Another Just Cause Clause Bites the Dust:

In Ojo v Crystal Claire Cosmetics ( 20121 ONSC 1428) Diamond J. had a situation of a 52 year old Warehouse Manager with only 10 months service.

The Plaintiff had a termination clause in his employment contract which read as follows:


Crystal Claire maintains the right to terminate your employment at any time and without notice or payment in lieu of thereof, if you engage in conduct which constitutes just cause for summary dismissal. 

In the absence of just cause, Crystal Claire may terminate your employment at any other time and for any reason upon providing you with either advance notice and/or applicable payments equivalent to the minimum applicable entitlements contained within the ESA, as amended. For greater certainty, Crystal Claire’s maximum liability to you for common law notice, termination pay, severance pay, or payment in lieu of notice shall be limited to the payment of the amounts specified in the ESA.” 

The termination clause was held to be  invalid for two reasons:

  1. The words ” conduct which constitutes just cause for summary dismissal ” was contrary to the ESA which has a higher standard of “guilty of wilful misconduct, disobedience or wilful neglectful duty that is not trivial and has not been condoned by the employer.” This is entirely consistent with the Ontario Court of Appeal’s decision in Waksdale v. Swegon North America Inc. 2020 ONCA 391 (CanLII), “
  2. The second argument is that because the clause did not refer to benefit continuation during the ESA termination pay period, it was illegal. Here is the defence argument was a little more nuanced. 

    [22] The defendant relies on the decision of Justice Monahan in Burton v. Aronovitch McCauley Rollo LLP 2018 ONSC 3018 (CanLII) in which the court was faced with the following termination clause: 

    “AMR may, at its sole discretion, terminate your employment without cause (a ‘Non-Cause Termination”’. In the event of a Non-Cause Termination, AMR shall provide you with severance pay in accordance with the Employment Standards Act, as amended, and any successor legislation, if so required as at the time of a Non-Cause Termination; and 

    Notwithstanding the foregoing, and for greater certainty, if the amounts which you would receive upon a Non-Cause Termination, as set out above, are less than the amounts to which you would be entitled under the Employment Standards Act, as amended or any successor legislation, then you shall be entitled to notice, severance pay, and any other payment required by the relevant legislation in force as at the time of the termination.” 

    [23] Justice Monahan held that the chosen wording (“any other payment required by the relevant legislation”) contemplated the continuation of benefits, and thus the termination clause before him complied with the Act. 

    However, this Judge did not see it the same way .[24] In my view, the Burton decision is distinguishable. I agree with the plaintiff that the termination clause in this proceeding requires the defendant to pay the plaintiff his minimum termination pay, but not the obligation to continue paying the plaintiff the value of his benefits during the minimum notice period required by the Act. The termination clause, at best, allows the defendant to provide the plaintiff with payments equivalent to the minimum applicable entitlements under the Act. 

    My Comments :

    In Ojo,  the clause entitled the Plaintiff to receive “applicable payments equivalent to the minimum applicable entitlements contained within the ESA,”. 

    This was held not to include benefits : 

    In the Burton case, the Plaintiff was to receive “and any other payment required by the relevant legislation”.

This was held to include benefits .

Both cases used the same term ” payments or payment ” but apparently they mean different things to different judges.

Ain’t the law wonderful?

The Judge awarded 3 months notice. Not bad for a guy with only 10 months service.

As this case is not yet on the CanLII website, if you want a copy just send me an email at and I will send you a copy .



Off Sick for 2 Years with No Medical Note is Not Job Abandonment:

In Hettrick v Triple F Paving (2021 ONSC 208) Miller J. had a situation where a 73 year old office manager with 21 years of service went off on a sick leave. Her employer asked for a medical note but did not say that in the absence of a medical note she would deemed to have quit. She obtained a medical note but for some inexplicable reason did not send that note to her employer. Two years later, she wrote to her employer saying that she is OK and ready to come back to work on a graduated basis. The employer refused her request and said  that she abandoned her employment and that there was no vacancy.

