Close Only Counts in Horseshoes and Hand Grenades: The Irrelevancy of “Near Cause” in Canada

A post by: Brent Craswell

Employers often believe that an employee’s conduct should play a role in its obligations to him or her upon termination. To the extent that those factors assist the employer in establishing just cause for termination, the employers would be correct. However, if the improper conduct does not meet the ever-elusive standard for just cause, what effect does it have on the reasonable notice period owed to the employee as common law damages for wrongful dismissal? In other words, can the employer “knock down” the reasonable notice period by arguing that it almost established cause?

In its brief decision in Dowling v Halifax (City), [1998] 1 SCR 22, the Supreme Court of Canada emphatically held that the doctrine of “near cause” has no place in Canadian employment law. In fact, the Court wrote that it would “not accept any argument relating to near cause.”

Employee on Disability Leave Deemed to Have Abandoned Employment After Failing to Respond to Employer

Image: istock/Imilian

“You have the right to remain silent.” Those seven words are a fundamental principle of the Canadian criminal justice system. But what about the intersection of disability leave and employment law? Does an employee have the right to remain silent when his or her employer asks for an update on his or her health or an estimate of when the employee may be able to return to work?

While a lot of workers may believe that the answer to those questions is “yes”, in the case of Betts v IBM Canada Ltd., 2015 ONSC 5298 (CanLII) the Ontario Superior Court of Justice held otherwise.

Writing on behalf of the court, the Honourable Justice Diamond held as follows, “Even an employee suffering from medical issues is not immune from being found to have abandoned his/her employment.”

Employers Need Not Accommodate Employees “Choice” to Breastfeed - PSLREB

Are work requirements that impact on an employee’s breastfeeding schedules discrimination and, if so, are they discrimination on the basis of sex or family status or both? And does the distinction, if any, matter? What is necessary for a grievor to establish a prima facie case of discrimination on the basis of breastfeeding? What duty, if any, does an employer have to accommodate an employee who is breastfeeding, and how far — and for how long — does that duty extend?

Those were the questions that Public Service Labour Relations and Employment Board member Augustus Richardson was asked to answer in the case of Flatt v Treasury Board (Department of Industry), 2014 PSLREB 2 (CanLII). Not easy questions to be sure.

Dead Employee Still Entitled to Severance: Judge

Image ©iStock.com/DrPAS

If an employee dies due to a terminal illness (e.g. cancer), is his estate entitled to severance pay?

In the case of Estate of Cristian Drimba v Dick Engineering Inc., 2015 ONSC 2843 (CanLII), the Honourable Justice Douglas K. Gray of the Ontario Superior Court of Justice held that it is.

Death may put to an end many things, but an employee’s entitlement to severance pay would appear to not be one of them.

Judge's Wrongful Dismissal Decision is Itself Wrongful

From time-to-time a decision will come along that will leave me not only confused, but frustrated. Wyllie v Larche, 2015 ONSC 4747 is one of those cases.

Yesterday, I wrote about the court’s decision not to award punitive damages in that case. With respect to that issue, the court decided that the employer’s refusal to pay the statutory minimum amount of severance to a dismissed employee was excused because the employer had offered the employee an extra $546.25 (gross of tax) to waive all of his rights. See: Failure to Pay Statutory Severance ‘Okay’ because Employer Offered to Do So.

In my earlier commentary I had written the following:

I have a number of issues with Justice Price’s decisions. Principally His Honour’s decision to award Mr. Wyllie no more than his five days of statutory severance and his decision to not award punitive damages.

I have already explained my concerns with respect to the punitive damages decision, this post examines the severance issue.

Failure to Pay Statutory Severance ‘Okay’ because Employer Offered to Do So

Does an employer’s offer of legally required severance pay, provided that the employee signs a full and final release, mitigate against an award of punitive damages if the employer later refuses to pay that legally required severance pay? Surprising as it may seem, in the case of Wyllie v Larche, 2015 ONSC 4747, the Honourable Justice David Price of the Ontario Superior Court of Justice said “yes, it does.”

Advertisement for “Caucasian” Nurse likely Discriminatory

While the CBC was running a feature segment as to whether racism remains an element of Canadian society, a Burlington, Ontario seniors home care company was posting an online advertisement for a “Caucasian RN or RPN.” In an online advertisement posted to Craigslist, shown below, Retire at Home services advertised that a client was "looking for a Caucasian RN or RPN to work shifts that are between eight and 12 hours in length."

The advertisement and subsequent stories touch off a debate as to whether the company had done anything legally wrong and if so what consequences it may face as a result.