Canada: Law Firm Loses To Ex-Lawyer Over Unpaid Vacation And Holiday Pay

Last Updated: July 11 2018
Article by Bruce Graham and Joseph Byram


When an employment relationship ends, nothing gives lawyers more confidence than a well drafted employment agreement. But sometimes even lawyers (while acting as employers) don't get it right. RG Bissett Professional Corp v Kusick, 2018 ABQB 406, highlights why it is crucial to keep up to date and accurate employment records while ensuring that employee entitlements and duties are clearly spelled out in employment agreements. Failure to do so can have significant financial consequences.


David Kusick ("Kusick") was employed as a lawyer with Stringam Denecky LLP ("Stringam"). After Kusick resigned from Stringam, he filed an Employment Standards complaint for unpaid vacation and holiday pay. The dispute reached the Alberta Court of Queen's Bench after an Employment Standards Officer and Provincial Court Umpire ruled against the employer law firm.

Kusick started working for Stringam on April 18, 2005. On November 23, 2009, he signed a revised employment agreement that contained the following provision regarding compensation ("Clause 3"):

 "The Partners will pay David a gross salary of 40% his months receipts of fees, inclusive of vacation pay entitlement [...]".

The dispute between the parties largely stemmed from the wording of this clause. For the reasons set out below, the Employment Standards Officer awarded Kusick $33,280.14 for unpaid vacation pay and $19,746.32 for unpaid general holiday pay for the two-year period before Kusick's employment ended. Both of Stringam's appeals were unsuccessful.  


Two overlapping issues formed the basis of the award against Stringam.

First, was the problem of merging holiday pay and vacation pay. Stringam argued that vacation pay and holiday pay were interrelated concepts, with holiday pay impliedly included in vacation pay. In other words, Stringam argued that a singular term referred to both concepts and that this was the understanding of the parties when the employment agreement was entered into.

This argument was rejected on the basis of the clear distinction in the Employment Standards Code ("Code") between holiday pay and vacation pay. Specifically, holiday pay refers to pay for general holidays (e.g., Labour Day, Canada Day, Remembrance Day etc.). Vacation pay, on the other hand, refers to the percentage of wages an employee must be paid each year depending on the employee's vacation entitlements. The legislation governing the calculation, application, and operation of these two concepts is decidedly separate.

Since the employment agreement did not explicitly address holiday pay, it was determined that Stringam had failed to pay Kusick such amounts during the course of his employment. Accordingly, Kusick was awarded $19,746.32 for unpaid holiday pay for the previous two years, the maximum period generally permitted by the Code.

The second award against Stringam was based on its failure to keep accurate employment records, as required by section 14 of the Code. This provision requires employers to keep different components of earnings, such as overtime, termination pay, vacation pay, holiday pay, etc., separate from each other. 

Here, Stringam did not record vacation pay separately from Kusick's general receipts, even though it purported to pay Kusick vacation pay pursuant to Clause 3. Thus, Stringam could not prove that it had compensated Kusick for vacation pay during the course of his employment – even though the law firm may properly have done so. By lumping vacation pay together with Kusick's wages, Stringam failed to fulfill its obligations under the Code to keep records that separately showed each component of the earrings. According to the Umpire in R. G. Bissett Professional Corporation v Kusick, 2017 CanLII 15629 (AB ESU) at para 26:

I find that Clause 3 of the Agreement is inconsistent with Stringam's record keeping obligations under s. 14(1)(c) and its obligations under s.14(2) of the Code to provide Kusick with a written statement separating out his vacation and holiday pay. Accordingly, pursuant to s. 4 of the Code, Clause 3 amounts to an agreement that a provision of the Code does not apply, and is therefore against public policy and void. [Emphasis added]

In the result, Kusick was awarded $33,280.14 for unpaid vacation pay.


This decision affirms that entitlements and obligations need to be clearly outlined out in employment agreements. Vacation pay and holiday pay are distinct concepts in law and assumptions that one includes the other are unlikely to be upheld, despite the parties' intentions at the time the contract is formed.

Further, employers must ensure that they keep complete and accurate employment records. Stringam's failure to do so was incurable, despite its argument that Clause 3 properly paid Kusick his vacation pay entitlements. Properly maintained records bolster an employer's ability to defend against a claim, particularly since courts will almost always resolve ambiguities in favour of employees.

Read the original article on

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
7 Nov 2019, Seminar, Birmingham, UK

Providing content specifically tailored to the needs of GCs and Heads of Legal working in government organisations and their affiliates.

14 Nov 2019, Seminar, London, UK

Providing content specifically tailored to the needs of GCs and Heads of Legal working in government organisations and their affiliates.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions