Time for New Employment Contracts

The rules of the game have changed. Due to a significant decision by the Ontario Court of Appeal, many existing termination clauses in employment contracts may not be enforceable any longer. This decision could have sweeping implications for both employers and employees.

Waksdale v Swegon North America Inc.

In this case, an employee sued his employer for wrongful dismissal upon being terminated “without cause” after only 9 months of employment. The employment contract between the employer and employee had two termination provisions. One provided for a “without cause” termination, and the other provided for a “for cause” termination.  The parties agreed that the “for cause” termination clause was unenforceable. The issue in this case was whether the “for cause” termination clause being unenforceable rendered the “without cause” termination clause unenforceable, too.

The Court of Appeal held that both clauses are unenforceable because termination clauses must be read as a whole and not considered on a piecemeal basis.  Further, it is irrelevant where the termination clauses are found in the agreement, or whether the “without cause” and “for cause” termination clauses are linked to each other. In reaching this decision, the Court of Appeal refused to given any effect to the severability clause as severability clauses cannot save clauses which are void by statute.

Why is this important?

Until this case, the understanding was “without cause” and “for cause” termination clauses were analyzed independently from one another. This meant just because the “for cause” termination clause was unenforceable did not change an employees’ entitlement upon termination as the “without cause” clause prevailed (so long as it was in compliance with the ESA). This case says the exact opposite.

The reason why this is such a sweeping case is because most “for cause” termination provisions are unenforceable. Many employers – and even lawyers – are unaware there are actually two standards to establish a just cause termination in Ontario: the common law standard, and the ESA standard. The ESA standard requires employers to prove “willful misconduct” whereas the common law standard only requires an employee’s misconduct to produce a “total breakdown in the employment relationship”.

It is entirely possible employee misconduct could constitute a total breakdown of the employment relationship yet not be done by the employee willfully. This means an employee’s misconduct could satisfy the common law standard but not the ESA standard.

Unless your employment contract explicitly carves out a distinction between termination for cause and termination for “willful misconduct”, the “for cause” termination clause may be unenforceable and, now due to this new case, all termination clauses may be rendered unenforceable as well.

Recommended Action

In light of this development, I strongly encourage employers to seek legal advice concerning the enforceability of their existing employment contracts. Not doing so risks all termination provisions in the employment contract being unenforceable. This could result in having to pay common law reasonable notice despite the parties’ intentions to only pay/receive the minimum entitlements pursuant to the ESA upon termination. Updating employment contracts will come at a cost but the cost of doing so will pale in comparison to the unavoidable costs associated with being required to payout larger notice periods and/or the legal fees associated with fighting a wrongful dismissal lawsuit on the basis of unenforceable termination provisions.

On the employee side, all terminated employees should consult with a lawyer for advice about their rights and entitlements upon termination. What may seem like a clear-cut, plainly-worded termination clause may not be enforceable and, in turn, employees may be entitled to much more notice upon termination than expected.

Common law reasonable notice can be wide ranging depending on various factors unique to the employee. It is oftentimes calculated in months and even years. In comparison, the ESA minimum entitlements are calculated in weeks up a relatively low maximum. Accordingly, this decision will have sweeping implications for both employers and employees moving forward.

COVID-19: Is Your Workplace Ready to Return to Work?

The province has recently changed the workplace safety guidelines to ensure that workers and the public are protected amongst the COVID-19 pandemic. These guidelines are to ensure that everyone is equipped for when the province decides to slowly re-open. The guidelines that were released provides direction to those working in specific industries such as manufacturing, food manufacturing and processing, restaurant and food service, and the agricultural sector.  Particularly those that are essential workers.

The new guidelines for these sectors include instructions on:

  • Physical distancing: eliminating pay at door option, team meeting outdoors, staggering shift times, using ground markings and barriers to manage traffic flow
  • Changes to the work place: installing plexi glass barriers, proper ventilation and air condition to increase air flow and using boot sanitizing trays
  • Promoting cleanliness: providing proper sanitization, personal protective equipment and enforcing hand washing before and after breaks

Further to this, the province indicated that there will be 58 new inspectors. These new inspectors will join the hundreds that already exist that are providing essential workplaces with COVID safety guidelines to ensure a safe workplace. These inspectors will be able to make sure that workplaces are following the mandated safety protocol.

This workplace safety north link is a useful resource which consolidates guidelines from various health and safety associations for workplaces during the COVID-19 pandemic.


Covid-19: Ontario State of Emergency and the Impact on your Business

As the Covid-19 pandemic drags on many business owners are doing their best to work through the provincial state of emergency but fear they could face severe penalties from the government or be liable to employees who feel they are put at risk.  To help your business navigate through these uncertain times, this article will provide a brief overview of what “essential” and “non-essential” businesses are, review a non-exhaustive list of liability concerns, and provide a checklist of best practices and recommendations. 


On April 3, 2020, the Ontario government issued an order reducing the list of businesses classified as “essential” down to 44 categories. The province requires non-essential “workplaces” to close meaning only physical premises must close and not actual “businesses”. The most recent list of essential workplaces is available at https://www.ontario.ca/page/list-essential-workplaces.

The Ontario government has been clear that non-essential businesses may continue to operate and online commerce and work-from-home arrangements are permitted and in fact encouraged. Further, non-essential businesses are allowed to temporarily access their premises for specific purposes such as: performing work at the place of business in order to comply with any applicable law; allowing for inspections, maintenance, and repairs to be carried out at the place of business; allowing for security services to be provided at the place of business; attending at the place of business temporarily to deal with other critical matters related to the closure of the place of business if the critical matter cannot be attended to remotely or to access materials, goods, or supplies that may be necessary for the business to be operated remotely.

Conversely, just because a business is deemed “essential” does not mean it is free and clear from legal obligations to provide a safe workplace under Occupational Health & Safety legislation. As expanded on below, employers must generally identify the risk of exposure, assess the risk of exposure, and take every precaution reasonable in the circumstances to protect all stakeholders of the business.


In the event your business is deemed an essential service you likely still have many concerns. What if it is impossible for your workers to socially distance on a jobsite? What if one of your workers contracts the coronavirus even though you abided by all safety precautions?  What if your workers do not feel comfortable returning to work but you are contractually obligated to complete a project?  Can your workers successfully file a WSIB claim if they contract the coronavirus?

These questions are just a few of the many we are seeing on a daily basis from employers.  Every situation is going to be fact based and needs to be analyzed on a case by case basis, but here are some key items all employers should keep in mind:


Ontario has the stiffest penalties for organizations who fail to comply with emergency orders. For corporations, non-compliance carries a maximum fine of $10 million. In the case of a director or officer of a corporation, non-compliance carries a maximum fine of $500,000.00 and a term of imprisonment of not more than 1 year.  The intention of these severe fines was presumably to deter price gougers, but the possibility exists for the government to fine or charge small business owners who are simply trying to keep their company from going under.  As a result, it is imperative that you ensure your business is deemed essential if your place of business is open or your workers are attending job sites. 


Businesses always have a statutory duty to take reasonable steps to protect their workers. COVID-19 risks may lead to employee claims if employees who are continuing to work do not consider their workplace safe. Social distancing and sterilization measures and practices recommended by public health officials should be rigidly maintained. Businesses should have a written COVID-19 policy regarding the measures that the business has adopted to prevent the spread of COVID-19 and directives regarding employees who are symptomatic or quarantined. This policy should be readily visible to all employees and even customers.


Workers are entitled to benefits for COVID-19 arising in the course of the worker’s employment. Claims will be adjudicated on a case-by-case basis; however, symptom-free workers are not provided with coverage even if the worker is quarantined or sent home for precautionary reasons.

The key factor in determining whether a worker is entitled to benefits is whether the worker’s employment duties were a significant contributing factor in the worker contracting COVID-19. Information about the work environment, work processes, job tasks, use or non-use of personal prospective equipment are all significant considerations.


Businesses who are deemed essential and continuing to operate physically should implement the following measures:

  • Travel Restrictions: employers are entitled to implement travel restrictions particularly when such travel is deemed as non-essential. While employers cannot ban personal travel, they can require employees to disclose personal travel information
  •  Self-Reporting Policies: businesses should create a system for employees to report their COVID-19 status aligned with public health recommendations
  • Social Distancing Practices: businesses should consider reconfiguring the workplace to ensure an increased physical distance aligned with public health official recommendations
  • Workplace Sanitization: businesses should be rigidly applying its cleaning procedures to ensure regular disinfection of the workplace generally
  • Personal Protective Equipment: some essential businesses are unable to restrict close contact with other stakeholders of the business and should make mandatory the use of certain personal protective equipment

This article is only a brief overview of the most recent emergency provincial government order and it is imperative for businesses to continuously monitor updates from the provincial and federal government and seek legal counsel where appropriate during this pandemic.  For assistance in preparing a Covid-19 workplace policy, determining what your business can and cannot do during the emergency order, or for any other information please contact Ken Ritson or Nathan Wainwright, or for other legal questions visit www.cheadles.com

The Fixed-Term Contract: Employers Beware

The Ontario Court of Appeal has given employers yet another good reason to be wary about hiring employees on fixed-term contracts.  In Howard v. Benson Group Inc. (2016) ONCA 256, a unanimous Court awarded a terminated employee 37 months’ pay, equivalent to $194,284.93, upon termination of his employment agreement after just 23 months of work.  The employer had not alleged that he was terminated for just cause, and instead opted to exercise its (purported) termination rights under a clause in the employment agreement.

When the plaintiff brought a motion for summary judgment for an alleged breach of the employment contract, Justice Mackenzie of the Ontario Superior Court found the termination clause to be void as a result of its ambiguity, and excised it from the agreement.  Instead, Justice Mackenzie ordered a mini-trial on the appropriate period of notice based on the common law Bardal factors, and on the issue of whether the plaintiff mitigated his losses sufficiently by trying to find other work.  The Plaintiff appealed.


John Howard was 57 years old when he began his employment with Benson Group Inc. in September of 2012 in the role of Truck Shop Manager on a five year fixed-term contract.  In May of 2013, Mr. Howard was promoted to the position of Sales Development Manager, with a base salary of $60,000.00 as well as participation in a bonus incentive program.  The initial contract from September 2012 remained in force, with the exception of additional salary and benefits commensurate with the promotion.

The employment relationship continued until July 28, 2014 when Benson Group exercised its contractual right to terminate the employment agreement, and pay its notice and severance obligations in accordance with the Employment Standards Act.  Subsequently, Mr. Howard sued on the basis that the clause, as follows, was too ambiguous to be enforced:

“8.1.      Employment may be terminated at any time by the Employer [the defendant] and any amounts paid to the Employee [the plaintiff] shall be in accordance with the Employment Standards Act of Ontario. [sic]”

When the trial judge found that this clause was unenforceable, and directed a mini-trial on the amount of common-law damages payable to the plaintiff, the plaintiff appealed this decision.  The plaintiff maintained the position that this was purely a breach of contract issue, and that he was entitled to the full value of the contract as it would be at the expiry of its five year term.

The Issue

Where an employee is employed on a fixed-term contract, and there is no clause (or an invalid clause) dealing with early termination of employment, is that employee entitled to the value of the balance of the employment agreement?

The Result

When drafting early termination clauses, an employer is required to achieve a high level of certainty; a principle stated in Ceccol v. Ontario Gymnastic Corporation, 2001 CanLII 8589 (ON CA).  Where the employer does not achieve such certainty, the ambiguity will be resolved against the employer and in favour of the employee.  This follows the long-standing principle of contra proferentum, in which ambiguities in a contract are construed against the person who drafted it, which is usually the employer.

In this case, the phrase “any amounts paid” was particularly troubling for the trial Judge, as questions arose regarding the specific “amounts” being referred to, and when exactly they were or would be “paid”.  Primarily because of the inability to discern the meaning of this phrase, this part of the agreement was found to be unenforceable, and the Court exercised its jurisdiction to remove that clause from the agreement.  Instead, the trial judge would have applied the Bardal factors to determine an appropriate notice period.  The Bardal factors are a consideration of the employee’s age, length of service, expertise, and availability of alternate similar employment to determine an appropriate notice period.  On these facts, 6 months’ pay would likely be considered a generous notice period under this common law principle; not 37 months.

Interestingly, and noted in the written judgment of Justice Miller, counsel for the appellant did not appeal the finding that the clause dealing with termination without cause was invalid.  Accordingly, no analysis of the validity of that clause was undertaken by the Court of Appeal.

