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Employment - Illness. Nagpal v. IBM Canada Ltd.
In Nagpal v. IBM Canada Ltd. (Ont CA, 2021) the Court of Appeal considers the relationship between frustration of an employment contract and the employee's illness:[33] A contract is frustrated where, without default of either party, a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract: Duong v. Linmar Corp, 2010 ONSC 3159, 82 C.C.E.L. (3d) 84, at paras. 33-36, aff’d 2011 ONCA 38 and Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943 at 967-968.
[34] The determination of whether a temporary incapacity to work constitutes frustration is also contextual. Illness alone is not a frustrating event and one must look at the length of the illness in relation to the duration of the employment contract: Duong, at para. 35; Antonacci v. Great Atlantic & Pacific Company of Canada Ltd. (1998), 1998 CanLII 14734 (ON SC), 35 C.C.E.L. (2d) 1 (Ont. C.J.), at para. 37, aff’d 2000 CanLII 5496 (ON CA), 128 O.A.C. 236 (C.A.), at paras. 9-11.
[35] Evidence that relates to the post-termination nature and extent of an employee’s disability is permitted only if that evidence sheds light on the nature and extent of the employee’s disability at the time of the employee’s dismissal: Ciszkowski v. Canac Kitchens, 2015 ONSC 73, 20 C.C.E.L. (4th) 171, at para 156.
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