Instructors

Gillian P. Demeyere (519) 672-2562 Click here for email

Matthew L.O. Certosimo Borden Ladner Gervais LLP (416) 367-6068 Click here for email

These statutes are available free of charge, on-line at:

Employment Standards Act, 2000: http://192.75.156.68/DBLaws/Statutes/English/00e41_e.htm

Human Rights Code: http://www.ohrc.on.ca/english/code/hr-code.pdf

Occupational Health and Safety Act: http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90o01_e.htm

1. 25% - Short Essay

The purpose of the short essay requirement is to encourage you to think deeply about at least one issue in our readings or class discussions. You are required to write a short essay in which you present an argument or defend a position on an issue in employment law. You are free to select any topic arising from the readings (including cases) and class discussion. For example, you might argue that a line of cases is incoherent or defend a decision that was criticized in class discussion. You might present an argument for changing the current state of the law or for maintaining existing law despite widespread criticism. You might alternatively respond to all or part of one of the articles included in Volume One of the course materials. These are just a few suggestions. To ensure the suitability of your proposed topic, you are strongly encouraged to discuss the topic with Gillian Demeyere, the instructor who will be responsible for grading the essays.

Additional research is neither expected nor required. Any sources upon which you do rely (even if only for ideas), however, must be cited. Your essay should be between 5 and 8 double-spaced typewritten pages. Longer is not necessarily better. A focused and well argued essay of 5 pages will be far more successful than an unfocused rant of 8. The essay is due at the beginning of class on the last day of classes (April 16, 2003).

2. 25% - Mediation Brief

The mediation brief will require you to apply, in a practical context, some of the law covered in the course. Mediation is now a common stage in employment litigation; typically, each party is required to submit a written brief, outlining the issues, key facts relied upon, and interests, throughout which reference to the applicable law is often made. You will be asked to represent either the employee or employer in a fact scenario to be handed out on (or about) March 24., 2003. Your written brief, of no more than 8 to 10 double-spaced pages, will due at the beginning of class on April 7, 2003. Questions about the mediation brief should be directed to Matthew Certosimo, the instructor responsible for assigning and grading the mediation briefs.

3. 50% - Final Exam (2 hours, open book)

Class Schedule and Readings

Monday, February 10
Introduction and overview of the course

No Readings

Wednesday, February 12
The Employment Relationship in Historical Perspective
(Demeyere)

1. The Statute of Labourers, 1351
2. The Status of Master and of Servant
3. The (Incomplete?) Transition from Status to Contract
4. The Uniqueness of the Contract of Employment
5. Back to Status? Or an Ongoing Transition from Status to Contract?

Required Readings:
Peter Laslett, "English Society Before and After the Coming of Industry"
William Holdsworth, "The Free Labourer"
William Blackstone, "Of Master and Servant"
Otto Kahn-Freund, "Blackstone's Neglected Child: The Contract of Employment"

Optional Readings:
R.W. Rideout, "The Contract of Employment" (1966) Current Legal Problems 111.
Otto Kahn-Freund, "A Note on Status and Contract in British Labour Law" (1967) 30 Mod. L. Rev. 635.
Brian W. Haines, "English Labour Law and the Separation from Contract" (1980) 1 J. Legal History 262.
Sanford M. Jacoby, "The Duration of Indefinite Employment Contracts in the U.S. and England: An Historical Analysis" (1982), 5 Comp. Lab. Law 85.
Judith Fudge, "New Wine into Old Bottles? Updating Legal Forms to Reflect Changing Employment Norms" (1999) 33 U.B.C. Law Review 129.

Monday, February 17
Who is an Employee?
(Certosimo)

Required Readings:
Armstrong v. Mac's Milk Ltd. et al (1975), 7 O.R. (2d) 478 (H.C.J.)
Mayer v. J. Conrad Lavigne Ltd. (1979), 27 O.R. (2d) 129 (C.A.)
Wiebe Door Services Ltd. v. Canada (M.N.R.) [1986] 5 W.W.R. 450 (Fed. C.A.)
Joey's Delivery Service v. N.B. (W.H.S.C.C.) [2001] N.B.J. No. 222 (N.B.C.A.)
Carter v. Bell & Sons (Can.) Ltd.[1936] O.R. 290 (C.A.)

