In Merritt v. Tigercat Industries, 2016 ONSC 1214, the
Honourable Justice D.J. Gordon ruled that an employer was
not justified in terminating its employee
for cause who had, among other things, been charged criminally with
two counts of sexual assault against a minor. Justice Gordon
granted the plaintiff employee summary judgment in the action and
awarded him damages amounting to 10 months' pay in lieu of
The plaintiff employee was 67 years old at the time the summary
judgment motion was heard. He was employed by Tigercat Industries
Inc., an Ontario corporation, as a labourer, truck driver and
material handler. He was originally hired by the corporate employer
in 1998. He was fired on February 2, 2015, purportedly for
While no written notice of termination was delivered to the
plaintiff, oral reasons are said to have been presented to him
pertaining to his discipline record, the impact or potential impact
of his criminal charges on the reputation of Tigercat and his
deceit regarding the involvement of other employees and other
The plaintiff commenced a wrongful dismissal action, and
eventually brought a motion for summary judgment. The motion judge
noted that a straightforward claim for wrongful dismissal without
cause is appropriate for summary judgment, but summary judgment
motions may also be used to determine whether termination was for
cause, depending on the evidentiary record.
In considering whether criminal charges and related reputational
harm to the company warranted dismissal of the employee, the motion
judge reviewed the specific circumstances of the employee's
Justice Gordon found as a fact that the plaintiff employee was
arrested and charged with two counts of sexual assault
against minors. Obviously, these are very
serious and concerning charges. The trial is set to commence in
September 2016, so the plaintiff, at law, was considered innocent
until proven guilty. No evidence was tendered on the motion
regarding the criminal allegations other than to note that they
were related to off-duty incidents and the events did not occur in
the workplace or involve other employees.
Based on a line of cases going back to 1947, the motion judge
held that "criminal charges alone, for matters outside of
employment, cannot constitute just cause." The motion judge
went on to find that improper conduct of an employee while not at
work can only form grounds for termination with cause in limited
situations — i.e., there must be a justifiable connection to
the employer or the nature of employment.
The motion judge ultimately found that the termination was
without cause because the employee was a general labour, as opposed
to a "manager, professional, or senior employee", and the
criminal charges were not associated with his employment and did
not involve other employees.
What Does This Mean for Employers?
This decision is a must-read for all employers, as it emphasizes
the delicate nature of terminating employment contracts without
notice for matters that occur when employees are off-duty and
outside the four corners of the workplace.
Sexual assault of minors is perhaps the most repugnant crimes
ever known — our children are the most beloved and cherished
members of civilization. They are our hopes, our dreams and our
future. They are also obviously the most vulnerable, which is why
any crime against minors, in particular those of a sexual nature,
are particularly obscene. The gut reaction of any employer to learn
of a situation where an employee is criminally charged with one of
the most repugnant crimes in the Criminal Code would surely be to
terminate, for cause, effective immediately.
However, this case displays the other side of the coin as well:
a party is innocent until proven guilty. Significantly, if the
alleged crime — no matter how vile — takes place off
duty without the involvement of other employees, and if the
employee is not in a 'front-line' position to cause
reputational harm to the company, then an employer may not be able
to terminate for cause.
This decision begs the question: "Will Ontario courts
arrive at the same decision if a similarly-situated plaintiff
employee was convicted of sexual assault of a
Based on the analysis in this case, the answer is perhaps not,
since the conduct would still have occurred off-duty, without any
justifiable connection to the employer or to the nature of
employment. The employee would also still be a non-managerial
employee which would minimize reputational harm.
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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