Does an employee's three-year absence from work amount to
frustration of contract; or, does it constitute wrongful dismissal
and a breach of human rights legislation? The challenging
issues at stake in this type of situation were raised in the recent
case of Boucher v. Black & McDonald Ltd.
The plaintiff was a business development representative who
worked for the defendant. The defendant is involved with
controlled heating, ventilation, HVAC and boilers.
The plaintiff went on a maternity leave in June 2010. The
maternity leave was followed by a medical leave which lasted until
the fall of 2013. In the interim, there were a number of
dates of possible return to work. Due to various
circumstances, the plaintiff did not return. However, in her
evidence, it seemed clear that she felt by September 2013 that she
would return to work before year end. A graduated return to
work was proposed to start on or about November 11,
2013. However, the plaintiff was advised on October 31, 2013
that her employment was terminated effective that day.
The plaintiff sued claiming wrongful dismissal and breach of her
human rights. The defendant argued that the employment
contract was frustrated, and that there had been no intent to
The trial judge found that the plaintiff had been wrongfully
dismissed. The trial judge also cited Wilson v. Solis
Mexican Foods Inc. in deciding that the plaintiff should
receive compensation in the amount of $20,000.00 for the
defendant's breach of the Human Rights Code.
Employers should therefore continue to be wary of the risk of
breaching human rights legislation when deciding whether to fire an
employee who has been absent from work because of sickness or
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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