Friday, January 29, 2016

Police Suspension With Pay: A Middle Ground

There is significant controversy right now about Ontario's Police Services Act, regarding the suspension of officers, with pay, when they are subject to disciplinary proceedings or criminal charges.

Because of the time involved in these proceedings, it's a reality which can legitimately be infuriating - in hindsight:  These processes can take multiple years, and then at the end, if it is determined that the police officer did indeed engage in serious misconduct, we scratch our heads and ask "So why did we pay him to stay home for the last x years?"

I would urge moderation.  At the outset of any process, we don't necessarily know how it will resolve.  And suspensions without pay can also render significant injustice.

The Private Sector Analogy

The closest private sector analogy to this issue would be discharge grievances in unionized environments.

If I'm a unionized employer, and I believe that an employee is guilty of significant misconduct, I might go ahead and discharge him.  His union may grieve, and eventually send the matter to arbitration.

In the mean time, the individual is out of the workplace, and not being paid.

At the end of the arbitration, the arbitrator is called upon to determine if the discharge was an appropriate action.  If the employer fails to prove the misconduct, then the employee will usually be reinstated with full back pay.

When the employee has been off work for two years, that's a large amount of money.  But on the flip side, that's two years without a steady income to provide for one's family - that's a lot of hardship for the employee and his family, on unproven allegations.

There's a secondary question, too.  Even if the employer proves misconduct, then the question becomes whether or not it was serious enough to justify discharge.  In many cases, an arbitrator will substitute a different penalty - for instance, reinstating the employee, but substituting an unpaid suspension for a period of time - often significantly less than the amount of time the employee was actually off, meaning that the employee is still entitled to significant back pay.

This model has its advantages, certainly, but it isn't perfect, and sometimes puts employees to very substantial hardship because of false or trivial allegations of misconduct.

Putting the Punishment Before the Process

We need to bear in mind that not every case is clear cut.  In some cases, it isn't clear that there was misconduct.  In others, it isn't clear that the misconduct will warrant the discharge of the officer.  Recall the discharged police officer who last year made the news because he sent a mocking letter thanking the police chief for his three year paid vacation?

His misconduct was at the margins:  He sent 'confidential' information about a person in custody to a mutual friend, for seemingly good intentions.  It was information that had the potential to interfere with an ongoing investigation, but ultimately there was no impact from the disclosure, and the officer took full responsibility for the action from the outset.  This was certainly a close case, and in the private sector I suspect that the conclusion would have been that a discharge was not warranted.

So consider where we stood at the outset of that 3 year process?  We know it's going to be a long time; we don't know how it will turn out; it's entirely plausible that he will receive a slap on the wrist or a short suspension, and be put back on the job.  Is it fair to impose 3 years of financial hardship on him before that process has run its course?

No.  That seems straightforward.  Punishing somebody in such a way, before it is found that they deserve it, is deeply unfair.

The Middle Ground

Either extreme, in my view, is likely to render injustice on a frequent basis.  On the one hand, suspensions with pay allow officers guilty of severe misconduct to continue drawing a salary so long as they can drag out the legal processes.  On the other hand, suspensions without pay have the potential to put innocent officers into dire financial situations.

My suggestion would be that the Police Services Act create an expeditious process for interim remedies:  If the Police Services Board is confident that the officer will be found guilty of conduct deserving of discharge, then it can go to an adjudicator for an order authorizing a suspension without pay until the disciplinary/criminal proceedings are complete.

The specific onus could be the subject of discussion:  I would propose a threshold of a 'strong prima facie case' for discharge - i.e. that the evidence is very strong that the misconduct occurred, and that the misconduct clearly calls for discharge.

This way, in the clearest cases, wrongdoers can be denied of this lengthy paid vacation...but in the less clear cases, we continue to give the accused the benefit of the doubt.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

Tuesday, January 26, 2016

The "Suitability" Test: Wrongful Dismissal from Probationary Employment

Many employers insist on a period of 'probation' in their employment contracts.