The Court held that there was insufficient notice by the employer to the employee as to what would happen if she did not deliver a medical note. The Court said as follows

[40] Triple F submits that it is undisputed that Ms Hettrick was advised that they required a copy of her medical certificate in order to authorize her request for medical leave. I find that the evidence does not go that far. 

[41] Nowhere in the correspondence to Ms Hettrick did Triple F specifically tell her that a medical certificate was required in order to authorize her request for medical leave. The only email reply to Ms Hettrick’s request for medical leave, in which specifically asked to be advised in writing – at her email address – “what additional information is needed to process this request.” was the response “Sounds great to me, Bev.” 

[42] While Triple F did request a doctor’s note by way of a Post-it note, that communication did not indicate that a medical certificate was required for the medical leave to be approved. Neither did the letter of October 15, 2015. In that letter, Triple F simply indicated that if the requested doctor’s note was not received by October 31, 2015 they would have to advise the Canada Revenue Agency that the Record of Employment is “to be cancelled for lack of verification”. 

[43] Aside from these communications, there is no evidence to support Triple F’s assertion that they “made continuous attempts to communicate with Hettrick regarding the status of the medical certificate and the status of her medical leave, which went wholly ignored”. 

[44] It is not disputed that Ms Hettrick did not take any steps to have the medical certificate delivered to Triple F, nor did she request that her physician deliver the medical certificate on her behalf. Triple F questions Ms Hettrick’s evidence that she was not well enough to send in the doctor’s letter of November 27, 2015. 

[45] Triple F points out that the letter from the physician dated July 5, 2018, is not contemporaneous with Ms Hettrick’s purported inability to send in the November 27, 2015 letter. Triple F submits that the contents of the letter of July 5, 2018 is not in affidavit form nor has the doctor been qualified as an expert. Triple F relies on Betts at paragraph 62 which indicates: 

Employees on medical leave will not be immune to abandonment where they have failed to follow employee policies and where there is no medical evidence available to support that the employee could not comply with these policies. 

[46] Ms Hettrick relies on Lemesani v. Lowerys Inc., 2017 ONSC 1808 at para. 134 in support of her position that an employer must demonstrate that an employee’s words or conduct clearly and unequivocally indicated an intention to abandon their employment. 

[47] Ms Hettrick relies on Nagpal at paragraph 39 in support of her position that an employee’s failure to communicate during a medical absence is not an unequivocal indication of an intention to abandon one’s position. Further, the Ontario Divisional Court held, in Sutherland v. Messengers International, 2018 ONSC 2703 at para. 25 that where there is confusion or uncertainty over whether an employee abandoned his engagement, the onus is on the employer to clarify with the employee whether he or she quit. 

[48] Ms Hettrick relies on evidence that at no point prior to November 6, 2017 did Triple F: attempt to clarify the status of her medical leave; inquire whether her intention to return to work had changed; suggest that she had “abandoned” her position; or warn that her position would be considered “abandoned” by the company. 

[49] Further, Ms Hettrick’s request for leave, made September 29, 2015 clearly communicated her desire to return to work when able and her expectation that that “all duties and responsibilities” associated with her job “will be fully reinstated”. At no time did Ms Hettrick resile from this position, nor did Triple F at any point, before November 7, 2016 warn Ms Hettrick that her expectation that she would be able to return to her former position would or could not be met. 

[50] I find on the evidence, that Ms Hettrick never abandoned her position. To the contrary, at the time she requested leave, she specifically communicated to Triple F her desire to return to her position once well. I find that Triple F has not established that Ms Hettricks’s words or conduct clearly and unequivocally indicated an intention to abandon her employment. 

He went on to find that reasonable notice was 18 months and that at age 73 she had no duty to mitigate.