Optional Readings:
Canada Customs and Revenue Agency's summary (what Matt referred to in class as a "cheat sheet") of the tests and factors used in determining whether an individual is an employee or an independent contractor can be found at: http://www.ccra-adrc.gc.ca/E/pub/tg/rc4110/rc4110ed.html

Wednesday, February 19
Formation of the Contract of Employment
(Demeyere)

1. Negligent Misrepresentation
2. Allurement/Enticement/Inducement
3. Intentional Interference with Contractual Relations
4. Anticipatory Breach
5. Offer, Acceptance, Consideration

Required Readings:
Queen v. Cognos Inc. (1993), 45 C.C.E.L. 153 (S.C.C.)
Levi v. Chartersoft Canada Inc. (1994), 8 C.C.E.L. (2d) 10 (Man. Q.B.)
Wallace v. Toronto-Dominion Bank (1983), 41 O.R. (2d) 161 (Ont. C.A.)
Francis v. Canadian Imperial Bank of Commerce (1994), 21 O.R. (3d) 75 (C.A.)
Techform Products Limited v. Wolda [2001] O.J. No. 3822 (Ont. C.A.)

Optional Readings:
Geoff England, "Chapter 7: The Formalities of Hiring: Making the Contract of Employment" in Employment Law in Canada. On 2 hour reserve in Law Library. Call no. KF 3457.c57 (1998)
Horton v. Rio Algom Ltd. (1995), 9 C.C.E.L. (2d) 180 (Ont. Ct. Gen. Div.) [negligent misrepresentation]
Grant v. Oracle Corp Canada Inc. (1995), 8 C.C.E.L. (2d) 1 (Man. Q.B.) [negligent misrepresentation]
Lewis v. Coles (1993), 47 C.C.E.L. 302 (B.C.S.C.) [negligent misrepresentation]
J. Clark and M. Hall, "The Cinderella Directive: Employee Rights to Information about Conditions Applicable to their Contract or Employment Relationship" (1992), 21 Industrial Law Journal 106.

Monday, February 24
Express and Implied Terms under the Contract of Employment
(Demeyere)

1. General Principles of Enforceability and Interpretation (problems of consideration, duress, unconsionability, mistake, illegality, contra proferentem, parol evidence rule, estoppel)

2. Implied Terms
(a) Implied-in-Fact (unstated intentions, past practice)
(b) Common Law (managerial prerogative, duty to serve, inventions, reasonable notice, the emerging duty of good faith and fairness)
(c) Statute (ESA, HRC, OHSA)

3. Express Terms
(a) Fixed term contracts
(b) Termination provisions
(c) Provisions dealing with dismissal for cause
(d) Employer promises of fairness in treatment
(e) Employer promises of job security
(f) Management rights/Job description provisions
(g) Provisions regarding probationary status

Required Readings:
Machtinger v. HOJ Industries (1992), 40 C.C.E.L. 1 (S.C.C.)
King v. Gulf Canada Ltd. [1992] O.J. No. 2761 (Ont. C.A.)
Ceccol v. Ontario Gymnastic Federation (2001), 11 C.C.E.L. (3d) 167 (Ont. C.A.)
Stein v. British Columbia (Housing Management Commission) (1992), 41 C.C.E.L. 213 (B.C.C.A.)

Optional Readings:
Adams v. Comark (1993), 42 C.C.E.L. 15 (Man. C.A.) [frequent flyer points; past practice grounds for term implied-in-fact]
Truckers Garage Inc. v. Krell (1993), 3 C.C.E.L. (2d) 157 (Ont. C.A.) [express term regarding cause for dismissal subject to duty of good faith and fairness]
Singh v. BC Hydro (2001), 12 C.C.E.L. (3d) 214 (B.C.C.A.) [non-contractual promise of job security]
Snelling v. Tenneco Canada Inc. (1992), 40 C.C.E.L. 122 (B.C.S.C.) [express term entitling employer to make changes in responsibilities subject to duty of good faith and fairness]
Christensen v. Family Counselling Centre of Sault Ste Marie (2001), 12 C.C.E.L. (3d) 165 (Ont. C.A.) [ambiguous termination provision with four possible interpretations]

