On July 25, 2014, the Supreme Court of Canada (the
"SCC") rendered an important decision for Québec
employers and employees bound by contracts of employment for an
indeterminate term. In Québec (Commission des normes du
travail) v. Asphalte Desjardins Inc., 2014 SCC 51 ("Asphalte
Desjardins"), the issue before the SCC was whether an employer
who receives a notice of termination from an employee can legally
terminate the employment contract before the expiration of the
notice period provided by the employee without, in turn, having to
provide reasonable notice or an indemnity in lieu of such notice.
The SCC answered the foregoing question in the negative.
The facts in Asphalte Desjardins were straightforward. The
employee provided his employer notice that he would be terminating
his contract of employment three weeks later. Three days after
receiving the employee's notice and after the employer was
unsuccessful in convincing the employee to stay, the employer
decided, without providing any notice or indemnity, to terminate
the employee's contract of employment the next day. The
Appellant, the Commission des Normes du Travail
(Québec's Labour Standards Commission) obtained, on the
employee's behalf, an indemnity equivalent to the
three-weeks' notice period sought in the employee's notice
In short, the SCC held that Québec employers cannot
"waive" or "renounce" employees' notices of
termination. A contract of employment for an indeterminate term is
not terminated immediately upon notice being provided. Rather, the
contractual relationship continues to exist until the date
specified in the notice. Accordingly, even after one party provides
notice, both parties must continue to perform their contractual
obligations until the notice period expires, and this includes the
obligation of the receiving party to provide its own reasonable
notice if it seeks to advance the date of termination.
Take-aways from the SCC's decision are the following:
From the employer's perspective: where an
employee provides a notice of termination, the notice period chosen
by the employee cannot be "imposed" on the employer. The
employer: (a) can deny the employee access to the workplace during
the notice period, but in such case, it is unilaterally terminating
the contract and must pay the employee's wages during the
notice period; or (b) can choose to advance the date of termination
and terminate the contract by giving reasonable notice of
termination or paying a corresponding indemnity.
From the employee's perspective: where an
employee receives a notice of termination from his/her employer
with a period to be worked (as opposed to an indemnity in lieu of
notice) and stops working prior to the expiry of the notice, he/she
breaches his/her contractual obligations and could be liable for
The foregoing must be distinguished from cases where: (a) a
party terminates a contract of employment for a serious reason, in
which case, notice does not have to be provided; or (b) an employee
resigns effective immediately but nonetheless agrees to keep
working for a certain period of time. In the latter case, the
employer may renounce its right to notice, and if it wants the
employee to leave immediately, there would be an agreement between
the parties and not a unilateral termination of the agreement by
the employer. As such, the employer would not be required to
compensate the employee.
The decision in Asphalte Desjardins is consistent with the
position adopted by the courts in Ontario to the effect that an
employer who wishes to terminate an employee prior to the date of
the employee's notice of resignation must provide the employee
reasonable notice or pay in lieu thereof.1
1 See Oxman v Dustbane Enterprises Ltd,  O.J.
No. 2067 (ONCA).
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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