The Risks of Self Representation

Recently an individual represented himself in a wrongful action before the Ontario Court of Appeal. He was appealing the decision of Mr. Justice Morgan from November 28, 2012 dismissing the action [Musoni v. Logitek Technology Ltd., 2012 ONSC 6782].

The decision of Morgan J. outlines a number of other proceedings brought by Musoni, including a complaint against a lawyer who had been referred to him by the defendant, as well as a human rights application.

In the trial decision, Morgan J. found that Musoni had been hired in October of 2005. On April 17, 2006 the parties had executed an employment agreement that ‘…governed the terms of the Plaintiff’s employment with the Defendant”. It provided as follows (in part):

“LOGITEK or EMPLOYEE shall have the right to terminate this agreement by notice in writing. A fifteen (15) days’ notice period will be required by the appropriate party, if agreement is terminated.”

The decision makes no reference to any additional consideration provided for the terms of this contract. It states he did not have legal advice but had several weeks to review it before he signed it.

There were two problems with the contractual term, at least one of them fatal. First, courts have determined in numerous cases that for an employment contract which significantly reduces common law rights to be enforceable it must have consideration other than continued employment if it is signed after the employment has commenced. There is no discussion in the decision of any such fresh consideration.

Second, a termination clause cannot provide less notice than could be required by relevant employment standards legislation, in this case Ontario’s Employment Standards Act, 2000 (the “ESA”). Following a Supreme Court of Canada decision on point such clauses have been ruled to be void ab initio and common law rights are read in.

In this case, Musoni apparently indicated that he had read and understood the contract and conceded it to be ‘valid and in force’. As a matter of law, however, that was incorrect. The clause should have been found to be void and unenforceable, and Musoni should have been entitled to common law notice.

Musoni appealed the decision to the Court of Appeal. In a surprising and very short judgement issued on October 11, 2013, the Court of Appeal ruled that Mr. Musoni was paid the amount specified in the contract and found no error in Morgan J’s conclusions. No mention was made in either judgment of what have been found to be fatal errors in termination clauses of this sort in numerous other judgments. Whether or not the trial court and/or the Court of Appeal were made aware of the clear law in this area they neither discussed nor applied it. Clearly, Musoni was not aware of it.

Musoni had costs awarded against him both at trial and at the Court of Appeal. According to the facts as articulated by Morgan J., he should have won!

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