Employment Law IS Real

The Court of Appeal for Ontario’s decision in Baker v. Van Dolder’s Home Team Inc., 2026 ONCA 568 makes me want to leave the practice of law. Not just employment law, but the entire profession.

While that opening is melodramatic, I have always had a penchant for theatrics. Moreover, the only way to properly describe my reaction to the Court’s decision is existential.

A little over six years ago I wrote a blog post, which I titled Employment Law Isn't Real. In that post, I suggested that if employment law was not real, then the Court of Appeal’s decision in Waksdale v. Swegon North America Inc., 2020 ONCA 391 (CanLII) is wrong.

The point of that post was to argue, of course, that Employment Law is real. By which I mean that it is a distinct body of law with its own jurisprudence and analytical framework. For the sake of completeness, and as I have confirmed many times, I agree with the Court’s decision and analytical approach in Waksdale.

The Court of Appeal’s recent decisions in Baker and Li v. Wayfair Canada ULC., released concurrently but not included in the citation, suggest otherwise. Those decisions seem to prove the argument that Employment Law is Not Real.

But it is. Employment Law is real.

Employment Law is not simply applied contracts. If I am wrong in that understanding, then perhaps I should not be in this profession. Perhaps I should tread the boards again.

Application Best Serves Proportionality, Efficiency, and Justice in Wrongful Dismissal Case: ONSC

Applications remain an appropriate vehicle, if not the preferred approach, for the resolution of wrongful dismissal cases. In an endorsement released May 12, 2026, the Honourable Justice Marc Garson of the ONSC refused a request to convert a wrongful dismissal application into an action.

In providing reasons for decision, Justice Garson observed, "Proceeding by application best reflects the principle of proportionality in light of the issues raised. It is also the most efficient, cost-effective and timely means of achieving a just result." Adding, "While many wrongful dismissal claims involving employment contracts proceed by way of an action, there is no requirement that this case do so."

Commentary

As some may know, I have long had a penchant for proceeding via Application in wrongful dismissal cases. Farah v. EODC Inc., 2017 ONSC 3948, referenced by Justice Garson in his reasons for decision, was I case I brought.

In 2023, I gave a presentation to the Thunder Bay Law Association titled, I Swear This Works: Expedient Advocacy in Employment Law Cases, in which I sang the virtues of Applications.

I maintain the position that most wrongful dismissal cases are appropriate for resolution via Application.

About Sean Bawden

Sean Bawden is Experience. At Work.

I am an experienced employment lawyer and wrongful dismissal lawyer practicing across Ontario and beyond with Kelly Santini LLP, which is based in Ottawa.

For two and a half years, I was in-house legal counsel providing employment law advice to one of Canada’s largest corporations and appeared in labour courts and tribunals literally the world over.

I have also been a part-time professor at Algonquin College and have taught Employment Law, Trial Advocacy for Paralegals, and Small Claims Court Practice. I am a past president (2024-2025) of the County of Carleton Law Association (“CCLA”), and have sat as a safe sport adjudicator.

I can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321 x233.

Subscribe to Labour Pains

* indicates required

Email Address *

--

As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Eyes Wide Shut – Admission of a Failure to Look for New Employment Insufficient to Prove a Failure to Mitigate

Is a dismissed employee's admission that he didn't even bother to look for new employment enough to prove that he failed to mitigate his damages? According to the Court of Appeal for Ontario, it is not.

A dismissed employee’s duty to mitigate his or her termination entitlements remains one of the most frustrating and irritating aspects of employment law. Employees loathe the idea that they must actively work against their own short-term financial interests. Employers find the legal test for proving an employee has failed to mitigate such damages nearly impossible.

In Williamson v. Brandt Tractor Inc., 2026 ONCA 272, the Court of Appeal for Ontario succinctly restated two fundamental components of the legal duty: those concerning the employer’s onus to prove a failure to mitigate and when and when and how to deduct earnings when the employee does.

Termination Without Cause “At Any Time” and “For Any Reason” Legally Acceptable? Maybe.

How does a court get around the pesky “any time,” “any reason” issue and find that a contractual termination provision containing such words is legally determinative of an employee’s entitlement? Simple. By failing to engage on the point.

In Li v. Wayfair Canada ULC., 2025 ONSC 2959, the Honourable Justice Grant Dow of the Ontario Superior Court sitting at Toronto bucked the current trend and found the following termination clause to be legally acceptable, “After your probationary period concludes, in the absence of Cause, the Company may terminate your employment at any time and for any reason by providing you with only the minimum statutory amount of written notice required by the ESA or by paying you the minimal amount of statutory termination pay in lieu of notice required by the ESA, or a combination of both, as well as paying statutory severance pay required by the ESA, providing benefits continuance for the requisite minimum statutory period under the ESA and all other outstanding entitlements, if any, owing under the ESA.”

Let’s get into it.

Canadian Human Rights Commission has Primary Jurisdiction for Federal Discrimination Complaints: FCA

When an unjust dismissal complaint under the Canada Labour Code alleges discrimination, does the Canada Industrial Relations Board (the “CIRB”) have jurisdiction to hear it, or must the employee proceed through the Canadian Human Rights Commission instead?

In Kaseke v. Toronto Dominion Bank, 2025 FCA 8, the Federal Court of Appeal affirmed an earlier decision of the CIRB, which held that if the facts giving rise to an unjust dismissal complaint could also ground a human rights complaint, paragraph 242(3.1)(b) of the Canada Labour Code bars the CIRB from hearing it, because the Canadian Human Rights Act provides another procedure for redress. The CIRB may only hear the matter if the CHRC first refers the complaint back.