Important Notice on Notice: Supreme Court of Canada Reverses Quebec Court of Appeal

In a surprising decision, the Supreme Court of Canada reversed the Quebec Court of Appeal (QCA) last week in a decision regarding the provision and payment of “reasonable notice” on resignation. In the original QCA decision, the Court held that when an employee resigns and provides notice, the employer is free to forgo the notice period and let the employee leave immediately, without payment. This is different than in any of the common law provinces which would require the employer to pay out the common law “reasonable notice” or previously agreed upon contractual notice. While acknowledging that this may be an unfair result, the QCA stated that the Civil Code was clear and it was up to the legislator to express clear intent to the contrary. The Supreme Court of Canada disagreed, holding that the law was clear:

[58] With respect, this a contrario reasoning of the majority of the Court of Appeal cannot be accepted. The fact that the legislature established a measure to protect employees by enacting art. 2092 C.C.Q. merely shows that, without this article, it would be possible for the employee, while negotiating the contract of employment for example, to release the employer from its obligation to pay such an indemnity. This is a possibility the legislature wished to preclude because of the employee’s vulnerability in relation to the employer.

This decision brings Quebec inline with the other provinces with regard to notice on resignation. However, Quebec is still different from the common law provinces in that it is difficult for an employee to contractually give up notice in an employment agreement.