In Québec, employment law requires that the employer
provide reasonable notice or indemnity in lieu of notice when
terminating an employee without cause. Such obligation also applies
to an employee who is required to give reasonable notice of
Until recently, the courts refused to recognize the
employers' right to waive the notice of resignation.
Consequently, an employer who asked an employee to leave prior to
the end of the notice period was deemed to terminate such employee
without cause and had to pay his or her salary until the end of the
notice period or provide a minimum compensatory indemnity in
accordance with the Act respecting labour standards.
However, this well established principle was overturned by the
Québec Court of Appeal in 2013 (Asphalte Desjardins inc.
c. Commission des normes du travail1). The facts of
the case were simple. The employee had given a notice of
resignation to his employer three weeks prior to leaving. The
employee was leaving to work for a competitor. Instead of waiting
until the end of the three-week period, the employer asked him to
leave immediately and refused to pay severance. According to the
Québec Court of Appeal, the employer had the right to waive
the notice of resignation. In such case, the resignation became
effective immediately and did not entail an obligation to pay
On July 25, 2014, the Supreme Court of Canada overturned the
decision of the Québec Court of Appeal and clearly
reiterated Québec employers' obligation toward an
employee who gives a notice of resignation.2 The
employer cannot waive the notice of resignation. If the employer
prevents the employee from working and refuses to pay him or her
wages during the notice period, it is "terminating the
contract" and requires a notice of termination or indemnity in
lieu of such notice:
"Of course, the notice period chosen unilaterally by
the employee cannot be "imposed" on the employer. An
employer can deny an employee access to the workplace during the
notice period, but must nonetheless pay his or her wages for that
period, provided that the employee's notice of termination was
given in reasonable time. The employer can also choose to terminate
the contract by giving notice of termination in reasonable time or
by paying the corresponding indemnity in accordance with art. 2091
C.C.Q. and under ss. 82 and 83 of the Act respecting labour
The Supreme Court's reasoning in this case is in line with
the traditional approach of the Québec courts in the cases
preceding the judgment of the Court of Appeal. It also appears to
be in line with the approach adopted by common law provinces. In
the Ontario leading case on this matter4, the Ontario
Court of Appeal held that the employment relationship was not
terminated by the employer's waiver of the employee's
notice of resignation. If the employer wished to terminate the
employee prior to his or her effective date of resignation, it was
required to provide the employee with reasonable notice prior to
his or her termination or compensation in lieu thereof.
The key point to be retained from the Asphalte
Desjardins matter by Québec employers is that they are
not allowed to waive the employee's notice of resignation.
While many employers will chose to deny access to the workplace to
an employee after he or she submitted notice of resignation, such
decision will entail an obligation to pay the employee's wages
for the notice period, provided such notice was given in reasonable
time, or to pay indemnity in lieu of notice in accordance with the
Civil Code of Québec and the Act respecting labour
1 Asphalte Desjardins inc. c. Commission des normes
du travail, 2013 QCCA 484.
2 Quebec (Commission des normes du travail) v. Asphalte
Desjardins inc., 2014 SCC 51.
The foregoing provides only an overview and does not constitute
legal advice. Readers are cautioned against making any decisions
based on this material alone. Rather, specific legal advice should
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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