The Tribunal administratif du travail recently released Major c. Nova DM Média Canada
inc., 2016 QCTAT 4423, which clarified an employer's
burden of proof to demonstrate that an employee was laid off as
part of an administrative reorganization rather than dismissed not
for good and sufficient cause.
In this decision, administrative judge François Caron
relied on Selianov c. ABPTS inc., 2010 QCCRT
0138, in order to explain the burden of proof in the context of
redundancy dismissals. Selianov established that in case
of dismissal, the employer must prove, on a balance of
probabilities, that the economic or organizational reasons are real
and that the termination of employment is a result of those
reasons. Therefore, these reasons cannot be used as a pretext to
conceal a constructive dismissal and the employer must establish
that the criteria used to select the employee are objective,
impartial and not based on the employee's subjective
characteristics. Once this has been demonstrated, the employee must
then show that the economic or organizational reasons are not
well-founded or that the selection criteria used by the employer
are unfair, unlawful or unreasonable.
On the merits of the case, administrative judge Caron concluded
that the employer's reasons supporting the administrative
reorganization were real and that there was a causal link between
those reasons and the termination of the laid-off employee's
employment. The administrative judge specified that the employer
was not required to file its financial statements or other
documents of this nature to establish that the reasons supporting
its administrative reorganization were real. Rather, the employer
can establish its reasons by way of testimony. The administrative
judge also held out that lay-offs can occur even in the absence of
In this case, the employer had selected the laid-off employee
based on the fact that his salary was higher than the other
employee working in the same department who took over some of the
laid-off employee's duties. Thus, while this second employee
subsequently performed 70% of the laid-off employee’s tasks,
this was not sufficient to conclude that the laid-off employee had
been dismissed rather than made redundant. Therefore, when a
position is abolished, it does not necessarily mean that the tasks
that were attached to it cannot be accomplished anymore within the
company. The employer may choose to internally redistribute a
significant portion of the tasks while dropping others as part of a
genuine administrative reorganization.
Finally, administrative judge Caron concluded that the decision
to dismiss the employee in favor of a less qualified and less
expensive one was reasonable. The remedy under section 124 of the
Act Respecting Labour Standards was not allowed.
We believe that this case is of interest to non-unionized
employers who wish to conduct an administrative reorganization.
However, such employers should bear in mind that they may have to
fulfill additional obligations under any applicable employment
agreements and the civil law.
Written with the assistance of Geneviève Plante,
About Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global law firm. We provide the
world's preeminent corporations and financial institutions with
a full business law service. We have 3800 lawyers and other legal
staff based in more than 50 cities across Europe, the United
States, Canada, Latin America, Asia, Australia, Africa, the Middle
East and Central Asia.
Recognized for our industry focus, we are strong across all the
key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
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).