The Court clearly states that there is a rebuttable presumption that a common-law notice period will apply in the absence of a notice period specified in the employment contract.  This presumption can only be rebutted where the employment agreement clearly specifies some other period of notice, whether expressly or impliedly.  Where no such right to termination exists, an employee is entitled, on early termination without cause, to the balance of the amount of the employment agreement.  In this case, the Court of Appeal made an outright award of the remaining amount payable to the plaintiff under the contract, and further stated there was no requirement for the plaintiff to mitigate his damages.

Finding Fairness

This result appears grossly inequitable, given the employer likely intended to pay approximately $2000.00 on early termination and ended up facing a judgment of over $200,000.00, after factoring in costs on appeal.  Aside from this point, the Court may have erred in finding that there was no specified period of notice.  There was indeed a specified period of notice, agreed to by both parties, that simply could not have been ascertained and was accordingly excised from the agreement.  While it may be correct to disregard this provision, it is still useful in attempting to determine the intention of the parties.  The error, if any, may be concluding the presumptive application of a reasonable period of notice under the common law had been rebutted.

Based on these reasons, the result would likely be the same if there was a 10, 20 or 30 year contract.  However, if the employer hired the employee for an indefinite term than the employer could exercise its right to terminate without cause on reasonable notice, which would be significantly less expensive.  The other lesson for employers is that clear and concise drafting in employment agreements can have huge cost-saving consequences, and can often avoid litigation all together.

Ontario Employment Law – Obligation to Accomodate

Mary Pilon worked for the City of Cornwall for 23 years.  In her final years with the City, she was a customer service representative in the Finance Department.  She left her job in September 2005 under the advice of her family physician. Pilon suffered from colitis, a condition where the colon becomes inflamed, causing among other things, severe abdominal pains and a constant urge to use the washroom. Her doctor noted as part of her claim for Employment Insurance benefits, “the harassing and unprofeossional treatment she received [at work] caused her illness.”

As part of her disability, the applicant, Pilon, required unrestricted access to the washroom during work hours. The applicant’s need for an accommodation around her use of the washroom unfortunately became an element of tension in the workplace. The applicant claims she was harassed by co-workers beginning in 2002 in the form of heightened scrutiny and complaints to management about her use of the washroom outside of scheduled break times.

This issue was a recurring one. These complaints were overtly expressed by one of the applicant’s co-workers but there were also subtle suggestions by others which took the form of complaints that the applicant was not at her desk, or that she disappeared during the work day or that she took too long breaks. The workplace became increasingly dysfunctional and eventually led to an “informal” investigation by the employer.

The Investigation

The investigation was conducted by a Labour Relations Coordinator in Human Resources. Six individuals from the workplace were interviewed, as well as the applicant. The interviews were taped, however, the City refused to provide a copy of the tape to the applicant when asked. The City stated at the time that they would have to consult counsel. This issue was never resolved. When the question of the tapes arose during the proceedings in front of the Human Rights Tribunal, the respondents stated that the tapes had been lost.

The result of the investigation was a report. The report concluded: “The [investigation’s] findings do not clearly define a harassment issue, however several incidents, if not dealt with immediately, may result in a poisoned atmosphere being created which could be considered harassment under the … Human Rights Code.” The City did not implement any of the report’s recommendations, nor was a copy of the report given to the applicant.

After the investigation, co-workers continued to complain about the applicant’s performance, specifically in relation to her excessive absences from her desk. In September 2005, the applicant’s doctor informed the City that “emotional distress due to psychologically unhealthy work environment and harassment” was exacerbating her medical condition, and subsequently recommended she leave her placement. On two more occasions, the applicant demanded the City investigate her allegations of harassment and failure to accommodate, but the city declined, saying those allegations had already been proved groundless.

The applicant also filed grievances with her union. The union withdrew the grievances after it conducted its own investigation of the complaints.  According to the Tribunal, the union’s investigation was not as thorough as the City’s.  Ultimately, the union took the view that the employer’s request that the applicant restrict her use of the washroom to her breaks was silly but was not harassment.  The adjudicator in the matter stated bluntly that the union’s position was wrong and completely missed the point.

Relying on the results of the union’s investigation, the City demanded that the applicant return to work as her absence was not for medical reasons.  The applicant refused, and the City subsequently terminated her employment.  The applicant then brought a complaint before the Human Rights Tribunal of Ontario, claiming the City did not accommodate her disability.

Human Rights Tribunal of Ontario’s Decision

The adjudicator concluded the City of Cornwall, its Director of Finance, Manager of Human Resources, and the applicant’s supervisor all violated procedural obligations to accommodate the applicant on several occasions. First, there was the City and Manager of Human Resources failure to properly investigate her initial complaint in May of 2004, as well as subsequent requests in October and December 2005. Further, the adjudicator noted that when provided with evidence that the applicant was ill due to the unresolved workplace issues, the Manager of Human Resources failed to make the proper enquiries. Finally, the adjudicator held that the City failed in its procedural obligations in the manner in which the applicant’s employment was terminated.

The adjudicator also found that the City and Director of Finance failed in their substantive obligation to accommodate in two separate matters. The first matter relates to the letter requesting the issue be resolved sent in May 2004, and the subsequent response trivializing the complaint. The second matter relates to the termination of her employment based on the results of a union investigation that the adjudicator calls “not particularly insightful”, as opposed to strong medical evidence that received virtually no inquiry. The adjudicator colourfully noted: “To the extent that the respondent employer relied on the union’s conclusions to justify taking steps to terminate the applicant’s employment, it did so at its peril.”

Finally, the adjudicator also found that the Director of Finance and the applicant’s supervisor “condoned harassment” of the applicant by failing to insulate her from the complaints of other employees that were related to her use of the washroom at times other than her formal break times.


Under the Ontario Human Rights Code, a person whose rights have been infringed is entitled to monetary compensation for actual losses arising out of the infringement. The purpose of this is to restore the person to the position they would have been in had the discrimination not occurred.
In this matter, the applicant sought a broad range of remedies from the Human Rights Tribunal. Ultimately, she was awarded $20,000 in damages for injury to her feelings, dignity, and self respect, as well as $3,000 for her medical costs. Additionally, the City of Cornwall was told to pay the applicant almost three years, less any other business or employment income she earned in the meantime.

Not surprisingly, the adjudicator ordered the Director of Finance, Manager of Human Resources, and supervisor of the applicant to complete the Ontario Human Rights Commission’s online training module on human rights, and provide a copy of the certificate of completion to the applicant.