My Comments :

This case sets a very high standard to prove job abandonment. In essence the employer must make it very clear that if the employee does not do something within a specific time frame ( i.e. get a medical note, appeal an insurer’s denial, suggest accommodation or return to work) then they will probably lose this argument.

Had the employer done a proper follow up on the medical note and had the doctor continued to say that she could not predict when the employee would recover, then after some period of time the employer may have been able to rely on the doctrine of frustration. This would wipe out the employee’s entitlement to reasonable notice and the employee would only  her ESA minimums. As this defendant was a small family business, it seems likely that they did not have a payroll in excess of $2.5 million and thus all the plaintiff would receive is 8 weeks  termination pay.

The Judge’s comments on having no duty to mitigate at  age 73 is refreshingly honest. I often have employers at mediation who claim that age is not a barrier to finding a job as they proclaim that they employ many older workers. I then ask them ” How many 73 year old employees did you hire in the last year?” Silence is the usual response.

I suspect that this employer simply assumed that at age 73 the plaintiff was simply going to drift into retirement and they would never have to hear from her again.

They were wrong.

Lesson : Don’t underestimate the older worker.



New Decision on Bardal Factors , COVID, CERB, and Commissions During Notice Period :

In Oriotakis v Pennisula Employment Services Ltd ( 2021 ONSC 998) Justice Dumphy had reason to comment on a number of topics relating to both the calculation of reasonable notice and how to calculate damages regarding commissions over a notice period.

  1. Assessing Notice:  : Although the plaintiff had the fancy title of Business Development Manager , he did not supervise anyone and was actually a salesman. This is what the  judge said about the issue of how important is was to determine if this was a senior position .[8] The entire debate regarding the relative seniority or degree of responsibility of the employee’s position is, in my view, a product of an overly literal approach to the application of the so-called “Bardal factors” examined by our courts in considering the question of reasonable notice. These factors that are better understood as guidelines to approach the consideration of a problem rather than an exhaustive and mathematically determinative formula. For better or for worse, the determination of the level of reasonable notice at common law is a highly fact-specific exercise permitting few precise comparisons from case to case, an observation that does not preclude deriving helpful guidance as to appropriate ranges in particular. 

    [14] There are few questions more vexing than that of determining reasonable notice under the common law of the employment contract as it has evolved over the years. Difficulty is not a reason not to undertake the task nor does conflict in the jurisprudence render subjective a task that is intended to be undertaken objectively and on a principled basis. The fact of the matter is that the Legislature has had any number of opportunities to wrestle with the problem and lay down clear rules to be followed in all cases. They have not done so or, perhaps more accurately, they have consistently mandated only minimum standards leaving contract and the common law to fill in the remaining blanks. This indicates to me an implicit acceptance by the Legislature that the fact-specific analysis demanded by the common law remains a viable and even desirable means of approaching the question. 

    The Judge then undertakes a painstaking analysis of the various cases presented to him by counsel and comments on how they are similar or different from the case before him.

    This approach is a common judicial approach and has always troubled me. Howard Levitt years ago in his book counted 107 separate factors considered by the Courts in assessing reasonable notice. If there are that so many factors to consider, then there is simply no certainty or ability to predict an outcome. If every case of wrongful dismissal requires this intense examination, then how could any employer or employee reasonably determine what reasonable notice is  when the most important factor would seem to be the identity of the judge.

This is why, back in the 1980’s,  I started the Wrongful Dismissal Database so that the profession and the judiciary would have access to aggregate information that would give some guidance to determining reasonable notice and therefore over time would hopefully create more certainty over notice periods.

I suspect that lawyers use the WDD to find cases that support their position without showing the judge the full range of the report. This may result in the judge picking one extreme position over the other whereas the data would actually show that the average and or the mean of the cases would produce a less extreme result.

I would respectfully suggest that judges, on their own initiative , could ask counsel to produce a report such as the WDD in their submissions. I acknowledge that there may be other such programs but I admit to my personal bias. This would at least give the judiciary a broader and fairer picture of what comparable  cases have done in the past .

