The March 2013 Quebec Court of Appeal decision of Asphalte
Desjardins v Commission des Normes du Travail is a game-changer for
employers and employees alike. Employers are no longer bound by the
notice period given to them by employees who resign, thus removing
their obligation to pay the employee for the duration of the notice
The facts of this case are simple and not uncommon. Mr. Guay,
who worked intermittently for Asphalte Desjardins for approximately
four years, provided his employer with a resignation letter and a
three week notice period. The employer decided to waive the notice
period provided by Mr. Guay once it had accepted his
Prior to this case, parties took for granted that, at minimum,
the notice required by the Act Respecting labour standards (the
"Act") could not be waived by the employer. Faced with a
resigning employee that an employer did not want on the premises,
the employer had to pay the employee's salary that would have
been earned during the notice period.
In Asphalte Desjardins, the Court held that the employer did not
have to pay Mr. Guay three weeks of his salary, as sections 82 and
83 of the Act provides for notice or an indemnity in lieu of notice
(which varies depending on an employee's years of service) to
employees whose employment is being terminated unilaterally by an
employer and not in the case of a resignation.
Justice Bich, writing for the majority, held that the reasonable
notice provision stipulated in article 2091 of the Civil Code of
Quebec ("CCQ") is to the benefit of the person receiving
the notice. This is due notably to the fact that resiling from a
contract is a unilateral act and because the purpose of article
2091 CCQ is to protect the rights of the co-contracting party. In
other words, an employer has no other choice but to accept an
employee's resignation and its right to receive such notice.
With this contractual framework in mind, Justice Bich concluded
that if an employer decides to waive the notice period that
accompanies an employee's resignation, the employer is not
required to pay the employee for the remainder of the notice
This conclusion was reached after an analysis that favoured a
contractual approach rather than one predicated on the protection
of workers' rights. The Court focused on the ultimate
consequence of a resignation and decided that since the contractual
relationship between the employer and employee would terminate at
the end of the notice period, the employer's renunciation of
the notice would not change the fact that the relationship was, for
all intents and purposes, terminated. Justice Bich rejected the
idea that such an immediate end of the employment relationship
before the end of the notice period would constitute a termination
of employment by the employer, and which would entitle the employee
to reasonable notice or indemnity in lieu of notice pursuant to the
relevant provisions of the Act.
Justice Bich held that such an interpretation of article 2091
CCQ did not contradict sections 82 and 83 of the Act. The latter
are public-interest provisions intended to ensure that employees
receive a minimal degree of protection in cases in which the
termination of their employment contract is imposed on them by
While there has been a motion for leave to appeal submitted to
the Supreme Court of Canada, the current state of the law in Quebec
is that an employer may waive the notice provided by an employee
and cease paying their wages at the time of the waiver.
Practically speaking, in the event that the Supreme Court
overturns the Court of Appeal's decision, an employer will be
on the hook for unpaid wages in cases where it waived the notice
provided by an employee who resigned and the employee files a
complaint under the Act within the required one (1) year time
It may therefore be prudent to continue to pay an employee the
minimum amounts pursuant to the Act, during their notice period,
until the Supreme Court renders its decision, if it indeed grants
the leave for appeal. The decision on the motion for leave to
appeal is expected in the next six months. We will keep you
apprised of the progress of this case as it proceeds.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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