These cases are all fact driven. They are presented in date order, most recent first. The principled review is found here.

OSC Dec 2022

A constructive dismissal was found in an Ontario decision in December of 2022, based on an abusive work environment. The plaintiff had proven this test based on these factors: ¹

1. The employer failed to respond to complaints made by the plaintiff regarding offensive conduct which included verbal abuse and a physical strike to his testicles;
2. It failed to investigate the wrongdoer and/or discipline him and failed to separate this person from the plaintiff;
3. It wrongly blamed the plaintiff for a workplace accident and dissuaded him from filing a worker’s compensation claim;

The plaintiff succeeded in his claim.

Alta CA 2021

The Alberta Court of Appeal upheld the finding made a trial that the plaintiff had been constructively dismissed on two grounds. The first was a change made in the employment terms. The plaintiff was paid a commission for the sale of an IT managed services product. The removal of this product and a change in the commissions structure met this test, as viewed objectively. Secondly, the trial judge had found that the work environment had been shown to be toxic. ²

McLean v Dyncast OSC December 2019

A review was made of the responsibilities held by the plaintiff, before and after the revisions made to his job functions. ³ In essence, the plaintiff was assigned many responsibilities which had historically been performed by members of the bargaining unit. The plaintiff succeeded.

Robinson v Heinz OSC June 2018

The plaintiff’s responsibilities of Senior Manager, Accounting, were reduced by: ⁴

1. The permanent removal of all payroll-related functions and one direct report;
2. Removal of her title and all associated responsibilities as the ZBB lead for the company in Canada;
3. Required to report to a person of prior equivalent rank;
4. Plan announced to remove all accounts payable functions;
5. Advised that the company had no plans for her.

Both parts of the Potter test were met.

Matthews v Ocean Nutrition NSCA May  2018

The Supreme Court of Canada did not deal with the issue of constructive dismissal as this question had been conceded on the final appeal. It was, however, a live issue at trial and on first appeal. Matthews had asserted that the removal from his responsibilities of a particular task, known as the PCB reduction project, in itself, was conduct of constructive dismissal. This resulted in Matthews working only one to two hours a day. This left him as duties which were “non-core”, as found by the trial judge and allowed for the constructive dismissal finding. ⁵ The Court of Appeal saw no error and upheld the trial award.

Ontario Court of Appeal May 2017

The plaintiff had been a manager at a McDonald’s restaurant. She was instructed that she may either accept a demotion from manager to first assistant or be terminated. The benefits in the new position would have been “meaningfully inferior” and she would further be reporting to less experienced persons whom she had trained. The trial judge’s finding of a dismissal was upheld by the Court of Appeal. ⁶

OCA March 2017

The plaintiff claimed constructive dismissal based on an allegation that he had not been paid his proper bonus. The bonus plan stated:

Annual pro rata bonus available shall be 10% of pretax profit of GPMA and Darton less interest income and depreciation. Profit shall not include present level, if crystalized, of performance fees to GPMA on GPM/Endow (8) of $0.60MM.

In October of the relevant year, the plaintiff was advised a certain transaction was not to be included in the calculation of the bonus sum. This decision reduced the plaintiff’s bonus sum by $329,000. The employer had subsequently left open the possibility of including this sum, if other investors in this project would be willing to contribute. The plaintiff did not follow up on this idea as the other investors had no legal obligation to do so.

The details of this transaction, known as the Ellerslie lands were important. The property had been acquired prior to the plaintiff’s employment. It was the sole real estate investment held by the company. The company had elected not to pursue such investments in the future. This policy decision had not been communicated to the plaintiff. However, no other similar investments had been made, thus concluding that the plaintiff had no such future expectations.

The trial judge agreed that the employee was entitled to the correct bonus amount as claimed, but refused to see this a constructive dismissal. The trial decision saw this as a matter of a “disagreement over the interpretation of the application of Mr. Chapman’s bonus scheme”. This, the decision continued, was not a constructive dismissal as such a disagreement regarding a bonus calculation is not necessarily a constructive dismissal. He concluded that ““any reasonable person would conclude that the essential terms of the employment contract had not been changed, but in fact remained intact.” ⁷

The issue before the OCA was thus whether the trial judge could have found a breach of contract, entitling the plaintiff to the additional bonus sum, yet denied the argument of a fundamental breach.

