We are already past the first half of 2023. Already there have been several interesting employment law cases. This blog will focus on those interesting cases. It will take years to determine how influential these cases will be. As I am not referring to any cases from the Supreme Court of Canada, any of these decisions could be overturned by a higher court. These cases are ordered by the release date and all but one of these cases have an earlier blog that analyses the decisions in more depth than I will do here.

Besse v Reach CPA Inc – Time theft can cost the employee

At the beginning of the year, Besse v Reach CPA Inc, (2023 BCCRT 27) dealt with the issue of time theft. In this decision, the tribunal found that Reach CPA Inc (Reach) had just cause to terminate Karlee Besse for engaging in time theft. What makes this decision interesting is that Reach was successful in its counterclaim against Besse forcing her to pay $2,756.89 for damages due to the time theft and tribunal fees.

As I said in my earlier blog on this decision, I think that Ontario based employers should not rely on this case when making employment decisions. This decision comes from a tribunal in British Columbia and is not binding on Ontario courts. Ontario also has a higher standard for just cause, as provincially regulated employers in Ontario must prove that the employee was “guilty of wilful misconduct, disobedience or wilful neglect of duty” (O. Reg. 288/01) to not pay the notice required under the Employment Standards Act (ESA). Further, if not for Besse suing Reach, I doubt the employer would have advanced a claim for time theft, as the lawyer fees would exceed the costs that they ended up receiving.

Valiquette v BPM Enterprises Ltd. (Tim Horton’s) – Accommodation is a team effort

Human Rights Tribunal of Ontario’s (HRTO) decision Valiquette v BPM Enterprises Ltd. (Tim Horton’s), (2023 HRTO 53) looks at the employer’s procedural duty to accommodate. In this decision, the employer decided to terminate Valiquette after she gave them a medical note stating some of her physical limitations. The HRTO explained that the employer failed to meet the procedural component of its duty to accommodate, as it had failed to meet with Valiquette to fully understand the extent of her disability and determine if there is a way that they could accommodate her disability. As such, the HRTO awarded Valiquette a total remedy of $35,290.40 plus interest.

As I discussed in the blog I wrote on this decision, the HRTO made it clear that employers must communicate with employees about accommodation instead of unilaterally imposing a decision. Failure to do so can be costly. This decision also shows the importance of talking to an employment lawyer before terminating an employee, such as the ones at Suzanne Desrosiers Professional Corporation, who could have warned the employer about their legal liabilities ahead of terminating Valiquette.

Park v Costco Wholesale Canada Ltd. – When can an employee be terminated for just cause

Recent Ontario Court of Appeal decisions have set a high bar for employers to terminate employees for just cause without needing to provide pay in lieu of notice as set out in the Employment Standards Act (ESA). To not pay ESA notice, employers must prove that the employee is “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer” (O. Reg. 288/01). This has led to confusion about what constitutes “wilful misconduct.” In Park v Costco Wholesale Canada Ltd. (2023 ONSC 1013), the Ontario Superior Court gave an answer. In that case, Park intentionally deleted a company website that he created twice; the second time was after the IT department was able to recover his first attempt at deleting it.

As I noted in my blog on this case, though this decision provides further clarity on when an employer can terminate for just cause, the standard to not provide ESA notice is still very high. Employers cannot use just cause dismissal to terminate an employee who committed a lighter infraction to get away with the cost of providing pay in lieu of notice.

Dornan v New Brunswick (Health) - The two million dollar, orally agreed to, fixed-term contract

Dornan v New Brunswick (Health) (2023 CanLII 10433) got a lot of attention earlier this year. In this case, Dornan agreed to work as the CEO of Horizon Health Network, which facilitates health care in New Brunswick. During the meetings ahead of starting the position, Dornan agreed to a fixed-term contract for five years with no discussions of a termination provision. However, after starting the position, his contract came with a termination provision. The adjudicator found that the termination provision was not enforceable, as the employer did not give Dornan additional consideration for the new provisions in the written contract, therefore the previous oral contract ruled the employment relationship. Since Dornan was terminated early in his fixed term, he was awarded around $2 million in damages.

