Written by Christina Catenacci, BA, LLB, LLM, PhD, Content Editor, First Reference Inc.

In August 2023, the Court of King’s Bench of Alberta dismissed an employee’s claim of constructive dismissal because it turned out that, on the evidence presented, the claim would not succeed at trial and was without merit. More specifically, the employee could not show that his employment contract was unilaterally changed to his detriment, or that the employer’s conduct demonstrated that it no longer intended to be bound by the terms of the employment contract (including the company Code of Conduct). Rather, the employee’s accusations of mistreatment . . . [more]

Written by Daniel Standing LL.B., Editor, First Reference Inc.

Surreptitious recordings aren’t restricted to the realms of James Bond movies and undercover police work; they crop up in employment disputes, too. Whether the decision-maker presses “play” depends on the outcome of a delicate balancing act that pits the value of the recording against the prejudice it might cause. The Court of King’s Bench of Alberta’s analysis in 2022 ABKB 813 (CanLII) is instructive to employers and employees alike. . . . [more]

Written by Lewis Waring, Paralegal, LL.B., Articled Clerk, Editor, First Reference Inc.

In a recent ruling, it was found that an employee was successful at fulfilling his mitigation obligations, even though he was not successful at mitigating his loss. Although failing to look for a job seems like a clear failure to mitigate a loss of employment, this ruling clarified that an employee only fails to mitigate when comparable employment is actually available. If an employee’s job market does not contain any comparable roles, any failure to take reasonable steps to find comparable employment will not be a failure . . . [more]

Written by Daniel Standing, LL.B., Editor, First Reference Inc.

The law doesn’t easily tolerate those who sleep on their rights. In the world of wrongful dismissal, the adage “you snooze, you lose” rings particularly true. A recent decision of the Court of Appeal for Alberta (2022 ABCA 230) illustrates how an employee’s delayed objection to significantly changed terms of employment can leave them stuck with the changes. The court also provides helpful advice about factors that might serve to lengthen or shorten the amount of time an employee has to think before choosing to act. . . . [more]

In a recent decision by the Court of Queen’s Bench of New Brunswick, an employer was found to have constructively dismissed its employee when it haphazardly told him he was to be “furloughed” and sent him home without pay for an indefinite period of time. The employer’s behaviour was not a legitimate temporary layoff but was instead a clear breach of its obligations under its employment contract. While the employer may have intended to temporary layoff the employee in response to the serious repercussions of the COVID-19 pandemic on its business, its careless verbal notice and failure to provide a . . . [more]

Written by Lewis Waring, Paralegal, Student-at-law, Editor, First Reference

In Hunsley v Canadian Energy Services LP, 2020 ABQB 724 (CanLII) (“Hunsley”), the Alberta Court of Queen’s Bench (“ABQB”) found that a wrongfully dismissed employee was entitled to receive his regular pay and benefits during his notice period despite the reality that the employer had reduced compensation for employees during a pandemic pay cut. Although workers who stayed actively employed during the pandemic were subjected to the employer’s unilateral pay cut, this cut was recognized to be an act of constructive dismissal and thus did not factor into the employee’s . . . [more]

Lewis Waring, Paralegal, Student-at-law, Editor, First Reference Inc.

In McGuinty v 1845035 Ontario Inc (McGuinty Funeral Home) (“McGuinty”), an employee who returned to the workplace after an extended leave was found to have been constructively dismissed despite the fact that he had continued to work after the event leading to his constructive dismissal had taken place. McGuinty is important because it shows employers that a possible constructive dismissal claim does not necessarily go away once an employee returns to the workplace. In other words, a constructive dismissal claim does not require that an employee no longer comes into the office. . . . [more]

Daniel Standing LL.B., Editor, First Reference Inc.

In McLean v Dynacast Ltd., 2019 ONSC 7146 (CanLII), the employer drastically changed the plaintiff’s job and forced him to accept the new arrangement or quit. The plaintiff chose the latter option and successfully sued for constructive dismissal. In accepting the plaintiff’s claim, the court summarized recent case law on mitigation, and awarded significant aggravated or moral damages to the plaintiff. . . . [more]

Written by Daniel Standing LL.B., Editor, First Reference Inc.

No one wants to work in a toxic work environment. Some may persevere despite the negativity. Others may make a formal complaint and await an investigation, while others may resign. In Gibb v. Palliser Regional School Division No 26, 2020 ABQB 113 (CanLII), Madam Justice J.C. Kubik considered the plight of an employee who chose the third option and then sued her former employer alleging constructive dismissal. Before rejecting the claim, the court summarized the law on resignations and constructive dismissal. Ultimately, while an employee may feel that a workplace . . . [more]

By Lewis Waring, Paralegal and Student-at-Law, Editor, First Reference Inc.

One of the most important crucial aspects of managing the employment relationship is written policies. Company policies, when drafted and applied properly, can be an effective shield against liability in many employment law cases. Through policy, an employer sets the rights and obligations of the employer and the workers within the workplace. When employers draft up-to-date policy that stays within legal boundaries and workers are kept notified about their rights and obligations under that policy, employers may often successfully fend off legal action such as wrongful dismissal or constructive dismissal. . . . [more]

The Ontario Superior Court of Justice recently found that the communications and conduct of the employer’s lawyer regarding sexual harassment investigation were not privileged and could be referred to in the employee’s Statement of Claim in the litigation against the employer

What happened?

A long-service employee (employed since 2002), while being placed on a performance improvement plan (PIP), raised allegations that her supervisor was bullying and sexually harassing her. In response, her employer:

• Conducted an investigation but failed to interview the complainant employee during this process;
• Concluded that the claims were unsubstantiated.

When the New Brunswick Legal Aid Services Commission decided unilaterally to place its executive director David Potter on indefinite paid suspension, the employee challenged the decision in court. The commission took the position that Potter’s legal challenge meant he had resigned, and cut off his pay and benefits. The case went to the Supreme Court of Canada and in Potter v. New Brunswick Legal Aid Services Commission, the Supreme Court concluded that Potter was constructively dismissed and did not voluntary resign his position. The central issue was whether and in what circumstances a suspension with pay of a non-union . . . [more]