Wednesday, February 26
Ontario Human Rights Code: Discrimination in Employment
(Demeyere)

1. Scope and Purpose of Human Rights Legislation
2. Human Rights Prohibitions as Restrictions on Managerial Prerogative
3. Protected Grounds under the Code
4. Meanings of "Discrimination" and "Equality" under the Code
5. Prohibitions against Discrimination in Hiring
6. The Duty to Accommodate

Required Readings:
Seneca College v. Bhadauria [1981] 2 S.C.R. 181.
British Columbia (P.S.E.R.C.) v. B.C.G.S.E.U. [1999] 3 S.C.R. 3.
Oak Bay Marina Ltd. v. B.C. (H.R.C.) [2002] B.C.J. No. 2029 (B.C.C.A.)

Optional Readings:
Ontario (Ministry of Community & Social Services) v. O.P.S.E.U. (2000), 50 O.R. (3d) (Ont. C.A.)
Entrop v. Imperial Oil Ltd. (2001), 50 O.R. (3d) 18 (Ont. C.A.)
John Gardner, "Discrimination as Injustice" (1996), 16(3) Oxford Journal of Legal Studies 353.
Ontario Human Rights Commission's Guide to Hiring
Canadian Human Rights Reporter
Colleen Sheppard, "Of Forest Fires and Systemic Discrimination: A Review of British Columbia (Public Service Employee Relations Commission v. B.C.G.S.E.U." (2001), 46 McGill Law Journal 533.
Judith Keene, "The Ontario Human Rights Code and the Right to Accommodation in the Workplace for Employees with Disabilities" (2001), 16 Journal of Law and Social Policy 185.



Monday, March 3 - Class Cancelled

Wednesday, March 5
Ontario Human Rights Code: Harassment in the Workplace & Jurisdiction, Procedure and Remedies under the Code
(Demeyere)

1. Procedural Issues
(a) Role of the complainant
(b) Grounds for dismissal of complaint
(c) Remedies
(d) Employer Liability

2. Sexual Harassment
(a). Is it sex discrimination?
(b) Definitions under the Code
(c) Remedies
(d) Employer Liability
(e) Common law actions

Required Readings:
Janzen v. Platy Enterprises Ltd. (1989), 59 D.L.R. (4th) 352 (S.C.C.)
Robichaud v. Canada (Treasury Board) (1987), 40 D.L.R. (4th) 577 (S.C.C.)
Drummond v. Tempo Paint and Varnish Co. (1999), 33 C.H.R.R. D/184 (Ont. Bd.Inq.)

Optional Readings:
Ontario Human Rights Commission's Policy on Sexual Harassment
Colleen Sheppard, "Systemic Inequality and Workplace Culture: Challenging the Institutionalization of Sexual Harassment" (1995), Canadian Labour and Employment Law Journal 249.
Fay Faraday, "Dealing with Sexual Harassment in the Workplace: The Promise and Limitations of Human Rights Discourse" (1994), 32 Osgoode Hall Law Journal 33.
Kathleen A. Kenealy, "Sexual Harassment and the Reasonable Woman Standard" (1992), 8 The Labor Lawyer 203.



Monday, March 10
Employment Standards
(Certosimo)

Required Readings:
Ontario Employment Standards Act, 2000

Optional Readings:
Judy Fudge, "Flexibility and Feminization: The New Ontario Employment Standards Act" (2001), 16 Journal of Law and Social Policy 1.

Wednesday, March 12
Occupational Health and Safety
(Certosimo)

Required Readings:
Occupational Health and Safety Act
R. v. Timminco (2001), 54 O.R. (3d) 21 (C.A.)

