Roden et al. v. Toronto Humane Society

• Jurisdiction: Ontario
• Judge: Laskin, Cronk and Gillese, JJ.A.
• Date: 01 April 2005
• Citation: (2005), 202 O.A.C. 351 (CA),2005 CanLII 33578,[2005] OJ No 3995 (QL),[2005] CarswellOnt 4479,46 CCEL (3d) 30,259 DLR (4th) 89,142 ACWS (3d) 441
• Court: Court of Appeal (Ontario)

Roden v. Humane Soc. (2005), 202 O.A.C. 351 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. SE.089

Diane Roden (plaintiff/appellant) v. The Toronto Humane Society

(defendant/respondent)

Karen Mottram (plaintiff/appellant) v. The Toronto Humane Society (defendant/respondent)

(C40519; C41024)

Indexed As: Roden et al. v. Toronto Humane Society

Ontario Court of Appeal

Laskin, Cronk and Gillese, JJ.A.

September 22, 2005.

Summary:

The plaintiffs were employed by the Toronto Humane Society. After they repeatedly refused to implement the Society's policies in respect of accepting stray animals, their employment with the Society was terminated. The plaintiffs sued the Society for damages for wrongful dismissal.

The Ontario Superior Court, in a decision reported [2003] O.T.C. 639, dismissed the actions. The plaintiffs appealed.

The Ontario Court of Appeal dismissed the appeals.

Master and Servant - Topic 1176

Contract of hiring (employment contract) - Express terms - Without cause provision - A "without cause" provision in two employment contracts provided that "Otherwise, the Employer may terminate the Employee's employment at any other time, without cause, upon providing the Employee with the minimum amount of advance notice or payment in lieu thereof as required by the applicable employment standards legislation." - The Ontario Court of Appeal held that this clause, which referentially incorporated the minimum notice period set out in the Employment Standards Act, was valid - See paragraphs 55 to 67.

Master and Servant - Topic 2261

Breach of contract - Repudiation by employer or employee - General - The Ontario Court of Appeal stated that "... there is a crucial distinction between dismissal for misconduct and termination for repudiation. When an employer claims to have dismissed an employee for cause based on serious misconduct, the employer must point to conduct that took place prior to dismissal. It is then for the courts to determine whether the conduct was sufficiently serious so as to constitute cause. Repudiation, on the other hand, takes place when an employee refuses to perform an essential part of his or her job duties in the future. In such a situation, the employer is entitled to accept the repudiation and treat the employment relationship as terminated because the parties no longer agree on the fundamental terms of the contract." - See paragraph 46.

Master and Servant - Topic 2264

Breach of contract - Repudiation by employer or employee - What constitutes repudiation - The plaintiffs, employees of the Toronto Humane Society, were terminated when they refused to implement the Society's policies in respect of accepting stray animals - The plaintiffs sued, alleging wrongful dismissal - The trial judge dismissed the actions, holding that the plaintiffs were guilty of serious and wilful misconduct justifying dismissal for cause - The plaintiffs appealed - The Ontario Court of Appeal dismissed the appeals - The court held, however, that this case was governed by the principles of repudiation of employment contracts, rather than the principles relating to situations of misconduct - Here, the plaintiffs' employment was not terminated because of any prior conduct on their parts, but rather the termination occurred because the plaintiffs refused to carry out assigned duties in the future without reasonable excuse which amounted to a repudiation of their employment contracts - Therefore the Society had the right to accept the plaintiffs' repudiations of their employment and to treat the contracts as terminated - Since it was the plaintiffs who effectively caused the employment relationship to come to an end, they were not entitled to damages for wrongful dismissal - See paragraphs 1 to 53.

Master and Servant - Topic 7553

Dismissal of employees - Grounds - Misconduct or misconduct of business - [See Master and Servant - Topic 2261 ].

Master and Servant - Topic 7566

Dismissal of employees - Grounds - Repudiation of contract of employment - [See Master and Servant - Topic 2261 and Master and Servant - Topic 2264 ].

Cases Noticed:

Housen v. Nickolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577, refd to. [para. 35].

Dowling v. Workplace Safety and Insurance Board (2004), 192 O.A.C. 126; 246 D.L.R.(4th) 65 (C.A.), refd to. [para. 42].

Sparkes v. Enterprise Newfoundland and Labrador Corp. (1998), 167 Nfld. & P.E.I.R. 218; 513 A.P.R. 218 (Nfld. C.A.), refd to. [para. 42].

Cowichan School District No. 65 v. Peterson (1988), 22 B.C.L.R.(2d) 98 (C.A.), refd to. [para. 42].

Middlekoop et al. v. Canada Safeway Ltd. (2000), 148 Man.R.(2d) 30; 224 W.A.C. 30 (C.A.), refd to. [para. 42].

Pombert v. Brunswick Mining and Smelting Corporation Limited (1987), 84 N.B.R.(2d) 296; 214 A.P.R. 296 (C.A.), refd to. [para. 42].

Sandercock v. Nabors Drilling Ltd. (2001), 287 A.R. 381 (Q.B.), refd to. [para. 43].

Stevens v. HSBC Capel (James) Canada Inc. et al. (1998), 57 O.T.C. 161 (Gen. Div.), refd to. [para. 43].

Prest v. Ottawa Roman Catholic Separate School Board (1980), 29 O.R.(2d) 678 (H.C.), affd. (1981), 128 D.L.R.(3d) 384 (Ont. C.A.), refd to. [para. 43].

Gould v. Hermes Electronics Ltd. (1978), 34 N.S.R.(2d) 321; 59 A.P.R. 321 (T.D.), refd to. [para. 43].

McKinley v. BC Tel et al., [2001] 2 S.C.R. 161; 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161, refd to. [para. 44].

Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200; 91 D.L.R.(4th) 491, refd to. [para. 60].

Statutes Noticed:

Employment Standards Act, S.O. 2000, c. 41, sect. 13(3) [para. 65]; sect. 61(1) [para. 56].

Authors and Works Noticed:

Levitt, Howard A., The Law of Dismissal in Canada (3rd Ed. 2003) (2004 Looseleaf), p. 12-11 [para. 41].

Counsel:

Hedy L. Epstein, for the appellants;

Pellegrino Capone, for the respondent.

This appeal was heard on April 1, 2005, before Laskin, Cronk and Gillese, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Gillese, J.A., on September 22, 2005.