The decision of the Human Rights Tribunal in this matter highlights two separate procedural obligations for municipal employers: the obligation to accommodate by being procedurally fair to the person requesting accommodation, and the obligation to investigate and provide details of the investigation. Based on the outcome of this case, the Tribunal has made it clear that municipal employers must be proactive in addressing complaints. If employee complaints are not taken seriously and the procedural duty to accommodate is not met, then employers could potentially be forced to pay out hundreds of thousands of dollars.

I) The obligation to accommodate by procedural fairness

One of the precedents referenced by the adjudicator was the Supreme Court of Canada’s decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3.  In delivering the judgment of the Court, Justice McLachlin (as she was then) noted that the duty to accommodate has both a substantive and a procedural component, and that to meet the procedural part of the duty to accommodate, an employer must take adequate steps to explore what accommodation is needed, and to assess accommodation options.

In the current matter, the Human Rights Tribunal took the duty to accommodate one step further, establishing that an employer is required to accommodate to the point of undue hardship, and that the person with a duty to accommodate must make a real and bona fide effort to accommodate Code-related needs. However, the burden doesn’t completely fall upon the employer’s shoulders. The person requiring accommodation must also cooperate in the attempt to find suitable accommodation.  This can be done by making their needs known and providing all required information to the employer.

Whether an employer is being procedurally fair to the person requesting the accommodation depends on the circumstances. The Human Rights Tribunal did not go into much detail about what, specifically, constitutes procedural fairness in accommodation in these circumstances. One thing the Tribunal did allude to was that the applicant deserved a completed and appropriate response to her request for accommodation.  The fact that she didn’t receive one suggests that formally responding to a complaint is the first and most important step in the duty to procedurally accommodate. The Supreme Court of Canada has also offered some guidance, approving the following analysis from Shelagh Day and Gwen Brodsky [“The Duty to Accommodate:  Who Will Benefit?” (1996), 75 Can. Bar Rev. 433], which gives some guidance:

Accommodation seems to mean that we do not change procedures or services, we simply “accommodate” those who do not quite fit.  We make some concessions to those who are “different”, rather than abandoning the idea of “normal” and working for genuine inclusiveness…In short, accommodation is assimilationist.  Its goal is to try to make “different” people fit into existing systems.

Based on the above principles, a municipal employer does not have to change its entire organizational structure in order to accommodate. All that is needed is a few simple concessions.  In the matter involving the City of Cornwall, the applicant did make her condition known to her supervisors and those above her.  With doing as little as granting extra washroom breaks and informing the applicant’s coworkers of the reasons for the accommodation (at the consent of the applicant), the situation could have been avoided. The fact that at one point, the Director of Finance wrote a letter in response to the applicant’s complaint saying “The City has never refused your requests for washroom breaks,” indicates that the City of Cornwall is either ignoring the complaint or simply does not understand what it means to accommodate. Granting washroom breaks is not what’s at issue, rather, it’s the need to accommodate the disability and to take the necessary steps to create an understanding amongst coworkers.

II) The Obligation to Investigate

In terms of the obligation to investigate and to provide details of the investigation, the Human Rights Tribunal noted that where an employee has made a formal request for accommodation to an employer and there has been an investigation leading to a report, it is appropriate and required under the Code’s duty to accommodate to share the results of their investigation with the applicant. In this case, the City of Cornwall shelved its report and did not share any of its details with the applicant.

It was significant issue for the applicant that she was never provided a copy of the Report and heard nothing about the results of the investigation.  She testified that had she seen the Report at the time, it might have given her some comfort that her concerns were being taken seriously at the very least. The applicant also took the position that the failure to provide her the Report or implement any of its recommendations was a reprisal, although the adjudicator did not agree. Nonetheless, a consequence of not ever being provided with the Report or any follow up on the investigation, the applicant stated that she didn’t know if her request for appropriate accommodation had been acknowledged by the respondents.

It’s worth noting that the Report came from an investigation that was made in accordance with the City of Cornwall’s Harassment in the Workplace policy.  Most municipal employers will likely have a similar policy that contains procedural guidelines for filing a complaint, the investigation process, and what information must be provided.

One of the issues involving the Report was whether it was formal or informal. The City of Cornwall maintained the Report was informal, but this assertion was rejected. This distinguishing feature comes down to whether the investigation is in direct response to the complaint. If it is, then it will likely be characterized as formal, meaning its results must be shared with the complainant.

Interestingly, the City maintained that because there was no specific complaint, it was not required to conduct a formal review pursuant to its policy.  However, City officials called upon to testify could not point to any policy document which drew the distinction between a formal versus informal investigation. Further, the Report itself refers to a complaint being made on several occasions. The adjudicator called the position of the City “difficult to understand”. In the end, it was held that the applicant would have no way of knowing that the investigation she participated in was not in response to her complaint and request for accommodation and would have reasonably expected a response to her concerns.

Ultimately, it can be inferred from this decision that where an employee makes a complaint about workplace harassment, a municipal employer should conduct a formal investigation, and the substance of the findings must be shared with the complainant.

The following is a list of the procedural steps that should be taken:

1) Formally acknowledge the complaint in writing;
2) Investigate the matter;
3) Consider all relevant information;
4) Compile a report;
5) Determine what, if any, accommodations must be met;
6) Share the findings of the report with the complainant;
7) Make a real and bona fide effort to accommodate to the point of undue hardship.


Labour Law & Assistive Devices

Labour Law & Disability – Coverage of Personal Bodily Assistive Devices

In order to accommodate an employee with a disability, employers often have to adapt various aspects of their work environment to suit the employee’s needs (Ontario Human Rights Code, RSO 1990, c. H.19, s 5, 11, 17 [“The Code”]). However, the results from an arbitration done in 2011 investigated how far an employer’s responsibility extends, and where the line is drawn between accommodating accessibility and relying on the employee’s personal responsibility.

In Thunder Bay Catholic District School Board [“The Board”] and Ontario English Catholic Teachers’ Association [“The Association”], 2011 CanLII 38669 (ONLA) the arbitration revolved around whether a personal bodily assistive device, in this case a hearing aid, was a necessary requirement for an employer to provide for their employee. Traditionally employers would only accommodate employees by way of making changes to the workplace or methods of performing work, however this case considers whether providing personal bodily assistive devices would be necessary for the employer to provide for use in and outside of the workplace.


The case revolves around Ms. A, a secondary school teacher with a degenerating inner ear disorder. Ms. A’s ailment causes her hearing functions to deteriorate in addition to causing periodical vertigo.