Optional Readings:
(will be posted later)

Monday, March 17
Constructive Dismissal
(Certosimo)

Required Readings:
Black v. Second Cup Ltd. [1995] O.J. No. 75; 8 C.C.E.L. (2d) 72 (Ont. Ct. Gen. Div.)
Shah v. Xerox Canada Ltd., [2000] O.J. No. 849 (C.A.)
Michaud v. RBC Dominion Securities Ltd., [2001] B.C.J. No. 711 (B.C.S.C.)
Michaud v. RBC Dominion Securities Ltd. (B.C.C.A.)
Lavergne v. Meloche Windows Ltd. [2001] O.J. No. 932 (S.C.J.)
Moore v. University of Western Ontario (1985), 8 C.C.E.L. 157 (Ont. H.C.J.)
Mifsud v. MacMillan Bathurst Inc. (1989), 70 O.R. (2d) 701 (C.A.)

Optional Readings:
(will be posted later)

Wednesday, March 19
Frustration & Resignation
(Certosimo)

Required Readings:
Thomas v. Lafleche Union Hospital Bd (1989), 27 C.C.E.L. 156 (Sask Q.B.) , aff'd 36 C.C.E.L. 251 (Sask. C.A.).
Lane v. Canadian Depository for Securities Ltd. (1993), 49 C.C.E.L. 225 (Ont. Ct. Gen. Div.)
Maguire v. Sutton (1998), 34 C.C.E.L. (2d) 67 (B.C.S.C.)

Optional Readings:
(will be posted later)

Monday, March 24
Just Cause for Dismissal
(Certosimo)

Required Readings:
Dooley v. C.N. Weber Ltd. (1994), 3 C.C.E.L. (2d) 95 (Ont. Ct. Gen. Div.).
Bannister v. General Motors of Canada (1994), 8 C.C.E.L. (2d) 281 (Ont. Ct. Gen. Div.)
Gonsalves v. Catholic Church Extension Society of Canada, [1998] O.J. No. 3404 (C.A.)
Simpson v. Consumers' Assoc. of Canada et al (2001), 57 O.R. (3d) 351 (C.A.)
Matheson v. Matheson International Trucks Ltd. (1984), 4 C.C.E.L. 271 (Ont. H.C.J.)
Ditchburn v. Landis & Gyr Powers Ltd. (1995), 16 C.C.E.L. (2d) 1 (Ont. Ct. Gen. Div.)
Ditchburn v. Landis & Gyr Powers Ltd. (1997), 101 O.A.C. 72 (Ont. C.A.)
Backman v. Hyundai Auto Canada Inc. (1990), 33 C.C.E.L. 300 (N.S.S.C.)
Ennis v. Canadian Imperial Bank of Commerce, [1986] B.C.J. No. 1742 (B.C.S.C.)
Fonceca v. McDonnell Douglas Canada Ltd. (1983), 1 C.C.E.L. 51 (Ont. H.C.J.)

Optional Readings:
(will be posted later)

Wednesday, March 26
Just Cause for Dismissal (cont'd)
(Certosimo)

Required Readings:
Jewitt v. Prism Resources Ltd. (1980), 1 C.C.E.L. 308 (B.C.C.A.).
Homer v. Rocca (1988), 20 C.C.E.L. 287 (N.B.C.A.)
Helbig v. Oxford Warehousing Ltd. et al (1985), 51 O.R. (2d) 421 (C.A.)
Mison v. Bank of Nova Scotia, [1994] O.J. No. 2068 (Ont. C.J.)
Pliniussen v. University of Western Ontario (1983), 2 C.C.E.L. 1 (Ont. Co. Ct.)
McKinley v. BC Tel, [2001] S.C.J. No. 40.
Dowling v. Halifax (City) (1996), 136 D.L.R. (4th) 352 (N.S.C.A.)
Dowling v. Halifax (City), [1998] S.C.J. No. 1.