The submission was made by the plaintiff that he was mandated to sue for his proper entitlement, a factor which should lead to the conclusion that a reasonable person in this context would see the employer as showing it was no longer bound.

In reply to this argument, the trial judge had found that the employee had other options such as arbitration or following up on the employer’s suggestion that other investors may agree to the same concept. The Court of Appeal agreed:

In my view, it was open to the trial judge to find that there were, on the facts of this case, dispute resolution alternatives that the appellant, a commercially sophisticated party, could have been expected to explore, and that a reasonable person in the appellant’s position would not have considered himself to have been constructively dismissed when the bonus on the sale of the Ellerslie lands was refused.

The Court of Appeal agreed that this dispute was a one off issue involving the interpretation of the agreement, one which would have no future impact. Oddly enough, the employer’s conduct in improperly denying the bonus sum was not seen as a fundamental breach:

Finally, the conclusion that the failure to pay the bonus in question did not constitute constructive dismissal, notwithstanding that non-payment was in breach of the appellant’s employment contract, was reasonably open to the trial judge after a proper analysis and application of the first branch of the Potter test.

OCA July 2016

The Ontario Superior Court found in that the plaintiff had been demoted from an operational role to a “far more administrative one”. Little regard was had to the fact that the plaintiff had fewer direct reports or reported to a person who had previously reported to her. ⁸

Nunavut Court of Appeal 2015

The trial judge’s denial of the constructive dismissal claim was upheld by the Court of Appeal. efn_note] trial level; Kucera v Qulliq Energy NCA; leave to appeal dismissed [/efn_note] The allegations made to support this claim were reviewed as follows:

1. Position downgraded from grade G to F. The allegation made that the new position was red circled was not proven. Plff was still eligible for salary increments.
2. Change in responsibilities. Modest change which was not eliminated but did spend less time on one specific aspect;
3. Plff alleged that she was not allowed to apply for position of Corporate Secretary; Not proven
4. Hostile work environment. Trial judge found a difficult relationship with her superior but there was times when relationship was supportive and friendly. Special leave given to facilitate her wedding and honeymoon, allowed attend more than one out of jurisdiction conference in her first year; allowed salary advance to offset moving costs.

OCA March 2012

A similar theme was evident in the decision Pollak J. in Chandran v National Bank. Chandran had been employed with the Bank in excess of 18 years when he was advised that he was to be given an amended job position based on an attitude survey taken by the employer which revealed unflattering remarks made by his subordinates accusing Chandran of conducting himself in a bullying manner and making inappropriate comments to those reporting to him. ⁹

A broad description of the issues was given to Chandran, which lacked specific details. The court determined Chandran was constructively dismissed, a finding which was  influenced by the actions taken by the Bank in making adverse conclusions of his conduct without his input:

Mr. Chandran testified   that he has lost all trust in the Bank to deal with him in a fair and professional manner.  I have already found that a reasonable person in similar circumstances would also lose trust and faith in his employer.  I find that the actions of the Bank in reaching such serious findings of misconduct, the imposition of discipline and the mandatory transfer to alternate positions (with lesser terms and conditions of employment) goes to the root of the employment contract and is a fundamental breach of the employment agreement, which constitutes a constructive dismissal.

OCA May 1999

The Court of Appeal upheld the trial judge’s finding of constructive dismissal based on revisions to the plaintiff’s responsibilities. In Schumacher v TD Bank, the trial judge found in favour of the plaintiff’s claim that he had been constructively dismissed, a decision which was upheld on appeal. The finding was based on revisions to the plaintiff’s job functions and his compensation. The reasons for this finding were as follows: ¹⁰

1. Two of the five products were removed;
2. Fixed income held the greatest potential for growth. Fixed income and derivatives were the two “prestigious products”, one of which was removed. Plff was left without any investment banking business;
3. The synergy arising from his leadership in the five areas was lost;
4. The concept of delivering services designed to address client needs was abandoned.
5. The hiring of Wright caused the roll back of the Navigator project which had been spearheaded by the plff.
6. The plff lost the ability to make broad recommendations affecting all five areas;
7. Plff’s objectives could no longer be met as he no longer had control or direction over important products and research.
8. Plff’s compensation was reduced by as high as 25% to 30% and at least 15%.