Constructive Dismissal Index
Unilateral Change, Toxic Workplaces, Repudiation, Suspension & Mitigation
This chapter examines constructive dismissal in Canadian employment law,
including unilateral changes to employment terms, abusive or toxic workplaces,
repudiation, condonation, temporary layoff, suspension, relocation and the
employee’s duty to mitigate.
The Leading Cases
The Supreme Court of Canada decisions establishing the modern principles of
constructive dismissal, together with the pre-Potter jurisprudence.
Applying the Constructive Dismissal Test
The central analysis under Potter: determining the contractual terms,
identifying a breach and assessing whether the change is sufficiently serious
that a reasonable employee would conclude the employer no longer intends to be bound.
Toxic & Abusive Workplaces
Constructive dismissal may arise not from a single contractual change but from
a course of abusive conduct that makes continued employment intolerable.
Duty to Provide Employment
Whether the employer has an express or implied obligation to provide active
employment, duties and meaningful work.
Repudiation, Termination & the Employee’s Response
The distinction between termination and repudiation can determine whether the
employee remains bound by a contractual termination provision. The employee’s
response to the employer’s conduct may therefore be critical.
Condonation of the Change
An employee who continues working after a fundamental change may be found to
have accepted or condoned it. Timing, protest and the nature of the breach all matter.
Temporary Layoff as Constructive Dismissal
A statutory right to impose a temporary layoff does not necessarily create a
corresponding common-law contractual right to do so.
Suspension & Constructive Dismissal
Administrative and disciplinary suspensions require separate analysis,
particularly where the employment contract does not expressly confer a right to suspend.
COVID Policies & Relocation
Constructive dismissal claims arising from workplace health policies,
unpaid leave and significant changes to the employee’s place of work.
Duty to Mitigate: Mifsud & Evans
Whether a constructively dismissed employee must remain in or return to the
altered employment relationship in order to satisfy the duty to mitigate.
Case Review, Demotion & Discipline
Fact-driven constructive dismissal decisions and the limits of any asserted
implied employer right to demote or discipline.
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