

Secondly, the second subparagraph is really, really weak.  Let's set aside the fact that there's a difference between labour law and employment law, and this one is the latter, and also the fact that this isn't in the Federal "normal Canadian labour regulations" is wrong on pretty much every level.  Clearly, it's trying to say "You'll get only the statutory minimums".  But that isn't what it says.  Even if you read "Canadian labour regulations" as something like "applicable employment standards legislation" (which may be a bit generous), saying that a separation will "be regulated by" applicable legislation is simply empty language.  Of course a separation will be regulated by the applicable employment standards regime.  That's true regardless of whether or not the contract says so...because that's just what employment laws do.

In other words, while it looks like this is an attempt to limit the employee to the employment standards minimums, the case law is very clear that language like this simply doesn't cut it.  (To be fair, the employer seems to acknowledge that; they also asked the Court for a determination of the reasonable notice period, which the Court fixed - as an alternative finding - at 21 months.  Of course, there's still a huge difference between a 21 month reasonable notice period and a 24 month golden parachute:  Mitigation.  Remember Bowes v. Goss Power?  With contractual language of this sort, there's no obligation to mitigate, unless that obligation is specifically set out in the contractual language.

The lesson, for employers, as always:  Contracts are useful, but you need a good employment lawyer to do it.  Spending a few hundred dollars to make the contract a good one at the start of employment is worth the investment down the road, because it could easily save you tens of thousands of dollars (or more) in liabilities and additional legal fees at the end of the employment relationship.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.


  1. "Spending a few hundred dollars to make the contract a good one at the start of employment is worth the investment down the road, because it could easily save you tens of thousands of dollars (or more) in liabilities and additional legal fees at the end of the employment relationship."

    Exactly. It would also be a good idea for all of us to be mindful that contracts are not all the same so we should have our lawyers have a look at what we are getting ourselves into. I am always amazed that people know more about Plato or Algebra after graduating from a university than they do about the place that they have just signed a contract to work at. It makes me wonder what it is that we actually value when it comes to employment. The legal troubles I have seen in the various countries that I have lived...


  2. That's actually not a bad point - I was directing my statement more towards employers, who should *always* get legal assistance in employment contract drafting, but it's often prudent for employees to do so as well.

    Most employees don't have a great deal of bargaining power, especially in the current market, but there's still something to be said for understanding the consequences of what you're signing, particularly where your position is specialized or senior enough to give you bargaining power.

    If job security is important, and you're leaving secure employment to go to the new job on promises of job security, yet your new employment contract has a probationary period and a "whole agreement" clause...well, you might be in for a rude awakening. I've also seen executive-level employees with ESA-only termination language, which I expect is something they'd probably have wanted to negotiate up if they had received legal advice.

  3. I would hope so, in regard to the executive-level employees! I doubt that many folks remember to bring up ESA concerns before being terminated. How could an employee prove when any part of the reason for the termination of employment is based on the employee asking questions about the ESA or exercising a right under the ESA, even things such as taking a leave of absence specified in the ESA?
    More importantly, how does an executive-level employee, who has not had a lawyer look through a contract, prepare herself/himself for ESA-only termination language? I reckon those were tough times for the unlucky clients who had not been slightly more prudent. Here's hoping they have brought their next contract to a lawyer for a read at least.