The Year in Review – 2023 Cases of Note


The Year in Review – 2023 Cases of Note

Date: January 4, 2024

We are back with our annual review of the prior year’s notable cases that we believe will be of interest to employers and human resources professionals. We also identify some cases to watch for in 2024.

Next week, we will bring you our review of notable 2023 legislative updates.

Cases of Note


Termination of Employment: Notice

  • Milwid v. IBM Canada Ltd. and Lynch v. Avaya Canada Corporation: The Court of Appeal for Ontario (ONCA) upheld two summary judgment motions awarding terminated employees reasonable notice periods of 27 and 30 months, respectively. The ONCA upheld the lower courts’ findings that exceptional circumstances existed to justify a notice period higher than 24 months. In both cases, the employees were over age 60, had over 35 years of service, had devoted their entire careers to their employers and had technical skills tailored specifically towards their employers’ particular businesses.
  • Manthadi v. ASCO Manufacturing: The Ontario Superior Court of Justice awarded an employee 12 months’ notice when her employment was terminated after five weeks’ service. The plaintiff had been previously employed by a company which sold its assets to a purchaser, and she accepted employment with the purchaser, which then terminated her employment. To arrive at an appropriate notice period, the Court applied the Bardal factors and weighed the experience the plaintiff, a long-time employee with the previous company, brought to the purchaser.

Termination of Employment: Just Cause

  • Park v. Costco Wholesale Canada Ltd.: The Ontario Superior Court of Justice held that an employee with 20 years of service, who deliberately deleted his employer’s website on two separate occasions, had engaged in wilful misconduct that was incompatible with the fundamental terms of the employment relationship, thereby justifying his termination from employment for just cause. (See our Case in Point Court Finds Employer Had Cause to Dismiss Employee After He Deleted Employer Website)
  • Shalagin v. Mercer Celgar Limited Partnership: The Court of Appeal for British Columbia upheld a lower court finding that an employer had just cause to terminate the employment of an employee who had secretly recorded meetings, training sessions and conversations with co-workers. The Court stated the employee’s recording activity “was underhanded and would be regarded by most employers as misconduct undermining the trust relationship between employer and employee.”

Enforceability of Contracts

  • Celestini v. Shoplogix Inc.: The ONCA applied the “changed substratum” doctrine to find that the terms of the employee’s written employment agreement were unenforceable at the time of his termination from employment. The ONCA held that although the employee’s job title had not changed, there had been “substantial and fundamental” changes to his role over the 12 years of his employment, including a substantially increased workload and responsibilities.


  • Monterosso v. Metro Freightliner Hamilton Inc.: The ONCA held that independent contractors performing services under fixed-term contracts have a duty to mitigate, subject to an agreement providing otherwise. It stated that the general rule requiring mitigation following the breach of a contract applies to independent contractors. There were no circumstances present in this case to justify a departure from that general rule.

Restrictive Covenants

  • EF Institute for Cultural Exchange Limited v. WorldStrides Canada, Inc.: The ONCA dismissed an appeal of a motion judge’s decision which found that a departed employee did not breach his duty of confidentiality or non-competition obligations. The employee had accepted a position with a competitor that was to commence the day following the expiry of the non-competition period. The ONCA did not find any error in the motion judge’s conclusion that the employee did not provide any sensitive information or advice to the prospective employer when he was interviewed during the non-competition period.

COVID-19-Related Cases


  • Besse v. Reach CPA Inc: The British Columbia Civil Resolution Tribunal found that an employee, a Chartered Professional Accountant, had engaged in time theft by improperly logging 50.76 hours that she did not work. The respondent employer had placed a time-tracking program called TimeCamp on the employee’s work laptop, and the information gathered from TimeCamp established the time theft. The employee was ordered to pay the employer $2,603.07 in debt and damages for time theft, as well as the outstanding part of the advance the employer made to the employee.

