An employee was dismissed after missing 960 days of work over 7 ½ years and unlikely to “work on a regular and continuous basis.” The Supreme Court of Canada found that “[i]f the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future, even though the employer has tried to accommodate him or her, the employer will have satisfied the test”.

Common Law Mitigation: Evans v. Teamsters Local Union No. 31, 2008 SCC 20 (“Evans”)

Four months after termination, an employee was asked to return to work to serve out the balance of 24 months’ notice. The Supreme Court of Canada ruled that when an employer ends an employment relationship without notice, the employee has to act reasonably and may in some circumstances, have to return to the employer to mitigate his damages as long as there are no material changes in the terms of employment.

Wallace Damages: Honda Canada v. Keays, 2008 SCC 39 (“Keays”)

The Supreme Court of Canada changed the law as it pertains to “Wallace damages” and made it far more difficult for employees to claim bad faith damages for the manner of dismissal. Honda terminated a 14 year employee who suffered from chronic fatigue syndrome after he refused to meet with an occupational medical specialist to determine his medical condition regarding accommodation. The Supreme Court of Canada noted that aggravated damages will only be awarded where employees have proven that they have suffered actual compensable mental distress from the bad faith behaviour of the employer in the dismissal process. This is not to be done by a mere extension of the notice period.

Soma Ray-Ellis is a Partner and Head of the Employment and Privacy Group at Paterson, MacDougall LLP. She is also author of Halsburys Laws of Canada – Discrimination and Human Rights.

Human Rights: Hydro-Quebec v. Syndicat des employé-e-s de techniques profesionelles et de bureau d’Hydro-Québec, section locale 2000, 2008 (SCFP-FTQ) SCC 43

Tags: Employment Law

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