Chsherbinin Litigation
419-4789 Yonge Street M2N 0G3 Toronto, ON, Canada

CONDITION PRECEDENT AND THE AUTOMATIC TERMINATION OF A CONTRACT (this article originally appeared in the Lawyer's Daily on December 14, 2018) A true condition precedent occurs whenever the rights and obligations of the contracting parties depend on a future uncertain event, the happening of which is beyond the parties’ control and contingent entirely on the will of a third party. Until the event occurs, there is no right to specific performance on either side....Continue reading

DISMISSED EMPLOYEE’S ENTITLEMENT TO A SHAREHOLDERS' BONUS (this article originally appeared in the Law Times on December 10, 2018, p 7) An employee’s employment is terminated when he or she is dismissed without cause, not when the notice period ends. The date of an employee’s dismissal is, thus, a question of fact. When an employer dismisses an employee without cause and without proper notice this constitutes a wrongful dismissal, and any payment in lieu of notice is intende...Continue reading

DEDUCTING PENSION BENEFITS IN WRONGFUL DISMISSALS (this article originally appeared in the Law Times on October 22, 2018) The fundamental principle applicable to quantifying damages in wrongful dismissal cases is that the damages award should place an employee in the same economic position that they would have been in, had they not been wrongfully dismissed. In determining damages, the court will typically include all of the compensation and benefits the employee would have e...Continue reading

RESCINDING AN ACCEPTED NOTICE OF RESIGNATION (this article originally appeared in the Law Times on September 17, 2018) Resignation is a right personal to an employee. It can neither be imputed to nor imposed on the employee and, thus, must be voluntary. The act of voluntary resignation has a subjective and an objective element. The former is represented by the employee’s intention to sever the employment relationship, while the latter is manifested by an act resulting from th...Continue reading

EMPLOYMENT DISCRIMINATION BASED ON CITIZENSHIP (this article originally appeared in the Lawyer's Daily on September 12, 2018) Canadian citizens and permanent residents have an unrestricted right to work for any employer in Canada. Non-citizens’ right to work is restricted by a statutory requirement to obtain a work permit. When employers make a distinction between job candidates on the basis of a person’s immigration status it may lead to an allegation of discrimination on th...Continue reading

IMPERMISSIBLE SUBDIVISION OF A TERMINATION CLAUSE (this article originally appeared in the Law Times on August 20, 2018 at p 7) Enforceability of a termination clause in a written employment contract continues to be a vexing legal issue. An employment case in point is the Court of Appeal for Ontario decision in Amberber v. IBM Canada Ltd., 2018 ONCA 571, which clarified that subdivision of a termination clause into constituent parts and their subsequent individual interpretat...Continue reading

Withdrawal of an Uninformed Guilty Plea (this article originally appeared in the Lawyer's Daily on June 29, 2018) A guilty plea constitutes a formal admission of guilt to the crime with which an accused is charged. It relieves the Crown of its burden to prove guilt beyond a reasonable doubt and constitutes a waiver of constitutional right to a trial. The accused’s decision to plead guilty is, thus, fundamentally subjective and deeply personal....Continue reading

FORMER EMPLOYER LIABLE FOR UNDISCOVERED CLAIMS (this article originally appeared in the Law Times on June 4, 2018, p 7) In MacIvor v. Pitney Bowes, 2018 ONCA 381, the Court of Appeal for Ontario determined that an employee could benefit from his former employer’s LTD coverage, even though he did not discover the disability until after he began working for another employer. In the court’s view, the exclusionary language of the Manulife Policy did not limit the LTD coverage to ...Continue reading

HABEAS CORPUS AND THE IMMIGRATION DETENTION OF NON-CITIZEN (this article originally appeared in the Lawyer’s Daily on May 30, 2018) Immigration detentions of non-citizens must only be for an immigration-related purpose. Undoubtedly, a detention is never pleasant. However, it is not the detention itself, or even its length, that is objectionable, but its unlawfulness. Often non-citizens are being detained on a faulty factual premise, inadvertent errors or criminal charges with...Continue reading

Mr. Chsherbinin will speak at CLE B’nai Brith Seminar on May 29, 2018. His topic is: legal concepts, issues and pitfalls that arise from the dismissal of a family member in the context of a family business. You are invited to attend.

WORKING FROM HOME AN ESSENTIAL TERM IN CONTRACT (this article originally appeared in the Law Times on April 9, 2018, p 7) There is a remarkable range of differences in employers’ conduct that has been found to amount to constructive dismissal. In most constructive dismissals, the operative question is whether the unilateral change introduced by the employer to a significant term of the employment contract amounted to its repudiation. A good example is a recent employment case...Continue reading

Vexing Termination Clauses (this article originally appeared in the Law Times on February 4, 2018, p 7) A question of enforceability of termination clauses turns on the wording of the clause, the purpose and language of the Employment Standards Act, 2000, and the jurisprudence on interpreting employment agreements....Continue reading