Constructive Dismissal

Anecdotal Review


OSC 2019 Unpaid Admin Suspension Not Allowed

This issue was considered in a 2019 decision of the Ontario court. 1 The employer placed the plaintiff on leave pending an investigation into a child death. The suspension was without pay. The plaintiff asserted that such conduct was a constructive dismissal. There was no contract in place which allowed for the right of administrative suspension. There was no attempt made by the employer to raise a legitimate business interest submission. In fact, the employer attempted unsuccessfully to argue that the letter of suspension was disciplinary and not administrative. The plaintiff’s case succeeded.

OSC 2016 Injunction to End Suspension Fails

The Ontario Superior Court considered and dismissed an application for interlocutory injunctive relief in the context of a workplace investigation and administrative suspension. 2

The plaintiff was a renowned pediatric surgeon dealing with congenital deformities. Issues had arisen with respect to his behaviour. The Hospital placed him on a paid administrative leave, pending the completion of its investigation.

The court applied the tests as set out above and concluded that the administrative suspension was fair. The employer acted to protect the functionality of a critical unit, the suspension was for a relatively short period, the conditions imposed were minimal and did not limit the plaintiff's clinical, research or teaching practice. There was no issue found as to the good faith component.

The application failed.

The court stated that the implied power to suspend was always a part of the employment relationship, which, respectfully stated, is an overstatement. The right of suspension is subject to the tests set out above.

N.S.C.A. 2023 Disciplinary Suspension not Justified

The plaintiff succeeded at trial and on appeal on the assertion that the employer's conduct in suspending the plaintiff on June 4, allegedly for disciplinary issues. He was instructed twice more within days, not to report to work and he would be recalled "if something came up". The truck used by the plaintiff was also repossessed. The suspension was for unpaid and for an indeterminate period.

The Court of Appeal agreed that the employer failed to justify this action, as is required. This court referenced the trial judge's decision as stated: 3

It is clear from these findings that Mr. Hiltz’s employment was suspended as of June 4, 2020 for alleged performance problems. Elmsdale did not call evidence at trial to establish justification for the suspension. Its evidence that Mr. Hiltz was laid off for lack of work was not accepted. It is obvious the trial judge found Elmsdale’s explanation to be a pretext, which was given in order to avoid potential liability for Mr. Hiltz’s claim:

  ... It was clear that Mr. Hiltz specifically was not to be recalled to work, even as work was available.  Taken together, I am satisfied the plaintiff has proven bad faith in its dismissal of Mr. Hiltz.