The Board had gone to great lengths to accommodate other aspects of Ms. A’s disability. Ms. A was provided with a soundproof office to block out ambient noises and assigned to teach students one-on- one instead of in big groups. As well, Ms. A was provided a portable microphone system to supplement her hearing, a special telephone which was customized for those with hearing impairment, and she was assigned to a school near to her house in order to prevent vertigo over long drives.

The personal bodily assistive device that Ms. A is claiming compensation for is a set of digital hearing aids. Ms. A claims that the digital hearing aids are necessary for her to properly do her job. She claims that without the digital hearing aids she cannot complete her supervisory responsibilities, hear announcements, meet with parents, and deliver the required curriculum to her students.


The main issue in this arbitration is whether compensating Ms. A for the digital hearing devices is necessary for The Board to fulfill their duty to accommodate her under their collective agreement and to satisfy The Code.

The Board is not disputing any of the facts above, however their main concern is that once an allowance is made for one personal bodily assistive device (the digital hearing aids), there could be a strong argument for them to supply more. This could open the floodgates to possibly include devices such as eyeglasses and prosthetics. So far, The Board has refused to cover any portion of the cost of the digital hearing aids, and the two parties have sought out to resolve the issue through arbitration.


Gordon F. Luborsky, the arbitrator, found that The Board was interpreting the governing law too narrowly, and that it was found that The Board must partially cover Ms. A’s hearing device. The devices were found to be:

“Absolutely necessary in concert with the other accommodative measures put in place by the Board for Ms. A to fulfill her fundamental teaching duties or requirements in compliance with her statutory obligations and contractual expectations.”

In terms of the results of the arbitration, Mr. Luborsky ultimately left it up to the two parties to decide on a final outcome and reach a “reasonable compromise”, however he does make a suggestion. After a long calculation it was concluded that Ms. A spends about 17.5% of all the hours in a calendar year at work, therefore the arbitrator suggests that this is an appropriate amount for The Board to cover (about $400 per hearing aid).

To justify this decision Mr. Luborsky points out that as technology allows for more devices to interact with the human body the “’bright line’ between the world of the employer and that of the employee in the search for appropriate accommodation has become blurred, which is a trend that is likely to continue into the future.” [para 59] Furthermore, Mr. Luborsky looks to Ontario Nurses’ Association and Orillia Soldiers Memorial Hospital and Sault Ste. Marie General Hospital, (1999) CA C28113 at para 55, which states:

the employer may provide devices and instruments that would allow the disabled employees to perform close to the same level as the able-bodied employees. The duty is on the employer to take all steps short of undue hardship to accommodate the needs of the person discriminated against so that they can compete equally with the other employees. It is by attempting to accommodate their actual characteristics so as to bring them within the workplace environment that the employer complies with the Code. [Emphasis added]


The important aspects of this case, besides the interpretation of The Code and the collective agreement between the Board and The Association, are the implications involved with extending workplace accommodation to include personal bodily assistive devices. Through relevant case law and statute a compromise was found that the Board was only liable for the portion of reimbursement that pertained to the use of the assistive devices during work hours. It is important for businesses and employers to be aware of these evolutions of the law in order to comply with the Code and provide the best possible assistance to employees.

Bullying in the Workplace: an Employer’s Obligations

Bullying isn’t just a schoolyard thing. It also affects working adults, as well as the overall atmosphere of the workplace.  In 2009, the Ontario government introduced Bill 168, which amended the Occupational Health and Safety Act with respect to violence and harassment in the workplace. The Bill places positive obligations on employers to keep their workplaces free from bullying.

Since the introduction of Bill 168, courts and labour arbitrators have made it clear that these obligations will be strictly enforced.  This article will consider how to identify workplace bullying, briefly examine Bill 168, then look at several legal decisions that discuss the Bill’s application.

What is bullying?

As a very general definition, bullying is an aggressive behavior of harassment or violence, usually directed to one person.  Bill 168 separates workplace violence and workplace harassment, offering these definitions:

“workplace harassment” means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome;

“workplace violence” means:

(a)  the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,
(b)  an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,
(c)  a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

A good example of workplace bullying (and how expensive it can be for employers) can be seen in the British Columbia Supreme Court’s decision in Sulz v Canada (Attorney General), [2006] 263 DLR (4th) 58.  In this case, the plaintiff, a former female member of the Royal Canadian Mounted Police (“RCMP”), claims that her immediate supervisors harassed her to the extent that she became so clinically depressed, she had no choice but to accept a medical discharge. The plaintiff was subjected to vulgar and aggressive language from her superiors, and received threats to her employment for going on medical leave due to complications with her pregnancy.

The Court found that the bullying had a severely negative impact on her mental health, affecting not only on her ability to work, but also on the extent to which she can enjoy her life and function as a member of her family and her community. As a result, the Court awarded the plaintiff $225,000 for past wage loss, $600,000 for future wage loss, and $125,000 for general damages, amounting to a grand total of $950,000.  The Crown appealed this decision, but the appeal was dismissed by the B.C. Court of Appeal.

Bill 168

The Bill officially came to life in 2010 when it received Royal assent. Among some of the obligations placed on employers, Bill 168 mandates that employers prepare policies relating to workplace violence and harassment, and review the policies at least once per year.  The Bill also prescribes how the program to implement the policies should be conducted, as well as how information should be distributed to employees. But perhaps most importantly, the Bill imposes a duty on employers to take precautions for the protection of an employee if there is a likelihood the employee may be subjected to bullying, either through harassment or violence, in the workplace.

For small and medium-sized employers, developing and implementing Bill 168’s policies can cumbersome and expensive, considering their limited resources.  Lawmakers did account for this problem to a degree by adding an exception that the regulations do not apply if the number of employees regularly employed at the workplace is five or fewer, unless an inspector orders otherwise. But if an employer has more than 5 regular employees, the rules must be strictly followed.

Recent examples of Bill 168 in action

In General Motors of Canada Ltd. V. Martin, 2009 CanLII 71654 (ON LRB), the Ontario Labour Relations Board heard a matter involving three separate complaints over a period of several months in 2009.  In all three complaints, an employee had verbally harassed another employee, either by threatening him with violence, or by calling him inappropriate names. The Board said this conduct amounts to workplace harassment.  What made this decision interesting is that fact that Bill 168 received royal assent after the alleged complaints, but before the Board’s decision was handed down.  As well, this particular GM plant in Windsor, ON, was scheduled to close.  It was argued that implementing Bill 168’s policies and training the workforce would be unnecessary.  The Board disagreed, ruling that GM was statutorily obligated to train the workers at the plant on a policy and program prior to the plants closing.