2. Importance of Age as a Bardal Factor: In this case  the Plaintiff was 56 but only employed for 2 years and 4 months. This is what the judge had to say on the relevance of the Plaintiff’s age.

In my view, it would be an error to make age the dominant consideration in arriving at a determination of reasonable notice in a case such as the present one. Such a reliance would create needless obstacles in the way of employees securing fresh employment at Mr. Iriotakis’ age and would be quite counterproductive in the long run. Age and the prospects of securing alternate employment are factors but these must be considered along with others and with a proper degree of balance. 

It seems the Judge was concerned that emphasizing age could have an adverse effect on the willingness of other employers to  hire other employees in the future. It does not seem that either parties led any evidence on this issue . What was in evidence is that no one questioned the plaintiff’s mitigation efforts and that it actually took him considerably more than the notice period to actually find a job. Perhaps age was a factor in that employers are often reluctant to hire older workers.

3. COVID Effect. The plaintiff was terminated in late March 2020 after the first COVID shutdown. This is what the judge said :

[19] I was asked to make findings about the job market and the possible impact of Covid-19 on Mr. Iriotakis. I have little doubt that the pandemic has had some influence upon Mr. Iriotakis’ job search and would have been reasonably expected to do so at the time his employment was terminated in late March 2020. However, it must also be borne in mind that the impact of the pandemic on the economy in general and on the job market, in particular, was highly speculative and uncertain both as to degree and to duration at the time Mr. Iriotakis’ employment was terminated. The principle of reasonable notice is not a guaranteed bridge to alternative employment in all cases however long it may take even if an assessment of the time reasonably anticipated to be necessary to secure alternative employment is a significant factor in its determination. I must be alert to the dangers of applying hindsight to the measuring of reasonable notice at the time when the decision was made to part ways with the plaintiff. 

Presumably this mean that if the termination had taken place later in the year when we all realized that COVID shutdowns were the new normal, that Justice Dunphy would have awarded a longer notice period. Will lawyers have to present evidence as to what people were thinking at the time of the termination a s to how long this COVID nightmare would continue ? How does even collect such evidence?

4. CERB : It is clear that CERB is not repayable to the government like EI is. Does the receipt  of CERB reduce the amount of wrongful dismissal damages ? This is what Dunphy J. said on this point :

[21] I agree with the defendant that CERB cannot be considered in precisely the same light as Employment Insurance benefits when it comes to calculating damages for wrongful dismissal. CERB was an ad hoc programme and neither employer nor employee can be said to have paid into the program or “earned” an entitlement over time beyond their general status as taxpayers of Canada. The level of benefit paid (approximately $2,000 per month) was considerably below the base salary previously earned by the plaintiff to say nothing of his lost commission income. On balance and on these facts, I am of the view that it would not be equitable to reduce Mr. Iriotakis’ entitlements to damages from his former employer by the amount of CERB given his limited entitlements from the employer post-termination relative to his actual pre-termination earnings. I decline to do so. ( emphasis in the original) 

Thus it seems that if the Plaintiff had made less money and thus the CERB would have been closer to his actual loss, this Judge may have reduced the damages in part because of the receipt of CERB.

Again, why make these unnessary distinctions that further complicate these cases? At what income level is CERB to be taken into account ? Will it vary from judge to Judge? Either it is or is not a deduction from the damage claim.

5. Commission over the Notice Period;

The plaintiff sold a service which produced monthly income, however in accordance with his commission agreement, commissions were only paid after the service had been provided for 8 months . So what happens to those commissions that would have been received within the notice period and what about those commissions that would have come in after the notice period?

The Commission Plan had the following language :

To qualify for any commission or bonus payment you must be actively employed by Peninsula Employment Services Ltd. Entitlement to qualify for any commission or bonus payment will cease immediately upon termination of your employment with Peninsula Employment Services Limited. 