Optional Readings:
(will be posted later)

Monday, March 31
Reasonable Notice
(Demeyere)

Required Readings:
Bardal v. Globe and Mail (1960), 24 D.L.R. (2d) 140 (Ont. H.C.)
Garvin v. Rockwell International of Canada Ltd. (1993), 50 C.C.E.L. 295 (Ont. Ct. Gen. Div.)
Cronk v. Canadian General Insurance Company (1995), 14 C.C.E.L. (2d) 1 (Ont. C.A.)
Minott v. O'Shanter Development Company Ltd. (1999), 40 C.C.E.L. (2d) 1 (Ont. C.A.)
Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (C.A.)
Neilson v. Vancouver Hockey Club Ltd. (1988), 20 C.C.E.L. 155 (B.C.C.A.)

Optional Readings:
(will be posted later)

Wednesday, April 2
Damages
(Demeyere)

Required Readings:
Ryshpan v. Burns Fry Ltd. (1995), 10 C.C.E.L. (2d) 235 (Ont. Ct. Gen. Div.)
Stevens v. Globe and Mail et al (1992), 39 C.C.E.L. 1 (Ont. Ct. Gen. Div.)
Sills v. C.A.S. of the City of Belleville et al (2001), 53 O.R. (3d) 577 (C.A.)
Wallace v. United Grain Growers Ltd. (1997), 152 D.L.R. (4th) 1 (S.C.C.)

Optional Readings:
(will be posted later)

Monday, April 7
Post-Termination Issues
(Certosimo)

Required Readings:
Canadian Aero Service Ltd. v. O'Malley (1973), 40 D.L.R. (3d) 371 (S.C.C.)
Barton Insurance Brokers Ltd. v. Irwin (1999), 40 C.C.E.L. (2d) 159 (B.C.C.A.)
Lyons v. Multari, [2000] O.J. No. 3462 (C.A.)
Danyluk v. Ainsworth Technologies Inc., [2001] S.C.J. No. 46.
Blackmore v. Cablenet Ltd. (1994), 8 C.C.E.L. (2d) 174 (Alta Q.B.)
Korach v. Moore and Board of Education (Windsor) (1990), 76 D.L.R. (4th) 506 (Ont. C.A.)

Optional Readings:
(will be posted later)

Wednesday, April 9
Employment Law: Critical Perspectives
(Demeyere)

Required Readings:
David M. Beatty, "Labour is not a Commodity"
Katherine Swinton, "Contract Law and the Employment Relationship"
Hugh Collins, "Market Power, Bureaucratic Power, and the Contract of Employment"

Optional Readings:
(will be posted later)

Monday, April 14
Employment Law: Critical Perspectives (cont'd)
(Demeyere)

Required Readings:
Hugh Collins, "Civil Liberties in the Shadow of Managerial Prerogative"
Richard A. Epstein, "In Defense of the Contract at Will"
Lochner v. New York

Optional Readings:
(will be posted later)

Wednesday, April 16
Review Class

No Readings

Q. You mentioned in class yesterday that instead of buying the materials for the course we may be able to get by just reading the cases on QL.  Before deciding whether to buy the course pack I was wondering if any of the cases reproduced in the materials have been edited? 

A. For the most part, the cases are not edited (or only lightly edited to take out irrelevant discussions of, for example, costs and procedure.)  The following cases, however, have been subject to more intrusive editing:

Joey's Delivery Service (p. 18) - This case doesn't really add anything new but has been included in the materials because it contains a very useful summary of the law governing the question of who is an employee (especially paragraphs 73-102.) Paragraphs 14-39 of the majority decision and the entire dissenting opinion have been omitted from the version in the course materials.

Entrop v. Imperial Oil (p. 216) -This case, dealing with drug testing, has been edited for length, by removing the some of the passages dealing with procedural points.  Paragraphs 17-25 and 41-43 have been omitted.  It is still a rather lengthy decision and deals with a discrete issue in human rights so you would be fine to be without a copy of the decision; everything you need to know about this case will be covered in class.  It has been included for those who wish to pursue the issue of drug testing in more depth for their short essay.

Wallace v. United Grain Growers (p. 466) - The portions of this case dealing with the bankruptcy issue (whether a bankrupt can claim damages for wrongful dismissal) have been omitted.  Paragraphs 11-14, 21-26, and 114 have been deleted.

