Topic Index

The objective of this page is to allow users to find cases and posts relevant to specific topics and issues. By clicking on the links below, you will find a list of cases and a short summary of the decision. Links to blog posts about the case appear in the box to the right.

Summaries are not substantive and are not intended to replace individual analysis. Nothing contained on this blog is legal advice.

Wrongful Dismissal

Case and Importance In this Blog
For an overview of what wrongful dismissal is, see the page in the box to the right.
The determination of the appropriate notice period is a very fact-specific exercise and is calculated in accordance with numerous factors as set out in Bardal v. Globe and Mail Ltd., [1960] OWN 253 (ON HCJ) being the character of employment, the length of service, the age of the employee and the availability of similar employmentthe availability of other similar employment.

Length of Service

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The ‘rule’ that a dismissed employee is entitled to one month’s notice for every year of employment has been expressly and repeatedly rejected as a rule by the Ontario courts.
Minott v O'Shanter Development Company Ltd., 1999 CanLII 3686 (ON CA))
Employers are not to place too much emphasis on length of service, as it is just one factor to be taken into account.
Love v. Acuity Investment Management Inc., 2011 ONCA 130 (CanLII)

Availability of Similar Employment

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A non-competition agreement is a factor weighing in favour of a longer notice period.
Dimmer v. MMV Financial Inc., 2012 ONSC 7257 (CanLII)

Terms in Employment Agreement

Case and Importance In this Blog
If a termination provision in an employment agreement has the potential to violate the ESA, then it is illegal.
Wright v. The Young and Rubicam Group of Companies (Wunderman), 2011 ONSC 4720
If a termination provision in an employment agreement fails to account for the provision of benefits, then it is illegal.
Stevens v. Sifton Properties Ltd., 2012 ONSC 5508 (CanLII)
If a termination provision in an employment agreement exceeds the amount required by the ESA at the time of dismissal, then it can be enforced.
Musoni v. Logitek Technology Ltd., 2012 ONSC 6782 affd 2013 ONCA 622
A termination provision will only be deemed illegal if it is illegal at the actual time of termination.
Ford v. Keegan, 2014 ONSC 4989
Internal company policies not incorporated by reference into an employment agreement are not binding on employees.
Chawrun v. Bell Mobility Inc., 2013 BCSC 102 (CanLII)
The obligation for an employee to purchase shares in the employer signals an intention to create a long-term relationship, tending to extend the notice period.
Rodgers v. CEVA, 2014 ONSC 6583 (CanLII)

The Duty to Mitigate

Case and Importance In this Blog
For a general summary of the Duty to Mitigate consider this post:
An employee has a legal obligation to return to work for his employer in order to mitigate his damages unless he can show that doing so would expose him to embarrassment or hostility.
Evans v. Teamsters Local Union No. 31, 2008 SCC 20
Ghanny v 498326 Ontario Limited, 2012 ONSC 3276
In order for an employer to avail itself of the argument that an employee has failed to mitigate his damages by returning to work for the dismissing employer, the employer must offer the alternate position to the dismissed employee after termination, not before.
Farwell v. Citair, Inc. (General Coach Canada), 2014 ONCA 177 (CanLII)
Where an employment agreement provides for a fixed amount of severance, an employee has no duty to mitigate his damages.
Bowes v. Goss Power Products Ltd., 2012 ONCA 425 (CanLII)
The duty to mitigate does not require an employee to accept the first job that becomes available. The employee can take a reasonable amount of time to look for alternate employment.
Tsakiris v. Deloitte & Touche LLP, 2013 ONSC 4207 (CanLII)
The duty to mitigate does not require an employee to relocate to a new city until the passage of a reasonable amount of time.
Wellman v. The Herjavec Group Inc., 2014 ONSC 2039 (CanLII)
An employee has a legal obligation to return to work for his employer in order to mitigate his damages if he is mistakenly fired.
Chevalier v. Active Tire & Auto Centre Inc., 2012 ONSC 4309 (CanLII)
An employee's stated intention to retire is a factor may well be relevant in assessing what constitutes reasonable notice.
Kimball v Windsor Raceway Inc, 2014 ONSC 3286

