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Employment - Condonement. McGuinty v. 1845035 Ontario Inc. (McGuinty Funeral Home)
In McGuinty v. 1845035 Ontario Inc. (McGuinty Funeral Home) (Ont CA, 2020) the Court of Appeal considered a constructive wrongful dismissal case, primarily on the issue of whether the employee condoned the employer's behaviour:[21] The caselaw governing constructive dismissal is not in dispute. It was set out by the Supreme Court in Potter, at paras. 37-43. In short, constructive dismissal can be established by either (i) the employer’s breach of an essential term of the employment contract or (ii) a course of conduct by the employer that establishes that it no longer intends to be bound by the employment contract.
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[24] It is well established that an employer’s conduct that would otherwise support a finding of constructive dismissal under the first or second branch of the Potter test may be condoned by the employee, such that the employee cannot claim to have been constructively dismissed. The employee has an election to make – whether to continue to work, and so accept the single breach/course of conduct, or to treat that breach/conduct as bringing the contract to an end and sue for constructive dismissal. A claim that the employee has condoned a breach or course of conduct is a defence to a claim of constructive dismissal and the burden is on the employer to establish it.
[25] The difficulty is that condonation must be inferred from circumstances in which an employee’s intentions may be unclear. As this court confirmed in Persaud v. Telus Corporation, 2017 ONCA 479, at paras 14-15, an employee must make his/her election within a “reasonable period of time”. Of course, reasonableness is not a rule but a standard, and it is a notoriously vague standard at that. Thus, whether an employee acts within a reasonable period of time is a fact-specific determination that must be made by the trial judge based on consideration of a number of factors, and the trial judge’s finding is entitled to deference.
[26] In the usual case, a finding of condonation occurs where an employee has continued to work or resumed work despite the employer’s actions. But continuing or resuming work is not determinative of condonation; employees must have a reasonable period of time to attempt to resolve workplace problems short of litigation: see Belton v. Liberty Insurance Co. of Canada (2004), 2004 CanLII 6668 (ON CA), 72 O.R. (3d) 81 (C.A.), at para. 26. Care must be taken before concluding that an employee has given up his or her right to sue for constructive dismissal, and employees’ unique personal circumstances must be taken into account. For example, an employee’s health, including his or her mental health, may be a relevant consideration in determining whether his or her conduct implies condonation. Given the wide variety of personal circumstances, it is not surprising to find cases in which employees have been found not to have condoned breaches or repudiation of their contracts of employment despite having continued to work even for relatively extended periods of time. Each case turns on its facts.
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[31] By any standard, the period of time taken by the respondent to make his election was lengthy. But while it may be reasonable to find that an employer’s burden to establish condonation is discharged where the employee has continued to work for a lengthy period of time despite the employer’s impugned conduct, it is more difficult to conclude that condonation has been established where the employee has been unable to work because of the very conduct that establishes the constructive dismissal.
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