A Place for Mediation Inc.

Before you litigate, always mediate.

December 2019

Employment Case Law

Finding Cause
In Geluch v. Rosedale Golf Association, 2004 CanLii 14566 (ON SC), the Court held hat the “employer must prove cause on the balance of probabilities, based on a finding of real incompetence or misconduct, rather then simple dissatisfaction.”

Standard of Cause
In the case of Lowery v. Calgary (City of), 2002 ABCA 237 (CanLII), it states that an employer must use multiple alleged incident to find cause, the court cites Atkinson v. Boyd, Phillips & Co. Ltd. 1979 CanLII 478 (BC CA), (1979), 9 B.C.L.R. 225, which gives guidelines with 4 points
  1. The employee was given express and clear warnings about his performance.
  2. The employee was given a reasonable opportunity to improve his performance after the warning was issued.
  3. Notwithstanding the foregoing, the employee failed to improve his performance.
  4. The cumulative failings “would prejudice the proper conduct of the employer’s business."

Lateness for Cause
In the case of S.S. v. Huang & Danczkay Property Management Inc., 1999 CanLII 14865 (ON SC), it was found that in cases where lateness was cause for dismissal, the employer must demonstrate that lateness was prejudicial to it’s operations, or that it had warned the employee sufficiently to allow the employee to correct the behaviours and failure to do so has been treated as a repudiation of the employment agreement.

Prior misconduct
In the case of S.S. v. Huang & Danczkay Property Management Inc., 1999 CanLII 14865 (ON SC), the court recognized that misconduct of an employee that was not met wit a dismissal cannot then rely on that misconduct for future allegations. This was supported by the Ontario Court of Appeal in Nossal v. Better Business Bureau of Metro Toronto Inc. 1985 CanLII 1980 (ON CA), (1985), 19 D.L.R. (4th) 547 (Ont. C.A.), in which states an employer may not discharge an employee on the basis of previous misconduct that which was not previously met with a dismissal.

Mental Illness & Cause In the case of Rivest v. Canfarge Ltd., 1977 666 (AB QB)., the plaintiff had suffered mental strain because of job duties and responsibilities. The plaintiff missed three consecutive workdays and as a result was terminated. The court held that plaintiff suffered from a real and substantive illness and as such the defendant could not dismiss the plaintiff without sufficient notice.
Source 1, Source 2

Poor Economic Conditions Not Just Cause
According to Morris v Sperry Inc. an employee returned to work after medical leave and found out her position had been filled, while the employer had not created a new position for the employee due to economic reasons. It was found that the employer did not have just cause for dismissal because of economic reasons.

Workplace Violence (Slap) not Just Cause
In the case of Shakur v. Mitchell Plastics, 2012 ONSC 1008 (CanLII), a Division of Ultra Manufacturing Ltd. it was found that Shakur, which had a clear disciplinary record, was not dismissed with just cause for his actions of slapping another co-worker during a verbal altercation. Ontario Superior Court Judge David Broad went states that Shakur actions however improper they may have been did not justify an outright dismissal. Shakur Award = four and a half months pay in lieu of notice.

Workplace Violence (Push) not Just Cause
In the case of
Gjema v. Mercury Specialty Products Inc., 2012 MBQB 83 (CanLII) it was found that Gjema, which was the manager, was dismissed without just cause for his actions of pushing a defiant and aggressive subordinate. It was found that a dismissal was overly excessive and disproportionate. Gjema Award = year’s severance pay.


Mitigating damages through second job
In the case of Watson v. Summar Foods Ltd., 2006 CanLII 38233 (ON SC) an employee had a full time and an additional part time job. After being terminated from her full time job it was found that the employee not working more hours at her part time job post termination was not adequate enough to conclude she failed to mitigate her damages.

Punitive Damages
According to Nelson v 977372 Ontario Inc, 2013 CanLII 41983 (ON SCSM) not issuing a Record of Employment (ROE) and refusing to pay statutory minimums is reason for punitive damages to be awarded.

