Canada: Terminated Employee Awarded Aggravated Damages for Employer's Conduct

Last Updated: August 21 2017
Article by Kelly Nicholson and Kendra Heinz

Termination of employment can cause an employee a great deal of hardship. This is especially true when allegations of misconduct and insubordination are at play. The case of Lalonde v. Sena Solid Waste Holdings Inc, 2017 ABQB 374 cautions employers to exercise good faith when dismissing an employee.
At the time of his termination, Mr. Lalonde (the "Plaintiff") was a 56-year-old millwright who had worked at the Swan Hills Waste Treatment Plant (the "Facility") from April 15, 2008 until his dismissal on July 24, 2012. Prior to his dismissal, he had not received any verbal or written warnings from his employer, nor had he been subject to any suspensions.
On June 13, 2012, the Plaintiff was called to the office of his manager and was accused of a number of workplace infractions, including putting a life in danger, lying to his supervisor-, and insubordination. The Plaintiff was surprised by the allegations, but was not given an opportunity to respond. He was told he was suspended, and was escorted off the Facility by two other employees.

Subsequently, the Plaintiff made efforts to communicate his side of the story. For several weeks he did not hear anything from his employer, and became so upset while waiting for a response that he went on stress leave. Then, on July 24, 2012, the Plaintiff received a letter advising him that his employment had been terminated for just cause "due to [his] failure to follow safety procedures and [his] failure to follow [his] supervisor's instructions."
As a last resort, the Plaintiff wrote a letter to a Division Manager providing a detailed response to the allegations and asked a number of questions. The employer responded with a list of safety infractions it investigated in the course of making its decision to terminate him. The Plaintiff subsequently filed a claim against the employer seeking compensation for wrongful dismissal.

The Notice Period and Letters of Employment
The Court found that the Plaintiff had been wrongfully dismissed without just cause. As a result, the Court turned its mind to the question of an appropriate notice period. The Plaintiff had signed two employment letters in 2008 (the "April 2008 employment letter") and again in 2011 (the "February 2011 employment letter") when ownership of the Facility changed. The employer argued the April 2008 employment letter applied, as this limited reasonable notice to the amounts prescribed by provincial legislation. For his part, the Plaintiff argued the February 2011 employment letter should apply since it did not restrict the notice period to amounts set out in ss. 56 and 57 of the Employment Standards Code.
The Court found that the April 2008 letter applied, because the Plaintiff had been employed since April 20, 2008 and the February 2011 employment letter did not effectively restart his employment. The Court then assessed the limiting clause in in the April 2008 employment letter, which provided  

Should your employment with [the employer] be terminated for any reason, other than willful or professional misconduct, conflict of interest, disobedience or willful neglect of duty, that has not been condoned by [the employer], your sole legal entitlement will be notice of termination (or termination pay) and/or severance pay equivalent to the legal requirements, as prescribed by provincial legislation, and you will not be entitled to any payment in excess thereof.

The Court found that termination for any reason "other than willful or professional misconduct, conflict of interest, disobedience or willful neglect of duty that has not been condoned by [the employer]" would have limited the Plaintiff's entitlement to the amounts prescribed by provincial legislation. However, the Court went on to find that if the reason for termination is "willful or professional misconduct, conflict of interest, disobedience or willful neglect of duty that has not been condoned by [the employer]" then by implication the employee's entitlement is not limited to the amounts prescribed by provincial legislation. Since the Plaintiff was terminated for alleged disobedience and professional misconduct, the April 2008 employment letter did not have the effect of limiting the amount of notice he was entitled to be paid. The Court ultimately decided upon a notice period of six months.

Aggravated Damages

The next issue concerned whether the Plaintiff was entitled to aggravated damages for how he was treated by his employer before and after the termination: he was accused of theft, humiliated, and escorted off company property in full view of his co-workers. It was also significant that throughout the entire litigation, the employer maintained its grounds for just cause, until the first day of trial in May 2017 when it withdrew its allegations. The Plaintiff argued his reputation in the small town he resided in was harmed by the employer's bad faith conduct.
The Court characterized what had happened as a case where the employer decided to "shoot first and ask questions later." Mr. Justice Gill held the actions of the employer amounted to a breach of the obligation of good faith and fair dealing as considered by the court in Wallace v. United Grain Growers Ltd, [1997] 3 SCR 701. The employer maintained the wrongful allegations as "serious safety violations and insubordination" from the date of the Plaintiff's suspension for a period of nearly five years, up until shortly before trial. It also terminated his employment without regard for his explanation and without giving him a full opportunity to explain the alleged misconduct. This conduct breached the requirement of good faith and the expectation of both parties to the contract that the employer would act in good faith in the manner of dismissal. An award of $75,000 was granted to compensate the Plaintiff for the employer's conduct.


Employers are urged to review termination clauses in letters and contracts of employment to ensure they clearly limit notice amounts if – and in the manner – intended to do so. In this case, the Court found the reasons for dismissal relied upon by the employer did not limit the Plaintiff's entitlement to the amounts prescribed by provincial legislation, based on the wording of the clause and what it implied. The Court's finding underscores once again the crucial importance of clarity and precision in drafting termination clauses.
In addition, the Lalonde decision suggests that, in cases of wrongful dismissal, the Court will consider the employer's conduct in carrying out the termination. If there is any indication the employer has acted in bad faith, in particular by humiliating the employee in some fashion, or denying an opportunity to make full answer to allegations of wrongdoing, the Court may award aggravated damages.

The lawyers in the Field Law Labour and Employment Group can assist you and your organization in reviewing termination clauses in letters and contracts of employment in order to safeguard your interests.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions