The Facts
Grant McGuinty was a third-generation owner of McGuinty Funeral Homes in North Bay, Ontario. After working at the funeral home for over 30 years, Grant sold his share in the business in 2012 and agreed to remain on as a General Manager/Consultant under a 10-year employment contract with a non-compete clause.
The relationship between Grant and the new owner broke down shortly after the purchase. The employer forced Grant to track his time and verify it with a subordinate employee, the employer attempted to remove vehicle privileges and not pay commission, the employer changed the locks without notice or consultation, and the employer threatened to cease the plaintiff’s benefits coverage.
As a result of the employer’s conduct, Grant went on medical leave in September 2013 and refused to step down from his position. Grant was not able to return to work and eventually filed a Statement of Claim in September 2015 alleging that the conduct of the employer amounted to constructive dismissal.
The Decisions
At trial, the Honourable Justice Gordon found that Grant was constructively dismissed. The Court found that Grant treated the breakdown of the relationship between the two parties and the conduct of the employer as a repudiation of the employment contract. Grant did not condone the repudiation and did not raise the issue as he was on sick leave and unable to work for approximately two years.
The Ontario Court of Appeal upheld the decision and confirmed that a reasonable person would have concluded that the employer’s conduct demonstrated an intention to no longer be bound by the employment contract. Grant did not condone the employer’s actions and Grant’s sick leave time was also not considered condonation.
The Court of Appeal held that there was no basis to interfere with the trial judge’s decision and upheld the damages award of $1,274,173.83.
Final Thought
The conduct of the employer was ample evidence of repudiation and the employer was unable to show any evidence of Grant making or communicating his condonation. While the passage of time can often be evidence of condonation, it cannot be viewed in a vacuum. The time taken by Grant to elect not to condone must be understood in the context of his employment history and sick leave. Grant was effectively forced out of his family business and the funeral industry – the only career that he had ever known. This caused and contributed to his medical problems that kept him away from work for over 2 years. The evidence showed that Grant did not return to work, could not return to work, and did not condone the employer’s actions.
If you have any questions about the article, please contact Michael Furyk.
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