Over many years, Canadian courts have crafted a unique body of employment law jurisprudence. The purpose of this paper is to discuss how that jurisprudence was unraveled when the Supreme Court of Canada rendered its decision in Honda v. Keays. That holding, in effect, overturned aspects of Wallace v. United Grain Growers; a case that transformed how non-unionized employees were thought of and treated in Canadian society. This paper examines the analytical underpinnings of wrongful dismissal law’s previous regime on bad faith damages and juxtaposes it to the new regime in Keays, concluding that the shift in focus from employer misconduct to employee losses exacerbates the employment relationship’s power imbalance and deprives employees of protection when they need it the most. In reaching this conclusion, the paper uses the analytic frameworks of reflexive regulation and enterprise risk management to predict how employers will react to their newfound advantage. The finding is that by taking the risk out of termination, there is now downward pressure to do away with the normative “upwardly ratcheting” system of employment standards that workplaces enjoyed under Wallace.
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Ryan Henry Edmonds, "Taking the Risk out of Termination: An Enterprise Risk Management Analysis of the Normative System of Employment Standards Challenged by Honda v Keays" (2011) 20 Dal J Leg Stud 35.