Sometimes it's clear on the face of the contract what that means - usually, that the employee can be dismissed without notice and without cause during the probation period.  Sometimes, it's less clear, with a verbal or written reference to a 'probation' period of a particular length of time.

The case law, in the non-union context, has tended toward a fact-based interpretation of the word 'probation'.  In a 2001 case, Easton, Justice Lederman concluded that the 'probationary' language in the contract suggested only that a raise at the end of the probationary period was contingent on satisfactory performance - and did not manifest in a right to terminate summarily without cause.  Thus, employment lawyers such as myself have encouraged employers to include very clear contractual language about what probation means.

Even probationary language, however, doesn't give the employer to dismiss, carte blanche, without any reason.  The courts have also consistently held that probationary employees are entitled to good faith evaluation of their work - that the employer cannot use a probationary clause to terminate for reasons unrelated to performance or fit in the workplace.  In practice, it turns into something of a "just cause lite" analysis.

Yesterday, the Divisional Court released its decision in Nagribianko v. Select Wine Merchants Ltd., a case where an employee was dismissed without notice toward the end of a six month probation period.

The Trial Decision

Nagribianko sued in Small Claims Court.  The Deputy Judge accepted that the meaning of the word 'probation' was not defined within the employment contract.  (It was defined in the employee handbook, but the evidence was that the handbook was not provided at the time the contract was signed, and thus not effectively incorporated into the contract.)

Accordingly, the Deputy Judge awarded four months' pay in lieu of notice.

The Appeal

The employer argued, and the Divisional Court accepted, that the word 'probation' has an established meaning in law, and that probationary employment can be terminated in accordance with the "suitability test" - a good faith analysis of whether or not the employee is suitable to the workplace.  This meaning existed without requiring a reference to the employee handbook.

As the employer had engaged in such a good faith analysis, the Divisional Court allowed the appeal and dismissed the action.


The "suitability test", per se, arises from the unionized labour law context:  In cases of discharged probationary employees in union contexts, that is a very frequently applied test.

And there's no question that, where an employment contract purports to give the employer a right to dismiss probationary employees without notice, the courts will apply a similar test.

But there's a danger in directly importing labour (unionized) principles into employment (non-unionized) contexts:  In the union context, these matters are governed by collective agreements, with specific and detailed language, often derived from certain boilerplates.  And collective agreements will include language, even on a near-universal basis, which are not always present (or sometimes very seldom present) in a non-union employment contract.

So caution must be exercised when importing such labour principles, deriving from a collective agreement, into employment contexts, where the contract may well set out markedly different terms.  Thus, a term may have been consistently defined in a way in the labour law regime, but that does not result in a conclusion that the term has a settled definition at law in a broader way.

In particular, the question here is one that basically never arises in the labour context:  Does the contract effectively give the employer a right to terminate summarily without just cause?  If it does, then something akin to the suitability test would certainly be applicable.  But the Deputy Judge concluded that the language - which is different from that found in collective agreements - did not create such a right.

And there's a more fundamental problem with the Divisional Court's analysis, in the context of the facts described in the case:  A six-month probationary period, allowing termination without notice on the basis of the "suitability test", cannot withstand scrutiny under the Employment Standards Act.

ESA Entitlements

Under the ESA, most employees are entitled to at least one week notice of termination or termination pay, if they've worked for the employer for a period from 3 months to 12 months.  There are a number of exemptions, including for an employee who "has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer."

It's a high test - generally even harder to satisfy than the common law test for 'just cause'.

Thus, dismissing an employee with nearly six months of service, on the basis of the suitability test could absolutely not disentitle an employee to statutory notice or termination pay, and any probationary language that purports to do so, expressly or impliedly, would be void.

It would be impracticable, and inconsistent with well-established legal principles, to interpret vague probationary language as automatically excluding common law 'reasonable notice' but not statutory notice or termination pay.  Thus, a good employment contract with a longer-than-3-month probation period will typically have ESA saving language, specifying that the meaning of the probation language is to allow termination on provision of ESA minimums only.  (In fact, the employee handbook in this case had such language, but the Divisional Court did not disturb the finding that this was not integrated into the contract.)  Whereas a non-extendable probation period of less than 3 months might not have the same issue, defining itself as permitting termination without any notice whatsoever.


