The single case cited in argument for the plaintiff was Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986. The facts of that case were that two employees had employment contracts which allowed their employer to terminate them without cause. Under the provincial Employment Standards Act they were entitled to a minimum notice period of four weeks. After they were dismissed, the respondent employer paid each of them four weeks' salary. The employees commenced a civil action alleging wrongful dismissal. The issue was whether a dismissed employee with an employment contract stipulating a period of notice less than that required under the legislation is entitled to reasonable notice of termination or whether he is restricted to the minimum period of notice required by the Act. Iacobucci J. briefly discussed the section of the Employment Standards Act pertaining to civil remedies and said (at pp. 999-1000): It is also clear from ss. 4 and 6 of the Act that the minimum notice periods set out in the Act do not operate to displace the presumption at common law of reasonable notice. Section 6 of the Act states that the Act does not affect the right to an employee to seek a civil remedy from his or her employer … I have no difficulty in concluding that the common law presumption of reasonable notice is a "benefit", which, if the period of notice required by the common law is greater than that required by the Act, will, if otherwise applicable, prevail over the notice period set out in the Act. This decision, in my view, is not directly relevant to the case at bar as the issues are meaningfully divergent. In Machtinger the court did not address the doctrine of issue estoppel, nor did it focus on the interaction between statutory and common law rights and their respective enfor-ceability, other than to hold that the minimum standard is just that - a minimum. As such, it is my respectful view that the principles enunciated in Machtinger have no application to the facts in the application before me.
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