On July 25, 2014, the Supreme Court of Canada overturned the
judgment of the Quebec Court of Appeal in Asphalte Desjardins Inc.
and Commission des normes du travail (Commission). In this case,
the employee in question had been working for his employer since
1994. On Friday, February 15, 2008, he gave his employer a notice
of resignation in which he announced that he intended to terminate
his contract of employment as of March 7, 2008, that is, three
weeks later. On Monday, February 18, the employer decided to
terminate the contract of employment the very next day, i.e., on
February 19, 2008, rather than on March 7, 2008.
The Commission claimed, on behalf of the employee (who, in
accordance with the Act Respecting Labour Standards (ALS)
was entitled to 8 weeks' notice considering his years of
service), an indemnity equivalent to three weeks' notice,
consistent with the notice of termination the employee had given in
his letter of resignation, as well as the monetary value of the
annual leave, in the same proportion. The Court of Québec
found in the Commission's favour, but the Court of Appeal ruled
This appeal raises the issue of the interplay of the provisions
of the Civil Code of Québec
(C.C.Q.) and the ALS relating to the effect of the
notice of termination. The Supreme Court has confirmed that a
contract of employment is not automatically terminated upon receipt
of a notice of termination; on the contrary, the contractual
relationship continues until the date set out in the notice of
termination given by the employee or the employer. As a result, an
employer who receives from an employee the notice of termination
provided for in Article 2091 C.C.Q. cannot unilaterally terminate
the contract of employment for an indeterminate term without
fulfilling his own obligations regarding termination of employment.
If the employer refuses to allow the employee to continue working
during the notice period, he is deemed to terminate the contract
within the meaning of section 82 ALS and is liable for payment of
an indemnity in lieu of notice.
In conclusion, once notified of the date on which an employee
wishes to leave his employment, an employer who objects to the
employee continuing to work during the notice period may either 1)
in turn give notice of termination or pay an indemnity in lieu of
notice in accordance with Article 2091 C.C.Q. and sections 82 and
83 ALS, or 2) ask the employee not to return to work, while
continuing to pay him during the notice period. The Supreme Court
has drawn a distinction between the situation in the case at bar
and the case where an employee notifies his employer that he
intends to resign immediately, but offers nevertheless to stay on
for a certain period of time. In that case, if the employer indeed
wants the employee to leave immediately, there is a meeting of
minds, and notice of termination is unnecessary, given that a
contract for an indeterminate term may be terminated by agreement
between the parties.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).