Economic Cutback Termination/Damages
According to Collin v Kappele, Wrigh & Macleod Ltd., an employer was alleging an employees termination was because of conflict in personality and a lack of punctuality. Court found that the true reason for termination was because of economic cutback: plaintiff was then entitled to damages.

Disability Termination

In case Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799 (CanLII) at para. 56 the court states a decision to terminate an employee based in whole or in part on the fact that an employee has a disability is discriminatory contrary to the Code. If an employer regards disability as a factor justifying termination (or other negative treatment), the employee in question is not receiving “equal treatment...without discrimination”

Duty to investigate discrimination
In the case of Stillo v. Toronto Transit Commission, 2011 HRTO 2143 (CanLII), at para. 29 it states “ I fully accept that respondent has duty to investigate complaints of discrimination or harassment; that the duty to investigate is the means by which an employer ensures that it is achieving the Code mandated responsibility of operating a discrimination-free environment.”

Gender based termination
According to
Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 (CanLII), even when there are legitimate bases for terminating the complainant’s employment, if one of the considerations is related to a protected ground under the Code, her being gender, then the termination will be held to be a violation of the Code.

Resignation Requirements

The Ontario Court of Justice (General Division) in the case of Skidd v. Canada Post Corporation, 1993 notes that an effective resignation must be clear and unequivocal.

In the case of Beggs v. Westport Foods Ltd., 2011 BCCA 76 (CanLII) it is noted that resignation must meet the requirement of both subjective and objective tests. For example whether the employee intended to resign and whether employees actions supports that they resigned.

Employee statement not sufficient to conclude resignation “I'm out of here”
In the case of Balogun v. Deloitte & Touche, LLP, 2011 BCSC 1314 (CanLII) it was found that an employee’s comment of “I'm out of here” was not sufficient for an employer to presume the employee had resigned. Balogun Award = two month’s salary in lieu of reasonable notice of termination.

Employee statement not sufficient to conclude resignation “slap in the face”
In the case of Kieran v. Ingram Micro Inc., 2004 CanLII 4852 (ON CA) an employee (Kieran) commented on a rival getting promoted by saying, it would be a slap in the face, and would require an international transfer. The court Ontario Court of Appeal ruled that this comment was insufficient to be considered a resignation.

Reasonable Notice

In the case Bardal v. Globe & Mail Ltd., [1960], O.J. No. 149 (Ont. H.C.J.) it states, “there can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and availability of similar employment, having regard to the experience, training and qualifications of the servant.”

In the case of Margo and Sobeys Inc. it is argued whether or not 16 months notice was reasonable for a 56 year old, which Sobey’s had employed for 23 years as a Maintenance Clerk. In this case they use the below case law to argue it was reasonable notice.

In the case of Rubin v. Home Depot Canada Inc., 2012 ONSC 3053 (CanLII), the court held that 12 months was reasonable notice for a 63 year old employee with approximately 20 years of service working as a Competitive Shopper.

Dismissal without Notice

In Geluch v. Rosedale Golf Association, 2004 CanLii 14566 (ON SC) it says that “since dismissal without notice is such a severe punishment, it can only be justified only by misconduct of the most serious kind”

Defendant Special Advantage

The Court states in Ebert v Antoma, where the employer is seeking to acquire an advantage from their own contract when they effectively breached it, that the defendant cannot “both suck and whistle”. This means, the defendant cannot “fundamentally breach the agreement it drew up, and then claim a special advantage under it”.


The leading authority on condonation is the Court of Appeal decision in McInyre v. Hockin (1989), 16 OAR 498 (C.A.) where it was held that: “When an employer becomes aware of misconduct on the part of his servant, sufficient to justify dismissal, he may adopt either two courses. He may dismiss, or he may overlook the fault. But he cannot retain the servant in his employment, and afterwards at any distance of time turn him away... If he retains the servant in his employment for considerable time a!er discovering his fault, that is condonation, and he cannot afterwards dismiss for the fault without anything new”