In Wilsher v Olympic Wholesale ( 2026 ONSC 3620) Justice Woodley awarded 19 months notice to a 55 year old Night Shift Supervisor with 17 years service.
Nothing special.
The Plaintiff was fired as he admitted for the many years as he had been a supervisor, he and all the night supervisors, had engaged in the practice of “topping up” ” time cards. If an employee worked through his or her lunch or break or is they completed their assigned work before the end of the shift, the supervisor would go into the time recording system and adjust the system to show they worked to the end of their shift, whcn in fact they had not.
The Judge found that this was not just cause for the following reasons;
- This had been a long standing and consistent practice among the entire night workforce.
- The plaintiff did not personally benefit from this practice.
- The Union contract guaranteed 40 hours a week for the peeople he was supervising.
However the Judge found that there were many factors about the investigation that warranted additional damages.
[129] In the present case, there is sufficient evidence that Olympic engaged in bad faith and unfair dealings when dismissing Willsher that would justify awarding an extended notice period to Willsher. This evidence, includes inter alia, the following:
- The “investigation” specifically targeted Willsher without any attempt to determine the nature and extent of the “topping up” practice.
- No other supervisors were interviewed about the “topping up” practice, nor were other supervisors’ edits of employees’ timesheets audited in the course of the “investigation” as, according to Peroff,[4] Olympic “was not required to prove the plaintiff’s case”.
- Willsher’s October 5, 2023 “interview”, conducted by Peroff and Sousa, closely resembled an interrogation and not an investigation or interview. The meeting was implemented without notice, without explanation, without due process, without representation and was conducted in a high-handed, one-sided and biased manner, intended to intimidate Willsher.
- Willsher’s replacement, Jacob Bailey, who assumed Willsher’s position as Night Shift Supervisor in October 2023, was terminated in December 2025 (immediately prior to trial) “for the same practice”[5] which supports a finding that Willsher’s termination was personal, directed, and intended to remove Willsher from the company, not to correct or prevent the “topping up” practice from continuing.
- The termination letter provided to Willsher on October 5, 2023, accused him of “fraudulent behaviour” and “theft of time”. Willsher’s ROE recorded “dismissal/suspension” and prevented him from obtain unemployment benefits. Further, Willsher was not provided with any references after 17 years of employment with Olympic and, as such, he was inhibited in his search for new employment and mitigating his losses.
[130] Despite attempts to secure new employment, Willsher has been unable to find a new job and has suffered embarrassment and humiliation at the hands of Olympic. In these circumstances, Willsher is entitled to damages in the form of an extended notice period extended to the date of release of this decision which equates to a further 14 months’ notice, for a total notice period of 33 months.
My Comments :
Most judges punish bad behaviour by employers by awarding either punitive or aggravated damages. However this Judge ruled that :
“the actions of Olympic in terminating the employment of Willsher do not rise to a level that would warrant punitive damages.”
The Judge made the same comment about aggravated damages.
Instead the Judge awarded an 14 month extension of the notice period, which given his salary of $62,000, amounted to an award of approximately $72,000.
So as far as I can see there are now at least 3 levels of employer misconduct that will bring about an award in excess of reasonable notice.
Bad = Extension of the notice period
Really Bad: Aggravated damages
Really Really Bad: Punitive Damages
Isn’t the law wonderful ?
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