Constructive Dismissal

Case and Importance In this Blog
Where an employer decides unilaterally to make substantial changes to the essential terms of an employee’s contract of employment and the employee does not agree to the changes and leaves his or her job, the employee has not resigned, but has been dismissed. Since the employer has not formally dismissed the employee, this is referred to as “constructive dismissal”. By unilaterally seeking to make substantial changes to the essential terms of the employment contract, the employer is ceasing to meet its obligations and is therefore terminating the contract. The employee can then treat the contract as resiliated for breach and can leave. In such circumstances, the employee is entitled to compensation in lieu of notice and, where appropriate, damages.
Farber v. Royal Trust Co., 1997 CanLII 387 (SCC), [1997] 1 SCR 846
Where the conduct of management personnel is calculated to cause an employee to withdraw from the employment, it may in my judgment, amount to constructive dismissal.
Shah v. Xerox Canada Ltd., 1998 CanLII 14747 (ON SC), aff'd 2000 CanLII 2317 (ONCA)
A fundamental implied term of any employment relationship is that the employer will treat the employee with civility, decency, respect, and dignity.
Lloyd v. Imperial Parking Ltd., 1996 CanLII 10543 (AB Q.B.)

Human Rights

Case and Importance In this Blog
The Ontario Superior Court of Justice has the power to award Human Rights damages in a wrongful dismissal case.
Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799
All that is required is that there be a “connection” between the adverse treatment and the ground of discrimination. The ground of discrimination must somehow be a “factor” in the adverse treatment.
Peel Law Association v. Pieters, 2013 ONCA 396
Discrimination on a prohibited ground need only be "a" factor leading to dismissal or unfair treatment in employment in order for damages for a human rights violation to be awarded.
Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799
Short term common ailments that can and are routinely experienced by just about everyone do not constitute a disability under the Ontario Human Rights Code.
Burgess v. College of Massage Therapists of Ontario , 2013 HRTO 1960 (CanLII)
It is a discriminatory practice to ask an employee to produce a doctor's note confirming that she is in a "normal" state of health before allowing her to return to work after an illness.
Thompson v. 1552754 Ontario Inc., 2013 HRTO 716 (CanLII)
Obesity is a “disability” under the Ontario Human Rights Code.
Lombardi v. Walton Enterprises, 2012 HRTO 1675 (CanLII)

The Duty to Accommodate

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The duty to accommodate includes both a substantive and a procedural element. To demonstrate undue hardship employers must demonstrate that they considered available options.
Moore v. British Columbia (Education), 2012 SCC 61 (CanLII)
Employers must accommodate an employee's legitimate child care obligations.
Canada (Attorney General) v. Johnstone, 2013 FC 113 affd 2014 FCA 110
It is not discriminatory to fire an employee who is too disabled to work.
Gahagan v. James Campbell Inc., 2014 HRTO 14 (CanLII)

Occupational Health and Safety

Case and Importance In this Blog
Under Quebec law, a refusal to perform unsafe work, is not seen as a refusal to fulfill the employment contract, it is the exercise of legislated protection.
Dionne v. Commission scolaire des Patriotes, 2014 SCC 33 (CanLII)

Bill 168

Case and Importance In this Blog
Employers cannot legally fire an employee for making a workplace harassment complaint.
Ljuboja v Aim Group Inc, 2013 CanLII 76529 (ON LRB)
OHSA provides no specific rights to a worker with respect to workplace harassment and there is no provision in the OHSA that says an employer has an obligation to keep the workplace harassment free.
Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB)

Limitation Periods

Limitation Periods for Wrongful Dismissal

Case and Importance In this Blog
The limitation period for an action for wrongful dismissal does not necessarily run from the date of actual dismissal. It is activated when the cause of action is discovered – that is, the date that the terminated employee knew or ought to have known that he was discharged without cause and without notice or pay in lieu of notice and that a proceeding would be an appropriate way to get redress.
Webster v. Almore Trading, 2010 ONSC 3854 (CanLII)
An employee who wishes to claim unpaid commissions has two years from the date upon which he discovers that he will not be paid his commissions to start a lawsuit.
Ali v. O-Two Medical Technologies Inc., 2013 ONCA 733 (CanLII).

Limitation Periods for Disability Claims

Case and Importance In this Blog
Group policies of insurance are not "business agreements" for the purposes of the Limitations Act, 2002. As a result the limitation period generally applicable to such claims is two years from the date the claim is "discovered."
Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922

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