As a matter of law, can the manner in which an employer dismisses an employee impact the enforceability of a contractual termination provision?
In Humphrey v. Mene, 2021 ONSC 2539 (CanLII), Justice Gina Papageorgiou, after an extensive and thorough review of applicable jurisprudence, held that, in some cases, it can.
If you can get thorough this post without hearing Ryan Tedder’s voice singing “It's too late to apologize,” well you’re stronger than I am. “I said it's too late to apologize, it's too late.” (For those who don’t get the lyrical reference, or those who just want to hear the song, here’s the link: Timbaland - Apologize ft. OneRepublic.)
In November of 2020, I wrote a post titled “Refusing to Apologize for Inappropriate Comments Not Cause for Dismissal”. In that post I reviewed the Ontario Superior Court of Justice’s decision in Hucsko v. A.O. Smith Enterprises, 2020 ONSC 1346 (CanLII), in which Justice G.E. Taylor held that an employer was not justified in summarily ending the employment relationship because the employee refused to apologize for inappropriate comments and it could not use the previous findings concerning inappropriate comments to later justify the termination.
The employer appealed.
For reasons reported as Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, the Court of Appeal found that there was cause to terminate the employee’s employment.
Too late.
In June of 2007, I walked into the law offices of what was then known as Beament Green with the intentions of keeping southern Ontario’s farmland in active production.
I did not become an environmental lawyer. My experience assisting those who grow… umm, let's say "plants" was not exactly what I had in mind when I went to law school.
Instead, what happened at Beament Green was I met a man by the name of John Read, who introduced me to the wonderful world of employment law. John lit a spark that grew into something much larger, to a point that employment law would dominate my interests and passions, let alone practice. John Read died last night. He would have laughed full-chested at that second paragraph.
The morning my mother died I awoke with the most surreal sense of calm. I was staying at a good friend’s house awaiting the inevitable. When I awoke, I did not yet know she was dead. Except, I did. You know?
What I realized that morning is that our loved ones never really leave us. They reflect themselves in their children, both natural and adoptive. My sister and I are much more of our parents than either of our teenaged selves should ever have allowed.
That thought brings me to two points. First, I have had the pleasure of working with and getting to know John’s son Dash. While obviously a different person, Dash shares John’s incredible wit, passion, and drive. He also has the same wry smile and hair. Those wishing to find John can find the best pieces of him there.
Second, I credit John for the passion for employment law that lives in me. John was a mentor. He was my mentor. He introduced me to new things, challenged me, and supported me. He allowed me to fall down when it wouldn’t hurt my own interest or those of a client. He ensured that I soared when it mattered. Mentoring is hard to do well. He was one of the best.
Lighting, and nurturing, fires in juniors is important. Teaching is incredibly important. Friendship is important.
I’m going to miss my friend.
~SPB
Litigation is an expensive business. It is not for the risk-averse or the faint of heart. There are winners and there are losers. And it is a well-established convention in our civil justice system that losers pay the winners a significant portion of their costs.
Wrongful dismissal cases are especially perilous; especially where the defendant employer alleges cause for dismissal.
So what happens when the employee loses? Is the reasonableness of the plaintiff’s position a relevant factor in awarding costs of the case?
In Goruk v. Greater Barrie Chamber of Commerce,2021 ONSC 6290 (CanLII) Justice Cary Boswell held that it is.
Are these words automatically fatal to a contractual termination provision post the Court of Appeal’s decision in Waksdale v. Swegon North America Inc.: “[The Employer] maintains the right to terminate your employment at any time and without notice or payment in lieu thereof, if you engage in conduct that constitutes just cause for summary dismissal.”
While many in Ontario’s employment law bar (especially those predominantly acting for plaintiffs) would respond with an emphatic “of course!” In Rahman v. Cannon Design Architecture Inc., 2021 ONSC 5961, Justice Sean F. Dunphy of the Ontario Superior Court held otherwise.
