“It's Too Late to Apologize” Court of Appeal Finds Refusal to Apologize For Inappropriate Conduct Just Cause for Termination of Employment

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.

The Value of Lighting Fires

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

"Close Only Counts in Horseshoes." ONSC finds Reasonableness of Plaintiff’s Position a Relevant Factor in Awarding Costs

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.

Hope for Ontario's Employer Bar: The ONSC's Decision in Rahman v. Cannon Design Architecture Inc.

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.

Ottawa Businesses and Organizations Legally Required to Establish COVID-19 Vaccination Policy

Is my business legally required to have a mandatory COVID-19 vaccination policy?

In Ontario, the answer unfortunately depends on where you are located. Let me explain.

Employees Can Sue for Constructive Dismissal Caused by Chronic Mental Stress: ON Div Ct

Can an employee sue for constructive dismissal if the cause of the employment relationship break down is that the employee was subjected to chronic workplace harassment resulting in injuries otherwise compensable under the WSIB regime?

In a well-reasoned, no-nonsense decision, Morningstar v. WSIAT, 2021 ONSC 5576 (CanLII), the Ontario Divisional Court (Sachs, Backhouse and Kurke JJ.) overturned two earlier decisions of Ontario’s Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”), about which I blogged in my post Employees Cannot Sue for Constructive Dismissal Caused by Chronic Mental Stress: WSIAT, and held that one can.

It's good to be home.

Hi.

On April 1, 2019, I published a post to this blog titled “Hi. I have some news.” In that post I announced that, “As of April 1, 2019, I am no longer practicing in private practice. I have joined Canopy Growth Corporation in the position of Director, Legal (Litigation and Employment).”

Given the date of April 1, many people assumed I was joking. Many assumed my post was an elaborate April Fools Day prank. Several commented there was “no way” I would ever leave private practice.

That announcement was not an April Fools Day prank. For the past nearly two and a half years I have been employed by one of the most dynamic and fast-moving corporations in Canada. It has been a whirlwind and I am grateful for the experience in ways best described in person.

But, those who believed there was no way I could leave private practice weren’t entirely wrong either.

And so it is with mixed emotion, at least one of which is excitement, that I am pleased to announce that effective Tuesday, September 7, 2021, I will be returning to private practice with Kelly Santini LLP in Ottawa.

My practice will continue to focus on employment law, including strategic advisor to employers, and litigation for all parties with an emphasis on wrongful dismissal, workplace harassment, and workplace accommodation issues. I am also expanding my offerings to include commercial litigation, workplace harassment investigations, and strategic employment law advice on mergers, acquisitions, and dispositions.

These past two and a half years have afforded me so many opportunities to see and experience things I never thought imaginable. I have been exposed to litigation and employment law issues literally the world over. So, while I am grateful to Canopy Growth for the opportunity, I look forward to sharing the knowledge obtained through those experiences with a larger client base.

It's good to be home.