Wrongful Dismissal

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.

[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.

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.