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Employment Law

Nadine has years of experience advising on the following issues in employment law in the context of litigation matters and corporate transactions while working at leading Bay Street law firms and as in-house counsel at prominent organizations.
Nadine was also a contributing author to the book titled “How to Conduct Workplace Investigations”, published by Thomson Reuters.
Nadine has conducted various training and educational seminars to assist employers in understanding their obligations under Canadian employment law.

    Wrongful dismissal
    A wrongful dismissal occurs when an employee’s employment is been terminated without cause and without reasonable notice of termination. When this occurs, the employee may be entitled to damages based on the employer’s failure to provide reasonable notice of termination.
    Constructive dismissal
    A constructive dismissal occurs when an employee’s employment has not been terminated outright. However, due to the significant changes to the employee’s terms and conditions of employment, the employee’s employment as he or she once knew it, has effectively been terminated.
    Unjust dismissal
    An unjust dismissal occurs when an employee of a federally-regulated undertaking dismisses an employee without cause. Federally-regulated undertakings include airlines, banks and telecommunications companies. Most employees who have been unjustly dismissed can file a complaint within 90 days and claim back pay and reinstatement, in addition to bringing a civil action in court.
    Breach of contract
    A breach of contract in employment law occurs when an employer breaches the implied or express terms of an employee’s employment agreement, regardless whether the agreement was in writing or verbal. An employer can be liable for damages for breaches of an employee’s employment agreement.
    Mass terminations & workplace restructurings
    Mass employment terminations and workplace restructurings can raise additional legal obligations and liability exposure that are not present when dealing with individual terminations. As such, employers must exercise care to ensure their more onerous legal obligations are met in the context of mass terminations and workplace restructurings.
    Human rights complaints & investigations – accommodation, discrimination & harassment
    Employees have human rights protections prohibit discrimination and harassment at work on recognized grounds, such as age, sex, pregnancy and disability. Employers must comply with human rights laws and conduct human rights investigations in accordance with the law; otherwise, they may be liable for damages.
    Employment standards laws
    Employment standards laws set out the minimum protections afforded to employees in the workplace, such as minimum wage, minimum notice of termination, severance pay and holiday pay. Employment standards laws also set out various recognized leaves of absence that are protected by the right to reinstatement, such as pregnancy leave, parental leave, compassionate care leave, sick leave and emergency leave. Employees whose employment standards rights have been infringed can bring a complaint against their employer within specified time limits.
    Non-competition & non-solicitation agreements
    Non-competition and non-solicitation agreements can greatly impede a former employee’s ability to compete against his or her former employer or solicit the former employers’ customers and employees. Unless these agreements are carefully drafted, they may not be enforceable. To learn more about non-competition agreements, see Non-Competition Agreements: Avoid the Enforcement Pitfalls in A Director’s Guide to Executive Compensation Vol. 5, No. 1 | March 2010.
    Fiduciary duties
    Certain employees owe fiduciary duties to their employer during their employment and for a reasonable period of time following their employment, regardless of whether they are bound by written non-competition or non-solicitation agreements. Often, very senior level employees and employees in positions to develop special customer relationships are held to be fiduciaries. Employees who are fiduciaries generally cannot usurp for their own benefit an opportunity they were working on for their employer. To learn more about fiduciary duties, see Fiduciary Duties: What are They and Why do They Matter? in A Director’s Guide to Executive Compensation Vol. 5, No. 2 | June 2010.
    Employee or contractor
    Work arrangements can be structured in various ways, including as employment or contractor arrangements. There are consequences to each form of arrangement, such as payroll remittances and workplace compliance requirements for employees. Also, contractors may not have the rights and obligations that are implied into employment arrangements, unless they are expressly stated in a contract. Companies and workers should ensure that their form of work arrangement can be supported in law; otherwise, they may risk liability exposure.
    Workplace investigations
    Employers should ensure they understand when they need to conduct a workplace investigation and how it should be conducted. Failing to conduct a workplace investigation or improperly conducting a workplace investigation can expose an employer to liability.
    Attendance management
    Managing employee attendance and implementing measures to improve employee attendance must be handled with care. Disability and accommodation concerns often come to the forefront when managing employee attendance.
    Disability accommodation & accessibility
    Employers may have an obligation to accommodate employees with disabilities pursuant to human rights laws. Also, employers in Ontario must comply with their obligations under the Accessibility for Ontarians with Disabilities Act, 2005, commonly referred to as the “AODA”.
    Privacy law
    There are various privacy laws across Canada that deal with employee personal information in varying degrees. Employers need to ensure that they understand their privacy law obligations and respect employees’ privacy rights.
    Workers’ compensation
    Employers must ensure they are registered with the applicable provincial workers’ compensation board, unless they are exempt from registration. Once registered, employers have to remit workers’ compensation premiums. Employees who suffer an illness or injury in the workplace may be entitled to workers’ compensation benefits, but may be barred from suing their employer.
    Workplace compliance audits
    There are several statutes and regulations governing the workplace. A workplace compliance audit is a means by which employers can assess their compliance with employment related laws and obtain recommendations to improve compliance or achieve best practice standards.

