In the end, the court in Shore v. Ladner Downs found the termination clause to be inapplicable. The court stated at p. 342: The policy considerations applied in Machtinger, supra, would not be served if the contract were to be interpreted in favour of the employer so as to leave the individual employee responsible for determining, at the point of termination, whether the statutory minimum had risen above the notice period stated in the contract. It is neither reasonable nor practical to leave the individual employee in the position of having to keep an eye on the relationship between the statutory minimum and the contractual term. In my view, the conclusion stated by Iacobucci J. at p. 1005 applies equally to this case: I would conclude that both the plain meaning of ss. 3, 4 and 6 and a consideration of the objects of the Act lead to the same result: where an employment contract fails to comply with the minimum notice periods set out in the Act, the employee can only be dismissed without cause if he or she is given reasonable notice at common law.
The plaintiff argues that Shore v. Ladner Downs and Machtinger support the proposition that the onus is on employers to be aware of and to observe the minimum legislative requirements respecting employment so that employees receive the protections to which they are entitled without being placed in a position of having to ask for those protections. It is submitted that this onus extends to knowledge of and compliance with the employment legislation enacted in each province in which the employer has employees. Accordingly, the plaintiff argues that the termination clause contained in the Employment Agreement is void insofar as it purports to govern the plaintiff’s employment in British Columbia because it is based on the laws of Ontario.
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