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Let's talk antitrust: Discussing recent cases and emerging competition issues
Recent cases and judgments have shone a light on some emerging themes and trends that companies will want to consider as part of their risk management framework.
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Canada | Publication | February 9, 2023
The Supreme Court of British Columbia came out swinging in the first week of the new year with a decision on termination provisions in written employment agreements that is positive for employers.
In McMahon v Maximizer Services Inc., the plaintiff, who was employed for less than a year before her employment was terminated, challenged the enforceability of the termination clause in her employment agreement, seeking damages equivalent to six months’ pay in lieu of notice. The defendant had paid her two weeks’ base salary in lieu of notice of termination in accordance with the “termination without cause” clause in the written agreement, which read in part:
Maximizer will provide the greater of:
(a) the notice (or payment in lieu) prescribed by the Employment Standards Act of BC as amended or replaced from time to time; and
(b) Two (2) weeks’ written notice of termination (or payment in lieu), PLUS an additional one (1) week for every completed year of service to a maximum of four (4) months (“severance”).
In the event Maximizer initiates termination and that termination involves the payment of severance, severance will be calculated using base salary only. (Note: Any unused vacation is payable by law, and would be in addition to severance). Other compensation elements … will not be considered in severance calculations.
The plaintiff argued the clause was invalid for a plethora of reasons, in particular that:
The court disagreed with the plaintiff, noting that these arguments were in essence asking it to dissect the words of the termination clause in an attempt to find any ambiguity that could be used to set aside the parties’ agreement. This approach had been rejected by previous judicial authorities in BC and other provinces. Instead, the court found the termination clause to be clear and upheld it as enforceable, dismissing the employee’s wrongful dismissal claim.
The McMahon decision is welcome news for BC employers. Nonetheless, the most prudent course of action remains to implement, at first instance, a clear and unambiguous termination clause that is compliant with applicable employment standards legislation, and to review the language regularly to ensure compliance with statutory requirements and best practice.
Video
Recent cases and judgments have shone a light on some emerging themes and trends that companies will want to consider as part of their risk management framework.
Publication
After a lacklustre finish to 2022 when compared to the vintage year for M&A that was 2021, dealmakers expected 2023 to see the market continue to cool in most sectors, in response to the economic headwinds of rising inflation (with its corresponding impact on financing costs), declining market valuations, tightening regulatory scrutiny and increasing geopolitical tensions.
Publication
On 18 September 2023, the CMA published its Initial Report (Initial Report) on AI Foundation Models (FM), supplemented in April 2024 with the publication of its “Update Paper” focused on potential antitrust risks associated with FMs and a “Technical Update Report” providing more detail on the development on FMs (collectively the “Reports”). Below, we consider these CMA publications.
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