Ruel, Hamilton, Lavallée

Appeal from a judgment of the Superior Court dismissing an action in damages for breach of a contract of employment. Allowed.

According to the trial judge, the appellant was not a victim of a constructive dismissal but resigned in a free and informed manner. In addition to rejecting his allegations of psychological harassment, she found that the modifications of the appellant’s conditions of employment were not substantial and had not been adopted for the purpose of inducing him to resign.

The judge committed three reviewable errors. First, she erred in law by accepting that, to demonstrate his constructive dismissal, the appellant had to prove that the measures taken by his employer [translation] “were taken to force him to resign”. In so doing, she imposed a heavier burden on him than the one prescribed in Potter v. New Brunswick Legal Aid Services Commission (S.C. Can., 2015-03-06), 2015 SCC 10, SOQUIJ AZ-51156126, 2015EXP-830, 2015EXPT-425, J.E. 2015-438, D.T.E. 2015T-173, [2015] 1 S.C.R. 500, which consists of determining whether, “given the totality of the circumstances, a reasonable person in the employee’s situation would have concluded that the employer’s conduct evinced an intention no longer to be bound by it” (para. 63). Second, the judge relied on a partial analysis of the evidence. Indeed, she failed to take into consideration certain breaches of the contract of employment by the employer concerning remuneration and the performance of tasks by the complainant. These modifications were sufficiently serious to constitute constructive dismissal. Third, the other way to reach a conclusion of constructive dismissal according to Potter is to consider the cumulative effect of acts or decisions by the employer on a reasonable employee. In this regard, the judge essentially limited her analysis to the appellant’s allegations of psychological harassment. This is an error of law because the absence of psychological harassment does not necessarily lead to the conclusion that there is no constructive dismissal. In short, it was wrong to conclude that the appellant had resigned. It was a constructive dismissal. The Court will determine the notice of termination and the amounts due to the appellant according to his contract of employment.

Text of the decision: http://citoyens.soquij.qc.ca