Though I did not write a blog on this decision, we do have a blog on the dangers of fixed-term contracts. This decision is interesting because it shows that you can unintentionally create an oral contract when negotiating the terms of a contract. Though there is nothing new about an employer having to pay out the remainder of a fixed term contract, the amount awarded is certainly one of the highest ever awarded in Canada, which makes this case interesting.

Croke v VuPoint Systems Ltd. – Failure to get vaccinated can frustrate an employment contract

In 2023, courts are still resolving disputes tied to the COVID-19 pandemic. In Croke v VuPoint Systems Ltd. (2023 ONSC 1234), Croke worked for VuPoint and knew that 99% of their business came from Bell. To reduce the spread of COVID-19, Bell informed its installers that it will be implementing a mandatory COVID-19 vaccination policy. When VuPoint implemented a similar policy, Croke refused to get vaccinated, which led VuPoint to terminate him and claim that the contract was frustrated. The Court agreed with VuPoint that the contract was frustrated due to circumstances outside of their control and dismissed Croke’s claim of wrongful dismissal.

In the blog I wrote on this case, I avoided giving much of an opinion on this decision, as cases tied to COVID-19 are usually controversial. I have spoken to an employment lawyer who believes that contract frustration was not applied correctly in this decision. However, I believe that this decision is adding to a growing body of case law where decision-makers are finding that mandatory vaccination requirements imposed in response to third-party demands may cause employment contracts to be frustrated.

Celestini v Shoplogix Inc. – The changed substratum doctrine

In Celestini v Shoplogix Inc. (2023 ONCA 131), the Ontario Court of Appeal upheld the “changed substratum doctrine” to invalidate the termination provision in an employment contract. The “changed substratum doctrine” is a rule that a contract is invalid when it no longer reflects the work that the employee was doing upon termination. In this case, Celestini’s work was substantially changed due to a restructuring of the upper management team. Due to the “changed substratum doctrine,” the employer was not able to rely on an old employment contract to attempt to limit Celestini’s pay in lieu of notice entitlements.

This decision is interesting because it shows that employment contracts are not always indefinitely valid. In the blog I wrote on this decision, I noted that this decision should make it clear to employers that they need to update their employment contracts when the employee’s duties substantially change, such as with a promotion. The new employment contract would also need to provide additional notice for it to be valid.

Imperial Oil Limited v Haseeb – Discrimination based on citizenship during the hiring process

The most recently released decision that I have chosen to include in this list seems like the one most expected to be heard by the Supreme Court of Canada. In Imperial Oil Limited v Haseeb (2023 ONCA 364), Haseeb was denied a position at Imperial Oil that he was qualified for because he did not hold permanent residency, but rather had a Post-Graduate Work Permit (PGWP) that would allow him to work for up to three years after graduation, with the potential to apply to be a Canadian citizen after completing the first year of work. The Ontario Court of Appeal agreed with Haseeb that he was discriminated against based on citizenship. It noted that the protected ground of citizenship also protects non-citizens from discriminatory action. The court also dismissed the employer’s claim that their decision to not hire Haseeb was tied to non-discriminatory grounds as the discriminatory reason does not have to be the sole reason for the action to be discriminatory. As such, the Ontario Court of Appeal upheld the tribunal’s decision to award Haseeb damages of $130,000.

As I alluded to here and noted in my blog on this decision, there is speculation that this decision might head to the Supreme Court of Canada. However, employers should not rely on speculation. I find that the Ontario Court of Appeal’s decision is well reasoned and could be upheld by the Supreme Court. With this decision in mind, employers should ensure that they do not have discriminatory practices within their hiring process. Doing so can lead to significant damages.

General takeaways from these cases

These interesting cases do not seem to differ from the general course where employment law precedents have been heading in the past couple of years. Generally, these cases are interesting because they give further insight into how to interpret the law. However, it will likely take years before we can assess how impactful these cases truly are. Further, there are other interesting cases, that I left out of this list, that might be impactful in the future.

How Suzanne Desrosiers Professional Corporation can help

At Suzanne Desrosiers Professional Corporation our team keeps up to date with employment law matters and developments. Knowing the current law is key to finding the best solution to our client’s employment law issues. In most cases, our knowledge of employment law can help settle a dispute before a case is put in front of a judge. To contact one of our knowledgeable employment lawyers please call us at 705-268-6492 or email us at info@sdlawtimmins.com.