The recent decision of the British Columbia Court of Appeal in
Rosas v. Toca, 2018 BCCA 191 has changed the law of
contract variation. This decision will be important for employment
lawyers to consider when varying employment agreements or enforcing
amended agreements.
The law was settled that consideration — the payment or
benefit exchanged for a contractual action or promise — is a
fundamental requirement to establish that a contract is
enforceable. If you want the right to sue on a promise made, you
have to purchase the right.
In the employment context, consideration has always been
required to support changes made to an employment contract during
employment. An employer cannot enforce a change to an employment
contract, such as the introduction of a limitation on termination
pay or a non-solicitation covenant, unless it has given the
employee something new of value in exchange. A variation to an
existing employment contract that is not supported by
