Backdating software not trading
In summary, backdating is generally permissible where it is done to alter the obligations of the contracting parties only.
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However, to the company’s disappointment, these employees were not hired until after the company’s current employees filed their application to unionize, making the new employees unable to participate.
To cure this deficiency, the company, and their solicitor, backdated the contracts of the newly hired employees to a date before the application to unionize.
A court will generally not enforce the backdating provisions as between a taxpayer and the applicable tax enforcement agency (such as the Canada Revenue Agency).
In addition to misleading a third party, backdating may also be impermissible where it contravenes applicable rules or legislation.
The Court considered the construction of the whole policy and held that the exclusion clause took effect on the backdated date chosen by the parties.
Although backdating is generally permissible under the common law, a court will not give effect to backdating where the parties backdated the contract to mislead a third party.