Executive Compensation

Nadine has gained significant expertise in executive compensation legal matters and has published the only comprehensive book in Canada on executive compensation titled “Executive Compensation: A Director’s Guide”. Nadine has in-depth knowledge and experience on the following executive compensation matters.

    Executive employment agreements
    Executive employment agreements often include many terms not generally included in non-executive level agreements. Executives often have higher levels of responsibilities that require different protections and enhanced compensation. An understanding of market trends and compensation governance practices is important to properly design and draft an executive employment agreement.
    Executive severance agreements
    Executive severance agreements often address a host of factors that are necessary because of the executive’s senior level position within the organization. Typically, it is important to understand how the severance terms in an executive’s employment agreement are related to the terms in the compensation plans and the director and officer indemnity provisions.
    Change of control agreements
    Change of control agreements can benefit companies and executives if they are properly implemented. They can help companies attract, motivate and retain executives, particularly during periods of transition, whether the transition is imminent or a mere possibility. In the event of a corporate take-over bid, change of control agreements can give executives the security to focus on the merits of the bid, rather than their personal positions. Properly drafting change of control agreements is critical to ensure that they have their desired effect.
    Stock options
    Stock options are a form of long-term executive compensation for which the value is generally tied to gains in the price of a company’s stock. Stock options can be tax effective to executives if properly implemented. Stock option plans may be implemented with or without share appreciation rights. To learn more about the implications for stock options in the 2010 federal budget proposal, see Stock Options: Impact of the 2010 Budget in A Director’s Guide to Executive Compensation Vol. 5, No. 3 | September 2010.
    Share Appreciation Rights (SARs)
    SARs are a form of executive compensation for which the value is generally tied to gains in the price of a company’s stock. Share appreciation rights can be tax effective for executives, depending on how they are implemented by the company. SARs can be implemented as stand-alone compensation or as part of a stock option plan. To learn more about the implications for stock options and SARs in the 2010 federal budget proposal see Stock Options: Impact of the 2010 Budget in A Director’s Guide to Executive Compensation Vol. 5, No. 3 | September 2010.
    Restricted Share Units (RSUs) & Performance Share Units (PSUs)
    RSUs and PSUs are forms of mid-term executive compensation. The value of RSUs is generally tied to the value of a company’s stock over time and, in the case of PSUs, other performance metrics as well. RSUs and PSUs are forms of deferred compensation that must meet the strict income tax requirements.
    Deferred Share Units (DSUs)
    DSUs are generally implemented as compensation deferral arrangements. When drafting and implementing a DSU, it is important to understand the strict requirements of the income tax rules affecting them.
    Employee share purchase plans (ESPPs)
    ESPPs enable employees to acquire shares in their employer and often provide incentives to do so. If properly implemented, ESPPs can be greatly valued by employees and provide a terrific way of motivating employees to act like owners, rather than strictly employees.
    Statement of Executive Compensation - Proxy circular disclosure (NI 51-102F6)
    Public companies disclose the compensation of their named executive officers annually in their proxy circular in accordance with National Instrument 51-102F6 – Statement of Executive Compensation. Determining what must be included in NI 51-102F6 and how it must be included often requires careful analysis and a thorough understanding of a company’s compensation plans and market practices. Legal advice is often required to ensure the best approach for the particular company is adopted and to minimize the risk of liability exposure. To learn more about the changes recently implemented to NI 51-102F6, see Executive Compensation Updates in A Director’s Guide to Executive Compensation Vol. 5, No. 4 | January 2011.
    Compensation Committee Charter
    The governance and disclosure requirements for a company’s Compensation Committee are set out in the National Instruments pursuant to securities laws. It is important that Compensation Committees meet these obligations and that their Charters accurately reflect their duties. Improperly drafted Compensation Committee Charters that are not in-line with the actual duties of Compensation Committees can cause confusion and create liability exposure.
    Compensation Governance & Say-on-Pay
    Directors and officers have a duty of care to act in the best interest of the company. This duty applies in the context of compensation governance. In determining compensation governance practices, it is important that directors and officers understand the level of care imposed on them by case law and the best practices articulated by various shareholder advisory groups and other stakeholders, such as the Canadian Coalition for Good Governance and Risk Metrics Group. This applies in particular to organizations with shareholder say-on-pay advisory votes. To learn more, see Good Pay Practices: Interested Stakeholders Weigh-In in A Director’s Guide to Executive Compensation Vol. 4, No. 4 | December 2009; and Say-on-Pay: Will Your Pay Practices Survive the Scrutiny? in A Director’s Guide to Executive Compensation Vol. 4, No. 2 | May 2009.
    Director compensation
    The role and responsibilities of directors has evolved and expanded in recent years. The compensation provided to directors has also changed over time. In determining the appropriate forms of director compensation, it is important to understand the roles and responsibilities of each member and committee of the board of directors.
    Short-term incentive plans (STIPs) & long-term incentive plans (LTIPs)
    Many organizations offer employees the opportunity to participate in STIPs and LTIPs, in addition to their base salary. These can take various forms, such as annual cash bonus plans and multi-year performance based cash bonus plans. In designing and drafting these plans, it is important to have a good understanding of the income tax rules affecting them.
    Retention incentives & transaction incentives
    Retention incentives and transaction incentives can benefit companies and executives if they are properly implemented. Transaction incentives can be used to motivate employees to work diligently to complete the transaction and to obtain the best possible value for the company in connection with the transaction. Retention incentives can be used to retain employees and can be particularly beneficial during periods of crisis or transition for a company. It is important that these incentives be properly designed and implemented to motivate the desired behaviours. To learn more about retention incentives, see Retention Bonuses: Are They Necessary These Days? in A Director’s Guide to Executive Compensation Vol. 4, No. 3 | September 2009.

