Dating back to 2019, this column has chronicled a series of cases from the highest court in Ontario and the Supreme Court of Canada that have shaped the law on employment contracts. The news has generally been devastating for employers.

In Ontario, the current state of the law considers the common intentions of an employer and employee to be irrelevant when assessing the enforceability of a termination clause. Instead, the focus is invariably on performing line-by-line inspections of the contract’s precise terms to root out minor drafting errors, theoretical breaches and trivial ambiguities — the existence of which renders the termination provision unenforceable.

The recent tendency of Ontario courts to invalidate employment contracts has caused lawyers to become complacent: Employee representatives are no longer required to be creative or develop thoughtful legal positions; and their counterparts are aware that any form of inspired argumentation will not be taken seriously.

Our legal cases elsewhere have found that this same defeatist mindset also prevails in British Columbia. But, unlike in Ontario, the role of “winner” and “loser” is shockingly reversed.

The courts in B.C. have shrugged aside the notion that minor drafting errors will result in an entire employment contract being voided.

By way of example, in one B.C. case the mere passing reference to the B.C. Employment Standards Act (ESA) was sufficient to determine the contract was enforceable. In making that determination, the judge put it this way: “So long as the parties’ intentions are discernible, imperfect language that does not create ambiguity or uncertainty regarding the parties’ intentions is not material.”

In an unrelated decision, another B.C. judge playfully opined that employment contracts need not be a “masterpiece in drafting” to withstand judicial scrutiny.

Despite this recent, liberal approach of B.C. courts, one would assume that, for an employment contract to be enforceable, it would at least be required that the employee actually sign it. However, that seemingly obvious baseline requirement was not required in the case of Asgari Sereshk vs Peter Kiewit Sons ULC.

In brief, Asgari Sereshk was employed by Peter Kiewit Sons ULC (PKS) on an intermittent basis from 2008 to 2020, with his last period of employment beginning in 2019. Around that time, PKS presented Sereshk with an employment contract, which he refused to sign. The parties underwent three revisions of the contract, with one of the sticking points being the inclusion of a termination clause providing for only the payment of the ESA minimum.

The standoff ended in a stalemate. Instead of signing the contract, Sereshk simply sent an email to PKS stating that he was excited to begin work. PKS permitted him to return without signing off and considered his email to be binding acceptance. Sereshk’s final stint with PKS lasted a year, at which time he was terminated without cause. In dismissing him, PKS paid out two weeks of wages, as per the unsigned contract.

Sereshk was dissatisfied and requested that PKS provide him with additional severance. He justified the request by arguing that the employment contract was unenforceable since he had never signed it and also because its terms were ambiguous. PKS deemed the unsigned contract to be valid and did not budge. The dispute proceeded to litigation and eventually found its way into a courtroom. In the end, a B.C. judge found that the intention of the parties was clear and the unsigned contract ruled the day. Nothing further was owed to Sereshk, his wrongful dismissal lawsuit was tossed out, and he was required to assist his former employer in paying its legal bill.

Perhaps more stunning than the result is that the case is not anomalous. As recently as August 2022, another employer found success in advancing the Sereshk decision to fend off a similar claim from a former employee.