The clear articulation of the suitability test is useful, in general terms.  This is consistent with the long history of judicial findings that a probationary termination isn't completely beyond judicial scrutiny.

But the ESA issue does not appear to have been considered by the Divisional Court.  In order for this result to be consistent with the ESA, one would have to read the mere word 'probation' as integrating a right to terminate, subject to the suitability test, upon the minimum notice set forth in the Employment Standards Act.  I do not take the Divisional Court as actually proposing this, nor would it be likely to stand as a proposition of law if it did.

One Last Headscratcher

This is something that's slightly perplexed me about the 'probation' doctrine for a long time:  Since probation can't reduce an employee's entitlements to less than the minimum entitlement under the ESA, and a probation clause can't be triggered for straight economic reasons or otherwise arbitrarily...what's the point of probationary language?

An employer who dismisses a 'probationary' employee is going to be called upon to prove that it gave the employee a meaningful opportunity to establish suitability, and considered the employee's suitability in good faith.

By contrast, an employer who relies on an ESA-minimum termination clause (when enforceable) is not called upon to justify the termination in any manner whatsoever (except to the extent, perhaps, of excluding illegal reasons for termination).  If that's within the first three months, the employee is entitled to nothing.  If it's after the first three months, entitlements remain quite nominal.

The only advantage I can see to the probation language is that it's less likely to be disregarded by the courts.  But, even then, many of the problems that exist with termination clauses also arise for probationary language.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

Thursday, January 21, 2016

Antunes v. Limen Structures Ltd.: Court of Appeal Lifts Stay

You may recall the exciting case of Antunes v. Limen Structures Ltd. from a few months back, where a five-month employee received 8 months pay in lieu of notice (over $105,000), plus an additional half million dollars in damages, and costs and interest totalling over $40,000.

Limen filed a notice of appeal in respect of the additional half million, but did not initially appeal the other aspects of the judgment.  Filing the notice of appeal has the impact of generating an automatic 'stay' of the judgment, preventing the plaintiff from trying to enforce the judgment until the appeal has run its course.  This applies, by default, to the whole judgment - even the $145,000 of the judgment debt not being appealed.

Antunes brought a motion to lift the stay, in relation to all but the half million dollar award, to allow him to collect the uncontested part of the judgment.  Limen's response was to file a supplementary notice of appeal, appealing the rest, too.

The stay is rather concerning to Antunes, because Limen claims to be insolvent - and as time passes, recovery of the debt will likely become increasingly difficult.  Antunes continued the motion, arguing that the Court of Appeal should exercise its discretion to lift the stay, because the supplementary notice of appeal was a tenuous appeal solely for the purpose of delaying payment.

The Court recognized Limen's claim to be unability to pay the judgment, but appeared to doubt the bona fides of that claim:
The appellant has managed its affairs in such a way as to minimize its exposure to Mr. Antunes.  I accept that businesses can find themselves in financial difficulty for many reasons having nothing to do with the wrongful dismissal claim of a former employee.  But I take into account the "scorched earth" trial and appeal tactics taken by the appellant.
Limen contended that, if it paid the judgment and then won on the appeal, Antunes likely wouldn't be able to repay the employer.  Antunes' response was that he would be satisfied to have the funds held by his lawyer in trust pending disposition of the appeal - a fair resolution to concerns of uncertainty.

The Court lifted the stay, and didn't order any such trust:  The appeal itself (as it related to the wrongful dismissal) was weak on its face, and Antunes' financial hardship made it desirable for the Court to exercise its discretion.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

Friday, January 15, 2016

Summary Judgment and Creative Solutions

One of the consequences of the Supreme Court's decision in Hryniak is that, even beyond the significant expansion of the availability of summary judgment generally, the courts are allowed to exercise their discretion in designing fair and expeditious processes to determine issues that may not be otherwise amenable to summary judgment.