The Board’s Vice-chair John Lewis took the opportunity to make the following comments about Bill 168:

With the passage of Bill 168, the Act requires employers to prepare and post workplace violence as well as workplace harassment policies.  Employers are required to develop and maintain programs to implement both the workplace violence policy and the workplace harassment policy.  Workplace violence programs are required to have measures and procedures for workers to report incidents of workplace violence to the employer or supervisor and the means by which the employer will investigate and deal with incidents or complaints of workplace violence.

Bill 168 also requires employers to train workers as to the contents of workplace violence and workplace harassment policies.  The Bill also requires employers assess risks of workplace violence that may arise from the nature of the workplace and the work performed and must advise the Joint Health and Safety Committee, or the health & safety representative or workers directly of the results of such assessment.  Bill 168 even requires the employer to provide personal information about a person with a history of violent behaviour but such information is limited to what is reasonably necessary to protect a worker from physical injury. [Emphasis added]

In Universal Workers Union (Labourer’ International Union of North America, Local 183) v. Teston Pipelines Ltd, 2011 CanLII 78812 (ON LRB), the Labour Relations Board was tasked with deciding whether to uphold a 5-day suspension imposed on a worker who threatened to kill his foreman on two separate occasions. In making its decision, the Board made the following unarguable comment of law: “No employee should ever threaten to kill anyone else at work, much less his foreman.”

The Union argued that the worker was under considerable emotional stress at the time the comments were made, fuelled by a recent separation from his wife and children. Ultimately, the Board decided that these threats fit squarely within the definition of workplace violence, and that the employer is required to act, both to deal with the unacceptable behaviour, and to take steps to ensure that its policies are known and understood. The suspension was upheld.

In Kingston (City) v. Canadian Union of Public Employees, Local 109, 2011 CanLII 50313 (ON LA), Arbitrator Elaine Newman heard a matter involving an employee with 28 years seniority bullying a co-worker. The main allegation relates to when the woman made a death threat to her Local Union President. The Arbitrator held that under the Bill 168 amendments, an employer must react to an allegation of a threat: it must not be trivialized. In this case, it was held that the Employer took this language very seriously, and made that message clear and unequivocal.

However, it was noted that here is nothing in the Occupational Health and Safety Act that requires that an employee, found to have committed an act of workplace violence, be automatically terminated. While there are a variety of ways to deal with the matter, it is ultimately for the employer to determine, at the end of an appropriate investigation and consideration of options.  In this case, the City of Kingston decided to terminate the employee, factoring in the employee’s history of harassment in the workplace. The Arbitrator upheld the City’s decision.

Comments and employer’s duties

Bill 168 was introduced mainly as a result of the lobbying efforts of the family of Lori Dupont and Theresa Vince.  Dupont was killed by her ex-boyfriend, Dr. Marc Daniel, in 2005 at Hotel-Dieu Grace Hospital in Windsor, Ont., where they both worked. The hospital was aware Daniel had been harassing Dupont and that the situation was getting worse, but it did not discipline him. Theresa Vince was shot in the face and killed in Chatham in 1996 by a boss who had sexually harassed her for more than a year and against whom she had filed a harassment complaint.

The amendments are based on the theory that workplace violence can be foreshadowed, and that in many cases, it’s predictable.  By heeding the signs of danger, communicating clearly, and acting with clarity, violence can be prevented when employers, supervisors, and workers come together.

Under Bill 168, Employers must:

  1. develop and maintain an unambiguous program to implement workplace violence and harassment policies;
  2. designate a person as a workplace coordinator with respect to workplace violence and workplace harassment, and set out the duties of the coordinator;
  3. take every reasonable precaution in the circumstances to ensure the protection of a worker should the employer become aware, or ought reasonably to be aware, that domestic violence that would expose a worker to physical injury may occur in the workplace;
  4. provide information and instructions to the employees on the contents of the policy and program with respect to workplace violence and harassment; and
  5. set out a fair and transparent process for investigating complaints;

Yoga Retreats on Long-term Disability: Disputing Medical Evidence

If your job and personal life are starting to stress you out, and you want to get away from it all by going on long-term disability and taking a yoga retreat to India, chances are, your job won’t be waiting for you when you decide to come back. This is the outcome of a recent Ontario Arbitration Board decision on the matter of Ontario Power Generation v. Society of Energy Professionals, [2011] 108 C.L.A.S. 340.

Effectively, the decision is authority for the principle that just because a medical professional has made a recommendation to provide or extend long-term disability (“LTD”) entitlements, it does not mean an employer must automatically comply. This article will provide a breakdown of the Arbitration Board’s decision, and then discuss some of its implications.

Facts of the case

The Grievor was 40 years old. He worked for Ontario Power Generation (“OPG”) for 12 years as an engineer before resigning in November 2010.   He worked for the company until January 1, 2010 when he went on sick leave, suffering from severe mental stress and depression as a result of the breakup of his second marriage.

The Grievor was taking medication for depression, panic, insomnia and anxiety. He also attended a 6-week mental health program, but emerged from it, on his own assessment, worse off than when he entered. In mid-2010, the Grievor and his psychiatrist resolved that his mental health might improve if he were to attend an ashram (a yoga retreat) in India.  The idea was that the Grievor could improve his mental health through spiritual instruction and meditation of a 6 week period, where he’d also be collecting LTD benefits.

Great West Life disagreed with the idea on two fronts: 1) the company was not convinced a 6 week visit to an ashram would advance the Grievor’s treatment, and 2) that yoga and meditation could be reasonably be pursued in Canada.

During the fall of 2010, the Grievor told OPG, the Society of Energy Professionals, and Great West Life, that he was extremely anxious and having panic attacks, all because of Great West Life’s unwillingness to support his decision to get treatment at the ashram. Great West Life required the Grievor to undergo an independent medical assessment, but he declined.  Great West Life then informed the Grievor that if he chooses to go to the ashram, his LTD benefits would be suspended.

Great West Life arranged for a psychiatrist of its choosing to speak to the Greivor’s psychiatrist.  The consulting psychiatrist reported that, essentially, a 6 week long retreat to an ashram was unnecessary, because in her opinion, yoga was not a psychiatric treatment and because the Grievor must learn to manage his symptoms in the context of the normal stresses of his job, not the tranquil environment of an ashram.  In October 2012, despite the warning about LTD benefits being suspended, the Grievor left for India anyway. Later in the month, Great West Life cut off his LTD benefits.  Two days after the Grievor received notice from Great West Life, he resigned from his position at OPG.

