Wrongful Dismissal

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-24
CLNP Page ID:	137
Page Categories:	[Employment Law]
Citation:	Wrongful Dismissal, CLNP 137, <>, retrieved on 2024-04-24
Editor:	Sharvey
Last Updated:	2022/08/19

Honda Canada Inc. v. Keays, 2008 SCC 39 (CanLII), (2008) 2 SCR 362

[50] An action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship in the absence of just cause. Thus, if an employer fails to provide reasonable notice of termination, the employee can bring an action for breach of the implied term (Wallace, at para. 115). The general rule, which stems from the British case of Addis v. Gramophone Co., [1909] A.C. 488 (H.L.), is that damages allocated in such actions are confined to the loss suffered as a result of the employer’s failure to give proper notice and that no damages are available to the employee for the actual loss of his or her job and/or pain and distress that may have been suffered as a consequence of being terminated. This Court affirmed this rule in Peso Silver Mines Ltd. (N.P.L.) v. Cropper, 1966 CanLII 75 (SCC), (1966) S.C.R. 673, at p. 684:

. . . the damages cannot be increased by reason of the circumstances of dismissal whether in respect of the [employee’s] wounded feelings or the prejudicial effect upon his reputation and chances of finding other employment.

[51] Later in Vorvis v. Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC), (1989) 1 S.C.R. 1085, McIntyre J. stated at p. 1103:

. . . I would conclude that while aggravated damages may be awarded in actions for breach of contract in appropriate cases, this is not a case where they should be given. The rule long established in the Addis and Peso Silver Mines cases has generally been applied to deny such damages, and the employer/employee relationship (in the absence of collective agreements which involve consideration of the modern labour law régime) has always been one where either party could terminate the contract of employment by due notice, and therefore the only damage which could arise would result from a failure to give such notice.

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[71] As earlier mentioned, the main allegation was that Honda discriminated by requiring Keays to bring in a doctor’s note to justify each absence when employees with “mainstream illnesses” did not have to do so. The trial judge also found that this requirement had the effect of lengthening absences, ignoring the evidence of Ms. Selby who testified that Honda did not require the employee to produce a doctor’s note as a precondition to returning to work. As discussed earlier, employees outside the disability program did not require notes for absences of less than five days but were subject to discipline for excessive absences (A.R., at pp. 282-83), whereas employees in the program were allowed regular absences without discipline beyond the usual attendance requirement under a system of supervision based on regular contacts with doctors. The object of the disability program is to maintain regular contact with the family doctor in order to support treatment. It allows for disability-related absences, a form of accommodation determined in consultation with doctors. The program requires that medical notes be provided to establish that absences are in fact related to the disability. There is no stereotyping or arbitrariness here (McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R. 161, 2007 SCC 4 (CanLII), at para. 49). In addition, I accept that the need to monitor the absences of employees who are regularly absent from work is a bona fide work requirement in light of the very nature of the employment contract and responsibility of the employer for the management of its workforce.

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[122] Mr. Keays had requested to be exempted from the requirement to provide a doctor’s note for each CFS-related absence. Honda refused to consider this request, despite the assertion by Mr. Keays’ attorney that Mr. Keays was concerned that the note requirement created a barrier to his speedy return to work. Regardless of whether or not the notes created a barrier, it is clear that Honda was skeptical of Mr. Keays’ condition because of the “cryptic” nature of his doctors’ notes and because his absences had become more frequent than originally predicted. Yet if variable self-reporting conditions are characteristic of Mr. Keays’ disability, it is arguable that Honda acted in a discriminatory manner in subjecting him to the kind of scrutiny he underwent and, in fact, denying him accommodation for his disability.

[123] While monitoring employee absences certainly remains a valid objective, this can be done in a variety of ways. Requiring a doctor’s note for each absence is only one alternative. Others include seeking semi-regular updates from an employee’s physician regarding the nature of the condition and the course of treatment, checking in with the employee directly, or requiring doctors’ notes only when the number of absences exceeds the expected number within a given time frame. Not all monitoring methods may be considered non-discriminatory in every context. As stated by the Ontario Network of Injured Workers’ Groups, another intervener in this appeal, “[i]ndividualized accommodation is at the heart of the duty to accommodate and is instrumental in creating a discrimination free workplace” (Factum, at para. 17). In my view, the employer must, in monitoring absences, remain mindful of all the circumstances, which include the nature of the employee’s condition. It should not be assumed that all monitoring methods are acceptable and non-discriminatory.

[124] For these reasons, I would allow the appeal in part by setting aside the award of punitive damages and the costs premium. The cross-appeal should be dismissed. Given the outcome and the circumstances of the case, I would award costs to the respondent.

Colistro v. Tbaytel, 2019 ONCA 197 (CanLII)

Analysis
[36] I am not persuaded that there is a basis for this court to interfere with the trial judge’s finding that the appellant was constructively dismissed or his award of Honda damages. Below, I address the appellant’s arguments, in turn.

(1) A single incident can ground a finding that continued employment was intolerable

[37] In addressing Tbaytel’s first argument, it is helpful to begin by briefly reviewing the Supreme Court’s summary of the guiding principles in Potter v. New Brunswick Legal Aid Services, 2015 SCC 10 (CanLII), [2015] 1 S.C.R. 500.

[38] Constructive dismissal arises when an employer’s conduct evinces an intention to no longer be bound by the employment contract. The courts have taken a flexible approach in determining whether an employer’s conduct evinced an intention to no longer be bound by the contract: Potter, at para. 32.

Granville Foger v. 1241676 Ontario Inc. o/a Humber Property Management, 2015 CanLII 39767 (ON LRB)

26. At common law, the courts recognized that an employee develops a degree of security in his or her employment tied to length of time employed, and that this limits the employer’s right to end the employment relationship at will. Absent culpable misconduct on the part of the employee, an employer could terminate the employment relationship only upon proper notice to the employee, or payment of wages in lieu thereof.

27. However, the jurisprudence which developed around this principle was hindered by underlying class consciousness then prevalent. In the case of salaried employees engaged in white collar, managerial or professional work, the calculation of damages owing for failure by the employer to give notice was generous — in more recent times, calculated at one month’s salary for each year worked — which could amount to significant monies owed. By way of contrast, in the case of wage-labourers paid at an hourly rate, the calculation of damages owing was truncated — even in recent times limited to the equivalent of one wage payment cycle, whether daily, weekly or bi-weekly — often a mere pittance.

28. Legislatures have responded to the inequities in the common law jurisprudence, particularly as it affects wage-labourers, by mandating notice periods or payment of wages in lieu thereof calculated upon years of service. Moreover, they have eased the harshness of the common law exclusion of notice in the case of culpable misconduct however slight, by limiting such disentitling misconduct to that which is “wilful” and not “trivial”. In our jurisdiction, the relevant provisions of the ESA and regulations thereunder read as follows.

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41. Although the HPM has established that Mr. Foger did engage in one act of misconduct as alleged — the unauthorized removal of its two photocopy machines, it has failed to establish that he engaged in the second act of misconduct alleged—subsequent confrontation with and accusations against a fellow employee regarding the first alleged act of misconduct. One cannot presume that HPM would have dismissed Mr. Foger from its employ based solely on the unauthorized removal of its property, especially in light of the factors I have outlined in paragraphs 31-34 above. Accordingly, I determine that Mr. Foger is not a prescribed employee within the meaning of ESA section 55 and Ontario Regulation 288/01, section 2(1).3.