Danyluk v. Ainsworth Technologies (p. 705) - While this case has not been edited, it is rather lengthy and you would be fine without a copy of it.  The case deals with issue estoppel which is also discussed in Minott v. O'Shanter (which also deals with reasonable notice).  Given Minott, class discussion of the issue and the relatively minor significance of issue estoppel in this course, if you are looking to save time and costs, you could skip this case.

Q. In class you mentioned that the basic approach in employment law is that once you have an offer, acceptance and a start date, you have a binding employment contract.  This was mentioned in relation to allurement in Levi v. Chartersoft, however the Chartersoft case does not appear to be authority for this proposition.  Do you know where this comes from?  I haven't been able to find an authority for it.  A related question is, in those circumstances, what constitutes consideration?

A. Yes, the general rule seems to be that once there has been an offer and an acceptance of that offer, there exists a binding contract between the parties. The element of consideration presumably consists in the exchange of promises, i.e., the employee's promise to work and the employer's promise to provide and pay for the work. The best authority for this proposition is Francis v. CIBC. As you will recall, in that case, a written contract of employment proferred by the employer after the employee had commenced work was found to be unenforceable in the absence of "fresh consideration." The decision in Francis (and others like it), therefore, seem to suggest that the contract was fully formed before the employee started work (i.e.,  once the employee has accepted the employer's offer and, as in Francis, has satisfied any conditions attached to the employer's offer.)

However, the most that can be said is that this seems to be the general rule. As far as I know, there is no clear statement -- judicial or otherwise-- which states that the contract of employment crystallizes upon the employee's acceptance of the employer's offer (or in rare cases, upon the employer's acceptance of the employee's offer). The absence of any clear statement or consensus on the issue, I speculated in class, might be the result of lingering elements of master and servant law. Under early employment contract law, it was understood that the contract of service could not be complete until the servant actually started working. This way of thinking coincides with the general understanding that the consideration passing to the master under the agreement consisted of not merely labour, but in some vague sense, the person of the servant. When the relationship is understood in this way, it seems odd to think of a master "owning" or having control over the person of a servant when that servant is not yet in the master's "possession."

I mentioned the Levi case in the context of this question because it arguably reveals how courts remain uncertain on the issue of when the contract of employment is fully formed. In Levi, the court found that the plaintiff had been wrongfully dismissed the day before he was expected to begin in the position. This finding would seem to suggest the contract was in force before the plaintiff was scheduled to begin work. However, at one point, the court states that it finds "that the parties had intended to enter into a one-year contract of employment." It's unclear whether this statement is meant to address the existence or duration of the contract. I can see how my discussion of Levi only further complicated matters. In any event, the important thing to take from Levi for the purposes of this course is the the existence of the tort of inducing breach of contract. The plaintiff's claim in tort against the defendant Lee failed because the court found that Lee, in recommending the termination of the plaintiff's contract, was acting in good faith and within his authority as president of Chartersoft.

Q. Could you clarify for me what the relationship is between a constructive dismissal and what follows.  Once a person has been constructively dismissed, can they then also be dismissed without cause from the position they occupy immediately after the constructive dismissal but while they're still working for the same employer?  My understanding is that once the person has been constructively dismissed, they are still an employee and bear all the rights that flow from that status.  Is that correct?

A. Yes, you are correct. If an employee feels that he or she has been constructively dismissed through a fundamental, unilateral change by the employer to the terms or conditions of employment, he or she is then in a position to "accept" the employer's repudiatory conduct and treat the contract as at an end. Note that "accepting" the repudiatory conduct does not mean "agreeing with" or "condoning." Quite the opposite. To accept repudiatory conduct is to state that you regard the conduct as repudiatory (in violation of the contract) and therefore the contract as at an end. If the employee accepts the repudiatory conduct, the contract is at an end. If the employee remains in the employ of the company following the alleged constructive dismissal in order to mitigate his or her damages (which, given Mifsud, the employee is well advised to do within the bounds of reasonableness), it as though a new contract has been formed between the parties. You are then, in a sense, back to square one in assessing the rights and obligations of the parties during this mitigation period. So, for example, the question of whether the employee concerned is in fact an employee (rather than an independent contractor) during the mitigation period will depend on the nature of this second contract formed during the mitigation period. Conceivably, the alleged constructive dismissal could consist in changes to the terms and conditions of employment which amount to a change in the employee's status from "employee" to "independent contractor." If the employee stays on in the new position in order to mitigate, the nature and extent of his or her rights during the mitigation period will depend first on whether he or she is in fact an employee or independent contractor.