Due Diligence, Purchase & Sale Agreements & Outsourcings

Nadine has worked on numerous prominent transactions throughout her years of experience gained at Bay Street’s highly recognized law firms, including asset and share purchase and sale agreements, combinations, initial public offerings and outsourcings. Nadine’s experience includes conducting due diligence on the employment, labour, compensation, benefit and pension matters; structuring the employment and labour aspects of the transaction; advising on and drafting the employment, labour and benefit provisions in the transaction agreement; drafting any required notices to employees and unions; and advising on and drafting any required employment agreements, incentive plans and severance agreements.

    Due diligence reviews
    Most transactions will require a due diligence review of the employment, labour, compensation, benefit and pension matters. The scope of the due diligence review can range from the basic minimum to an in-depth review, depending on factors, such as the client’s mandate, the risks associated with the business and the magnitude of the transaction.
    Purchase & sale agreement drafting and reviews
    Purchase and sale agreements typically include a host of employment, labour, compensation, benefit and pension terms, conditions, representations and warranties. These aspects can involve on-going liability exposure even after the transaction closes. As such, it is important that these aspects of the transaction be fully and carefully addressed in the purchase and sale agreement.
    Outsourcings
    Many employment, labour, compensation, benefit and pension matters need to be addressed in outsourcings. Exchanges of the personal information of employees and contractors in the course of outsourcings must be handled with care to comply with privacy laws.
    Retention incentives & transaction incentives; change of control agreements
    When organizations are contemplating or facing a transaction that could affect their structure and existence, it is important that they consider the necessity of implementing retention and transaction incentives. Implementing retention and transaction incentives in periods of transition can benefit companies by retaining the employees necessary to complete the transaction and by motivating them to obtain the best possible value for the company. During these periods, it is also important that companies understand the terms of all existing change of control agreements, including any in executive employment agreements and in incentive plans. To learn more about retention incentives, see Retention Bonuses: Are They Necessary These Days? in A Director’s Guide to Executive Compensation Vol. 4, No. 3 | September 2009.