The Grievor eventually recanted on his resignation, but OPG said it was too late.  At issue in the arbitration was the decision to cut off the Grievor’s LTD benefits, and whether the resignation was valid.

Arguments from the parties

LTD entitlements depend on employment with OPG.  As the line of reasoning goes, if someone is no longer employed by OPG, their LTD benefits will cease.  The LTD plan states that the benefits are not payable during:

A) Any period while the employee is not under continuing medical supervision and treatment considered satisfactory to Great West Life and OPG by a physician, or;

B) If the disability is due to a mental disorder, any period while the employee is not under the continuing care of a certified psychiatrist or care authorized by a certified psychiatrist.

OPG argues that the Grievor’s employment terminated as a result of the resignation, and therefore, the LTD grievance automatically falls away. The Greivor and his union, on the other hand, argue that the resignation was not genuine because the Grievor did not have the mental capacity to make it at the time.

Arbitrator’s decision

The Arbitrator, Christopher Albertyn, upheld the resignation. He specifically noted in the ruling:

The decision to quit appears not to have been a spur of the moment act, particularly because it occurred two days after notice of the LTD suspension and it was followed by emails that affirm the decision.Weighing on the Arbitrator’s decision was the Grievor’s conduct and receptiveness in relation to the second medical opinion Great West Life sought.

The Arbitrator said the Grievor was clearly firmly set on the idea of attending an ashram in India, returning to his family there, and having their support. However, the Greivor greatly resented the decision by Great West Life that he could not pursue this objective while continuing to be paid his LTD benefits, particularly when his psychiatrist supported his plan.

The Arbitrator noted that the Grievor was uncooperative with the insurer, by refusing to be examined by an independent psychiatrist. Given that the Grievor’s LTD grievance depended upon his continuing employment with OPG, and because the Grievor was found to have quit, the Arbitrator denied both grievances.

Curiously, because mental illness was a factor in the resignation and severance of LTD benefits, the Arbitrator decided that some compensation was necessary. OPG was ultimately ordered to pay the Grievor the sum of one year’s pay, calculated on the Grievor’s salary at the time of his resignation.


Medical experts and the law go hand in hand.  There is a very well developed body of law dedicated to medical experts and how their opinions should be considered.  As a general rule, a trier of fact is not obliged to accept any aspect of the expert opinion, even where it is uncontradicted.

This particular Arbitration Board decision didn’t necessarily deal with competing medical opinions, but rather, the right of one party to challenge the medical opinion put forth by the other. Before Great West Life would agree to continue the LTD benefits while the Grievor was in India at the retreat, the insurer wanted a second opinion.

As previously discussed, the Grievor refused the medical examination, forcing Great West Life to take an alternate route, namely, having one of its consulting psychiatrists meet with the Grievor’s psychiatrist. What’s interesting is that the Arbitrator gave a significant amount of consideration to the Grievor’s uncooperativeness. Had he cooperated and take the independent medical assessment in the first place, perhaps Great West Life would have received a second opinion stating that a 6 week retreat to an ashram was appropriate. This would have likely altered Great West Life’s decision to cut the LTD benefits.

The important point employers can take from this decision is that in the event a medical report is provided saying an employee should receive some sort of exotic treatment while still receiving LTD benefits, a second, independent medical assessment should be carried out, or at least proposed.

Employer’s Disclosure of Employee Medical Information Constitutes Invasion of Privacy and Harassment


In St. Patrick’s Home of Ottawa Inc. v. Canadian Union of Public Employees, Local 2437, [2016] O.L.A.A. No. 93, 126 C.L.A.S. 110, CanLII 10432 (ON LA), decided February 16, 2016, arbitrator Paula Knopf found the employer, St. Patrick’s Home of Ottawa Inc. (“St. Pat’s”), was liable for disclosing an employee’s medical note to another employer.


The Employer (“St. Pat’s”) operated a long term care facility for adults who require 24-hour care. The Employee (whose name was omitted from the decision for privacy reasons) worked for St. Pat’s as a part-time dietary aid, working 15 hours per week. The Employee also worked at West End Villa, a different long term care facility, as a part-time dietary aid/dishwasher.

The Employee did not make a request for accommodations at St. Pat’s and provided a medical note proving she could do the work. The medical note simply stated “pt is able to perform the duties of Dietary Aid at St. Pat’s home”. As such, the Employee continued her work at St. Pat’s without accommodation.

The other employer, West End Villa, became suspicious about the Employee’s claimed medical restrictions and accommodation requests. An administrator at West End Villa contacted the St. Pat’s and requested information about the Employee. In response to these requests St. Pat’s, through a contractor performing its management functions, confirmed that the Employee was not being accommodated, had no work restrictions and was working her scheduled shifts. West End Villa was also given a copy of the Employee’s medical note (even though the note was not specifically requested by West End Villa).

West End Villa terminated the Employee. Through a different arbitration proceeding, the termination was upheld on the basis that the medical information provided to West End Villa revealed the Employee could not be accommodated without undue hardship.

In the current case, the Union filed a grievance on the Employee’s behalf, arguing the release of medical information to another employer without the Employee’s consent was a breach of the Collective Agreement’s harassment provision, a breach of the Employer’s Confidentiality Policy, a breach of the Occupational Health and Safety Act (“OHSA”) and a violation of the tort of invasion of privacy (i.e. intrusion upon seclusion).

The Employer acknowledged that the release of the Employee’s medical information was inappropriate. However, it argued that since the manager who released the medical note was a contractor (rather than an employee of St. Pat’s) he had not been required to sign the company’s Confidentiality Agreement. The Employer further argued the medical note did not contain any medical diagnosis, health restrictions or personal information


The arbitrator began by considering two sections of the OHSA.

Section 63(1)(f) states “no person shall disclose any information obtained in any medical examination, test or x-ray of a worker made or taken under this Act except in a form calculated to prevent the information from being identified with a particular person or case.”

Section 63(2) states “no employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent.”

The medical note contained medical information and identified the Employee. The Employee gave no consent to release to medical note and West End Villa did not have any legal authorization to receive it. As such, the arbitrator found there was a clear violation of the OHSA.