Q. Matt mentioned in class that supervisors and managers are exempt from overtime entitlement under the ESA. I know that the threshold provision is section 22 and I understand the definition of "employee" in section 1 but where is it said that supervisors and managers are not entitled to overtime under the Act?

A. The answer can be found in s.8 of Regulation 285/01 of the ESA.  That Regulation contains all kinds of exemptions from the Act.  Exemptions from notice of termination and severance pay are found in Regulation 288/01.

Q. For the mediation brief assignment, it seems to me that all the prerequisites are there for an oral contract, as long as we assume a start date was set.  However, the lawyer wants to bring an action for negligent misrepresenation. However, you can't bring an action for negligent misrepresentation for something that is expressly included in the
contract. Wouldn't Pat's only rememdy be to sue under the actual contract?

A. An employer may defend an action in negligent misrepresentation arising out of pre-contractual negotiations or interviews by pointing to the contract subsequently agreed to by the parties.  If the contract corrects or clarifies
any representations made prior to the signing of the contract, the employer will have a good defence against an action in negligent misrepresentation.  So, for example, if the contract in Queen v. Cognos had expressly said something
like: "Funding for this project is subject to approval and the company makes no guarantees" then Mr. Queen would not have been able to say that he had been misled into believing that funding had been secured.  However, what we learn from Queen v. Cognos is that for a contract to be a defence to negligent misrepresentation, the contract must expressly and clearly correct any previous misrepresentations (omissions or misleading information).  In Queen v. Cognos, the employer tried to point to terms in the contract providing for termination of employment and the employer's right to transfer the employee as evidence that Queen was unreasonable to assume that funding for the project had been secured.  In the end, the SCC held that neither of those terms sufficiently corrected the incorrect impression left with Queen that funding for the project was secure and therefore, he had no reason to question the security of the position at Cognos.

Now, another thing to remember is that for a contract to be a defence to negligent mispresentation (or any other action), the contract itself must be valid.  So if the contract was signed under duress, or was signed without "fresh" consideration after the individual commenced employment, or if the relevant provisions are in violation of the ESA, then the employer will be left without a defence.  

It is also important to remember that an oral contract is every bit a contract as a written contract.  So, it might be argued in the mediation brief assignment that the subsequent written contract was an attempt to alter the terms of the pre-existing (oral) contract between the parties (meaning that the written contract may be unenforceable according to Francis v. CIBC).

Q. In what situations can an employee sue the employer personally?  If I remember correctly from company law, it's when the employer would be found to be acting outside of their position of employment.  However, I suspect this isn't correct in this situation.  Could you point me in the right direction?

A. You are right.  An employer will only be held personally liable where he/she has acted outside of his/her professional capacity.  So, for example, in Levi v. Chartersoft, the defendant Levi sued both Chartersoft (for wrongful dismissal) and Lee, the president of the company (in tort for intentional interference with contractual relations).  The court denied the claim in tort against Lee on the grounds that Lee was acting within his authority by recommending Levi's termination.  However, the action against the company was allowed and Levi was entitled to one year's salary under the one-year fixed term contract.

Note that even though Lee was "wrong" to terminate Levi's contract (in the sense that Levi was entitled to damages for breach of contract), Lee himself was not held liable.  So merely committing a legal wrong will not necessarily take an individual out of his/her professional capacity, thereby opening themselves up to personal liability.

As for the mediation brief assignment, I think you would be best to assume that all of Bud's actions are taken to be those of the employer O.E.  Nothing in the facts, it seems to me, suggests that Bud went beyond his professional capacity as president.  What he did might have been "wrong" in the sense that it might open the company to liability but his conduct, in itself, does not represent a a significant departure from his professional role.