In the case of Bevilacqua v. Gracious Living Corporation, Justice Dunphy felt it necessary to craft such a process.

The Facts

Mr. Bevilacqua worked for Gracious Living for about 16 years, but was given a lay-off notice in September 2014.  Bevilacqua commenced litigation in October 2014, apparently claiming constructive dismissal.  This is a topic I've touched on several times:  Suffice it to say that, despite one outlier case decided in 2014, my view is that the current law in Ontario continues to be that a temporary layoff, in the absence of a contractual right upon the employer to do so, constitutes a constructive dismissal.

Gracious Living, shortly after receiving the claim, offered Bevilacqua his job back, on the same terms and conditions before.  Sound familiar?  Perhaps because it sounds much like the case of Mr. Chevalier, who ultimately had to pay a very substantial costs award to his former employer because he turned down the job under similar circumstances and continued to sue for wrongful dismissal.

Bevilacqua turned down the job, and he claims that it was a bad faith offer - that they had put him on 'temporary layoff' as a way of trying to get him out permanently, and the offer to return him to his job was not made in good faith.

That appears to be the only major factual issue in contention, though.

Justice Dunphy's Decision

Justice Dunphy concluded that, because of the narrowness of the issues that might benefit from viva voce evidence, it was appropriate to fashion a summary manner of dealing with the case.
Whether it be characterized as a motion for summary judgment with some viva voce evidence, a "mini-trial", or a modified hearing under Rule 76, I have the jurisdiction necessary to order a common-sense procedure for resolving these issues that satisfies the overriding principles of justice, proportionality, and access to justice.
The process is expedited, but specific and detailed, with a fixed timeline.  In the hearing, witness testimony time is to be quite limited.  Before the hearing, of the other witnesses, out-of-court cross-examinations can be conducted beforehand.  (As a Rule 76 motion, this is interesting:  The default is that no cross-examinations on affidavits is permissible in a Rule 76 motion.  That sometimes creates a tension with the new summary judgment rules.)

Rather than requiring a "full factum", Justice Dunphy called for concise written argument directed at the four core issues in dispute.

Justice Dunphy was particularly firm on one point:  "This hearing will NOT exceed one day."


There's certainly value in Justice Dunphy's approach:  It will achieve a result expeditiously, while giving the court a reasonable opportunity to hear directly from the critical witnesses.

Still, since the release of Hryniak, I have seen plenty of summary judgment decisions (including my own) with more significant factual disputes than what appear to be the case here.

So what's the principled distinction to be made here?  In what cases will a factual dispute require a process of this nature, versus being decided by way of a normal summary judgment motion?


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.

Friday, January 8, 2016

Employees Drinking at Lunch

Hat tip to Professor Doorey for finding this interesting case.

Last week, Justice Nightingale decided the case of Volchoff v. Wright Auto Sales Inc., a wrongful dismissal case by a car sales manager, who was dismissed allegedly for cause.

Just cause is a high threshold, and it's relatively rare to see dismissals for cause.  It's even rarer to see the 'just cause' defence succeed at trial.  This is not one of those cases.

The allegation against Mr. Volchoff was that he attended at work while under the influence of alcohol, including driving company vehicles.  However, at trial, the employer's evidence was pretty thin, establishing only that, on one or two occasions, he had the smell of alcohol on his breath.  Mr. Volchoff readily admitted to having the occasional glass of wine at lunch at a local restaurant, usually before Manager's Meetings on Wednesdays.  (The employer held two meetings with Volchoff about that, and there's a dispute as to what happened in them.  Volchoff insists that there was no mention of a 'zero tolerance policy' at the first meeting, and that no other issues were raised despite him continuing to have his lunchtime wine before the weekly management meetings, and that the zero tolerance policy was first mentioned at the second meeting, following which Volchoff's evidence is that he stopped drinking wine at lunch.)