The arbitrator considered whether release of the medical note constituted harassment. Under the Collective Agreement, harassment was defined as behaviour that is “offensive, embarrassing and humiliating” to any individual. The arbitrator took a firm stance on this issue and stated at pages 14-15 of her decision:

“The release of medical information about one’s personal health, regardless of the contents of the note,

is objectively offensive and embarrassing. It can also cause humiliation. It is not sufficient for this

Employer [St. Pat’s] to say that the contents of the note in question do not disclose any medical conditions

that would stigmatize or cause embarrassment to a reasonable person. Any medical information is personal,

private and must remain confidential. The nature and extent  of information that may be revealed in a medical

note may have a bearing on the remedy available when there has been improper disclosure, but the disclosure

of personal medical information of any kind is very disrespectful and offensive and therefore amounts to

harassment as defined by these parties in this Collective Agreement.”

Finally, the arbitrator spoke to the tort of invasion of privacy (defined as “intrusion upon seclusion” in Ontario). The elements of the tort are as follows:

1. The defendant’s conduct must be intentional (which includes reckless behaviour);

2. The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and

3. A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The arbitrator found that all three elements had been satisfied. The disclosure was done deliberately, without legal advice and without regard for the Employer’s confidentiality policy. It did not matter that the parties involved had an honest belief that they were acting appropriately. The release of the medical note was an intrusion into the Employee’s private medical affairs. Additionally, any “reasonable person would be offended by such conduct and would suffer distress as a result”.

Upon finding the Employer liable, the arbitrator considered five factors to determine the appropriate remedy:

1. The Nature of the Wrong Done to the Grievor – The arbitrator found that the Employer should have taken better steps to prevent this situation.

2. The Effect of the Wrong of the Grievor’s Health, Welfare, Social, Business or Financial Position – The Employee was embarrassed and humiliated by this breach, but there was no financial loss. The Employee did not lose her job at West End Villa because of the disclosure of the medical note. Any loss in her job was dealt with in a separate arbitration and as such there was no liability for economic loss against St. Pat’s.

3. The Relationship Between the Grievor and the Employer – The arbitrator noted that an employment relationship requires mutual respect and trust and an employee does not lose their right to privacy. As such, the employment relationship between the Employee and Employer meant the Employer was to keep safe medical information it had received.

4. The Distress, Annoyance or Embarrassment Suffered by the Grievor – The arbitrator attributed significant responsibility to the Employee. The fact that she worked for two employers doing similar jobs and provided conflicting medical information meant that the situation could not be solely attributed to St. Pat’s. 5. The Conduct of the Parties – While the arbitrator acknowledged the Employer’s apology, the arbitrator gave it very little weight as the Employer had waited almost three years to apologize. Also, the Employer had still not done anything to ensure its contractors complied with a privacy policy.


Arbitrator Knopf allowed the grievance and found for the Union. Given that the Employer did not comply with its own Confidentiality Policy and did not seem to have taken any steps to ensure compliance by its contractors, declaratory relief was not enough. Although finding that declaratory relief would not be enough in this case, the arbitrator recognized that in most cases “breaches of confidential information, including medical information, trigger only “modest” monetary recovery unless there are exceptional circumstances”. Since no such exceptional circumstances were present in this case, and because the disclosure did not reveal any stigmatizing medical condition, a nominal amount of $1000 damages was awarded.

Additionally, the arbitrator ordered a declaration that St. Pat’s employees must abide by its Confidentiality Policy and sign its Confidentiality Agreement in the future. The arbitrator noted the fact that the medical note did not reveal a medical condition was a mitigating factor.


Overall, employers must be cautious regarding the disclosure of an employee’s private information. Consent should always be obtained from the employee. In regards to medical information, even if medical documentation does not specify a condition or limitation, it is still considered to be private information. Even a single instance of disclosure may result in a finding of harassment, intrusion upon seclusion, and liability imposed on the employer. Staff, contractors and even third parties should be made aware of confidentiality obligations related to employee information and employee medical records.

Employee Terminations in the Federally Regulated Sphere: Wilson v AECL

The Supreme Court of Canada has made it clear that employees of federally regulated entities who are governed by the Canada Labour Code (the “Code”) cannot be terminated without just cause. The Court’s reasoning in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 settled a long-standing debate between two schools of thought regarding the appropriate remedy for unjust dismissal complaints under section 242 of the Code.

Prior to this decision, the Federal Court of Appeal, as well as a number of Adjudicators, had concluded that with a sufficient amount of termination and severance pay, any employee may be terminated without cause. This is the case for the vast majority of employers who are provincially regulated, and are able to terminate non-union employees at any time, subject to a few exceptions, including a duty not to discriminate as set out in the Human Rights Code.

The majority of the Supreme Court of Canada took the opposite position, concluding that in the absence of just cause for an employee’s dismissal, it should be considered unjust. The majority found that “unjust dismissal” was intended to mean that the employment relationship should not have been severed in the first place. In finding a way to restore the employee to a position they would be in but for the unjust dismissal, the appropriate remedy is to make it as though the dismissal did not happen. In other words, unjustly dismissed employees are entitled to be reinstated to their original position, with back pay to the date of termination.

Despite the compelling arguments of the Federal Court of Appeal and the dissent of the Supreme Court, the legal effect of the decision in Wilson is to give employees of federally regulated entities the same protection from unjust dismissals as unionized employees under a collective agreement. The majority of the Supreme Court found that looking at the purpose behind adding the unjust dismissal provisions in 1978, the federal Parliament intended to give employees the same protection from termination as their unionized counterparts.

From a practical standpoint, the major legal implications for federally regulated employers are:

1. Reinstatement is the “presumptive” remedy where there is a finding of unjust dismissal. An employee may not be terminated without just cause because Adjudicators have the authority under the Code to reinstate the employee with back pay to the date of termination.

2. Select groups of employees are not protected by the unjust dismissal provisions of the Code. These employees include those who have been employed for less than 12 months, managers, and individuals who are laid off due to lack of work, or are terminated because of the elimination of their job.

3. An assessment of whether an employer has “just cause” to terminate an employee is a fact-based exercise, and is a relatively high threshold. In the absence of extremely serious misconduct, employers are generally expected to exhaust the progressive discipline process before a decision to terminate will be upheld.

4. Prior to the Wilson decision, federal employers would be able to spare employees the distress of being terminated for just cause by simply paying an appropriate period of notice to sever the relationship. This also avoided the need to implement performance improvement plans and progressive discipline. However, these options are now off the table, and proof of just cause is required to terminate an employee.