Occupational Health and Safety

Human Rights

  • Imperial Oil Limited v. Haseeb: A decision of the Human Rights Tribunal of Ontario (HRTO), which concluded that an employer discriminated against a potential employee on the basis of citizenship when it required proof of eligibility to work in Canada on a permanent basis as a condition of employment, was found reasonable by the ONCA.
  • British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd.: The Court of Appeal for British Columbia clarified the test for determining discrimination on the basis of family status, confirming there is no need for an employer to have changed the terms of employment to establish a case of family status discrimination.
  • Hall v. Zurn Industries Limited: The HRTO awarded an applicant lost wages for 5.5 years and $20,000 for injury to dignity, feelings and self-respect, among other things. In an earlier interim decision, the HRTO had concluded the respondent had discriminated against the applicant on the basis of age when it terminated her employment and placed a younger, lower-salaried worker into her position.
  • L.C.C. v. M.M.: An applicant was ordered to repay all funds paid to them under a settlement of their HRTO application, as a result of the applicant having posted on their LinkedIn profile that they had resolved their human rights complaint against their employer for sex discrimination. The HRTO found that the applicant had breached the confidentiality and non-disparagement clauses in the settlement agreement.


Class Actions


  • Hansman v. Neufeld: A majority of the Supreme Court of Canada restored a decision of an application judge dismissing a defamation claim filed by a school trustee against the former president of the B.C. Teachers’ Federation (BCTF) as a Strategic Lawsuit Against Public Participation (SLAPP). The school trustee had posted negative comments about materials to be used in schools to promote inclusive environments, among other things, regarding sexual orientation and gender identity. The former president of the BCTF, a gay man, publicly denounced these comments and accused the school trustee of undermining safety and inclusivity for transgender and other 2SLGBTQ+ students. The Supreme Court observed that the consistent defining feature of a SLAPP is that the proceeding acts to silence both the defendant and public debate on a matter of public interest, as opposed to remedying a serious wrong suffered by the plaintiff.
  • Boyer v. Callidus Capital Corporation: The ONCA upheld a decision of a motion judge and dismissed a counterclaim brought by the defendant employer against the plaintiff as a SLAPP. The plaintiff had alleged constructive dismissal due to a toxic work environment. The defendant counterclaimed, alleging the plaintiff breached his fiduciary duties during his employment and sought damages of $150 million. The ONCA held the counterclaim was a SLAPP as it arose from an expression on a matter of public interest. (See our Raising the Bar – Year-End Edition)

Labour Relations


Arbitrations: COVID-19

Arbitrations: National Day of Mourning

  • Ottawa Police Services Bd. v. Ottawa Police Assn.: A decision of Arbitrator Waddingham, which held that September 19, 2022 (the National Day of Mourning for the Queen’s funeral) was a paid holiday under the applicable collective agreements, was found unreasonable by the Ontario Divisional Court. The Court concluded that the approach taken by the Arbitrator was not in keeping with the applicable principles of collective agreement interpretation and jurisprudence. The grievances were dismissed. (See our Case in Point Appellate Court Finds National Day of Mourning Not a Paid Holiday Under Collective Agreements)
  • Malton Village of the Regional Municipality of Peel v. Canadian Union of Public Employees, Local 966: The question before Arbitrator McNamee was whether the federal government had “proclaimed” a holiday with respect to the National Day of Mourning for the Queen’s funeral. Arbitrator McNamee determined the government’s statement lacked the requisite formality of a proclamation. He stated: “[i]n effect, it is my view that the granting of a holiday to federal government employees was not an act of the federal government, qua government, but rather an action of the prime minister qua employer.”

Cases to Watch for in 2024

  • Elementary Teachers Federation of Ontario v. York Region District School Board: In October 2023, the Supreme Court of Canada heard an appeal from this ONCA decision which found that public school teachers have a section 8 Charter right to be free from unreasonable search and seizure and have a reasonable expectation of privacy in the workplace. The decision of the Supreme Court is pending.
  • Ontario English Catholic Teachers Assoc. v. His Majesty: In June 2023, the ONCA heard an appeal from this decision of the Ontario Superior Court of Justice which found that Bill 124, Protecting a Sustainable Public Sector for Future Generations Act, 2019, was unconstitutional. Bill 124 limited wage increases in the broader public sector to 1% per year for a three-year moderation period. The decision of the ONCA is pending.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©