Document Type

Article

Publication Date

3-2016

Publication Title

International Journal of Comparative Labour and Industrial Relations

Keywords

Canadian Employment Law, Bhasin v. Hrynew, good faith, contract law

Abstract

In Commonwealth Bank Australia v Barker the High Court of Australia refused to impose an implied duty of mutual trust and confidence into the employment contract, reasoning that doing so would take the Court beyond its legitimate authority.[1] Issued a bare two months later, the Supreme Court of Canada went in a different direction. In Bhasin v. Hrynew, the Court acknowledged good faith as a central organizing principle of contract law, and announced a new duty of honest performance applicable to all contracts. A few months later the Court applied the new organizing principle of good faith to circumscribe the exercise of an employer’s discretion in Potter v. New Brunswick Legal Aid Services Commission.[2] This paper will assess the potential impact of Bhasin and Potter on the shape of Canadian employment law. In particular, it will reflect on whether these two cases open to the door to greater judicial oversight of the day-to-day interactions between employers and employees, an area as yet relatively unregulated by the Canadian common law.

[1] Commonwealth Bank of Australia v Barker [2014] HCA 32 (10 September 2014) [Barker]

[2] Bhasin v. Hrynew, 2014 SCC 71 [Bhasin]; Potter v. Legal Aid Services Commission, 2015 SCC 10 [Potter].

Comments

This is a pre-edited version of an article that has been accepted for forthcoming publication in the International Journal of Comparative Labour and Industrial Relations in 2016

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