Dunphy J.  determined that this clause was illegal as it violated the ESA.

[39] The plaintiff takes the position that to the extent the plaintiff’s contract of employment with the defendant purports to deprive him of commissions on sales made prior to the termination of his employment that are payable afterwards, such provisions are void as contrary to s. 1(1) and s. 11(1) of the ESA that require the payment of all “earned” “wages” and s. 5(1) of the ESA that prohibits contracting out of its minimum standards. In this regard, I agree with the plaintiff in part. 

He then determined that the Plaintiff was making a claim for three types of commissions :

A) Commissions that would have been paid to the Plaintiff had he been given reasonable working notice on sales he completed before termination.

B) Commissions that would have been paid to the Plaintiff after the reasonable working notice period  on sales he completed before termination.

C) Commissions he may have made on deals that he might have done had he been permitted to work out his notice period.

The Judge applied the simple principal of putting the Plaintiff in the same situation as if he had worked out his notice period . Therefore the results were as follows:

A) Plaintiff wins :

[41] While the Rules purport to exclude the payment of commission becoming payable during a common law notice period, such exclusion in my view violates s. 1(1), s. 5(1) and s. 11(1) of the ESA and is of no force or effect. 

[42] I have found that the plaintiff was entitled to reasonable notice of the termination of his employment and, in the absence of such notice, to damages in lieu of that notice. Had the plaintiff been given three months working notice – as he was entitled to receive – commissions on sales made by him between six and nine months prior to the termination of his employment would have been both earned and payable by the terms of the Rules whether or not he made a single incremental sale subject only to the passage of time and a determination of the actual payment history of the relevant clients during that period of working notice. Having deprived the employee of the notice to which he was entitled, the employer must put the employee in the same position – as far as money can do – as the employee would have been in at the end of the working notice he or she failed to receive: Paquette v. TeraGo Networks Inc., 2016 ONCA 618 (CanLII) at para. 16. The amount so determined is not commission under the Rules per se but damages calculated as the amount of money that the plaintiff would have received under the Rules but for the breach of contract by the employer. Had he been working as he was entitled to so, he would have been providing services to the employer and the exclusion in the Rules would have had no application. 

B) Plaintiff loses:

At the end of the notice period, the plaintiff had no right to be employed and no eligibility to receive commissions under the Rules that governed his ability to earn them. The commissions on prior sales were not fully earned while the plaintiff was still an employee because they remained contingent on the future payment history of each client pursuant to the Rules that created his entitlement in the first place. Such amounts do not fall within the definition of “wages” that have been “earned” under s. 1(1) and s. 11(1) of the ESA. The terms of the Rules are clear and unambiguous on this point. 

Crucial to his finding is that these commissions were not “earned ” until the 9 months was up. What if however, the agreement simply stated that commissions were not payable until 9 months after the transaction closed. Could not one say that the commission was “earned” once the deal was confirmed but payment was deferred until a later date. If the commission was earned but not yet payable, certainly that would constitute ” wages ” under the ESA and thus could never be forfeited, as this would be a contracting out of the EA, which is illegal .

C) Plaintiff loses :

[44] The same reasoning applies with greater force in the case of putative earnings during working notice not given. Had reasonable working notice been given, the plaintiff would have been entitled to his base salary and the portion of commissions on prior sales that became earned and payable during that notice period. Any new sales made would have generated no commissions earned during the period of his active service under the Rules that governed his entitlements. Whether he is assumed to have made new sales at, below or above the rate he was making them before his termination would have no impact on his earnings during that period. To the extent it is relevant, it is hard to imagine how he could have had much in the way of imputed sales during the three-month notice period at all events given that this time frame in fact coincided with the period of hardest pandemic lock-down. 

Conflict Note : Winning Plaintiff’s counsel was Kimberley Sebag , an associate at Lecker & Associates at which my brilliant son, Matthew Fisher, is a partner.