In its 2013 decision in Asphalte Desjardins Inc. v.
Commission des normes du travail, the Québec Court of
Appeal held that an employer had the right to waive the benefit of
the notice of termination period given by an employee who intended
The circumstances of the case involved the resignation of a
project manager for the company Asphalte Desjardins, who
had decided to join a competitor. The employer elected to waive the
benefit of the advance notice of termination given by the employee
and asked him to leave the company several days before the
expiration of the period specified in the prior notice. The
provincial labour standards board, the Commission des normes du
travail (the "Commission") consequently claimed, on
the employee's behalf, the three weeks' salary to which he
was entitled by virtue of his prior notice of resignation.
The Court of Québec's decision
At first instance, the Court of Québec ruled in favour of
the Commission, concluding that the employer had to respect the
date chosen by the employee as his last day of work and thus could
not terminate his employment on an earlier date without paying him
the indemnity to which he was statutorily entitled.
The Court of Appeal's decision
The initial decision was overturned by the Court of Appeal, in a
judgment drafted by Justice Marie-France Bich on behalf of the
majority, with a dissenting opinion by Justice François
The Court of Appeal concluded that the protection afforded by
Article 2091 of the Civil Code of Québec, which
obliges each party to an employment contract with an indeterminate
term to give reasonable notice to the other party if it intends to
terminate the employment relationship, is for the sole benefit of
the party receiving the notice, as it allows that party to mitigate
the inconvenience resulting from the termination1.
According to that logic, in such a situation there is no reciprocal
obligation to continue the contractual relationship during the
notice period and the employer was thus entitled to waive the
benefit of the prior notice period and terminate the employment
relationship immediately without having to indemnify the
The Supreme Court of Canada's decision
Canada's highest court disagreed with the Court of Appeal
and overturned its decision, agreeing instead with the
Commission's argument that an employer cannot terminate the
employment relationship before the expiration of the period
stipulated in an employee's notice of resignation without
assuming the financial consequences by paying the statutory
Contrary to the Court of Appeal, the Supreme Court found that an
employment agreement is a synallagmatic contract, i.e. one that
creates obligations to be performed by both parties.
Justice Richard Wagner, writing for the Court, points out that
the obligation to give prior notice pursuant to Article 2091 CCQ
applies to both the employer and the employee. He also indicated
that the employer must respect Quebec's Act respecting
Labour Standards, particularly, in this case, sections 82 and
83 thereof, which specify the length of the applicable notice
period and the amount of the indemnity in lieu of such notice.
Justice Wagner added that a contract of indeterminate duration
of an employee who gives notice of resignation to the employer
terminates upon the expiration of the period specified in the
notice, not on the date the notice is given. Each party must
accordingly fulfill their obligations until that period has
expired. Consequently, an employer wishing to terminate the
employment relationship before the expiration of that period finds
itself in a situation where the roles are reversed. The Court has
held, In other words, that it is the employer in such situations
who is terminating the employee's job and therefore must
compensate the latter in lieu of giving prior notice of
termination, in accordance with Article 2091 CCQ.
The Court explained the logic underlying this by pointing out
that an employer who waives the notice period is in effect
preventing the employee from working and depriving him or her of
the remuneration that otherwise would have been earned by the end
of the notice period.
The Supreme Court of Canada has conclusively ended all debate on
this issue. Henceforth, upon receiving an employee's notice of
resignation, an employer wishing to end the employment relationship
before the expiration of the period specified in the notice must
pay the employee the indemnity in lieu of prior notice provided for
in section 82 of the Act respecting Labour Standards,
calculated in accordance with the employee's number of years of
1. See paragraph 55 of the Court of Appeal's
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