In Commonwealth Bank of 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. Issued two months later, the Supreme Court of Canada went in a different direction. In Bhasin v. Hrynew, the Court crafted a new substantive doctrine of honest contractual performance, based on a newly-recognized central organizing principle of good faith in contract law. A few months later the Court applied the organizing principle of good faith to circumscribe the exercise of an employer’s discretion in Potter v. New Brunswick Legal Aid Services Commission. This article offers an assessment of the potential impact of Bhasin and Potter on the future direction of Canadian employment law.
International Journal of Comparative Labour Law and Industrial Relations