By  Barry W. Kwasniewski

The Court of Appeal for Ontario released its reasons for decision in the case of Celestini v. Shoplogix Inc. on February 28, 2023. This was an appeal from the Superior Court of Justice in regard to the common law concept of “changed substratum”.

Briefly, the changed substratum doctrine provides that where an employment position has fundamentally changed, the original written agreement between employer and employee should no longer apply as it does not reflect the actual role and duties of the employee. This is because an employment contract should accurately state what is expected of employees, and likewise, what employees can expect from their employer.

At common law, there is a positive duty on employers to provide reasonable notice before dismissing an employee without cause. The period of reasonable notice is determined by examining a number of factors, such as years of service, seniority, qualifications, etc. Employers and employees are free to contract out of these, provided that the statutory minimums under the Employment Standards Act, 2000 for an employee’s entitlements on termination are met.