There were later and more serious allegations, arising in June 2014, including that he drove the employer's vehicles while impaired, but the evidence in support of these claims was extremely vague and non-specific - little in the way of times and dates when he was allegedly impaired, little in the way of evidence of actual impairedness (as opposed to evidence that his cheeks were red, for instance, which didn't trouble the judge in light of observing that Volchoff "displayed a natural rosy cheek complexion").  Some of the employees who expressed concern testified that they had raised their concerns many months before the issues in question arose in the first place.

Only one witness' evidence had any real specifics capable of sustaining the more serious allegations:  One Mr. Knaud testified that, after Volchoff returned from Manager's Meetings, he observed Volchoff to "have rosy cheeks, glazed eyes, slurred speech and the smell of alcohol", including while dealing with customers.  However, the plaintiff's counsel successfully challenged this evidence on cross-examination, and his credibility was further damaged by testimony that the judge characterized as "intentionally vague and not truthful", claiming not to recall anything pertaining to another complaint he made about Volchoff in June 2014:  He (and other employees) had objected to changes Volchoff had made in how internet-generated leads were treated

The employer claimed to have a 'zero-tolerance' policy for alcohol during working hours.  This would be reasonable for such an employer, but Mr. Volchoff claimed that this policy was never brought to his attention, even after he advised the employer that he occasionally had wine at lunch.

The judge believed Volchoff's evidence on the point.

If the employer had a zero-tolerance policy, it was never formalized and not brought to Volchoff's attention, and in any event there was no trail of progressive discipline, nor sufficient evidence that Volchoff was expressly advised that his employment was in jeopardy.  (The employer's evidence, again, included some evidence that he was told at the first meeting that there would be 'repercussions' if he continued to drink during working hours; however, the evidence was not corroborated by other employer witnesses who were present.)  There was no evidence to substantiate the more serious allegations against Volchoff, and no evidence that he was drinking during working hours when he had been told not to.

Thus, the just cause defence failed, and Volchoff was entitled to damages for pay in lieu of reasonable notice.

The Suspension Obiter

Justice Nightingale made reference to an investigative suspension, and highlighted the absence of other progressive discipline.
He was placed on a suspension with pay for one week pending investigation of his conduct.  An imposition of continued discipline including a further suspension, with or without pay, for a reasonable period of time, including a specific warning that any further violation would result in his termination, would have been appropriate to bring home to Mr. Volchoff his employer’s serious concerns, if it had them, with his conduct and make him realize his job was now in jeopardy if he continued. Progressive discipline, short of termination of employment, was clearly more appropriate in this case.
Professor Doorey, in his blog entry on the subject, finds this commentary to be very strange, for two reasons.  Firstly, there's no suggestion in the description of the evidence that there was a contractual basis for a disciplinary unpaid suspension, and it's fairly widely accepted that, in the absence of a contractual entitlement to do so, an unpaid suspension constitutes a constructive dismissal, unless the misconduct rises to the level of just cause for termination anyways.  (See Justice Echlin's decision in Carscallen v. FRI.)

Secondly, Justice Nightingale seems to conclude that the employee didn't actually do anything wrong:  There was no evidence to establish that he ever attended at work in a state that rendered him unable to properly carry out his duties; the evidence Justice Nightingale accepted led to the conclusion that he never violated employer directions; etc.  So why would a suspension have been appropriate?

To be charitable to Justice Nightingale, I read this less as a finding that a suspension "would have been appropriate", and more of a suggestion - made in slightly too specific terms - that, "if" the employer "had serious concerns", it had other options to drive them home with the employee before leaping to termination.  Which is fair, but for the 'constructive dismissal' issue from Carscallen, which would likely have made an unpaid suspension unavailable to the employer.  That being said, while there's no express reference to a contractual right to suspend, there's also nothing in the decision or described evidence that would foreclose such a possibility:  Thus, it would be very hard to read this obiter as conflicting with Carscallen in any serious way.

Contractual Integration of Policies

All things considered, particularly given Justice Nightingale's findings of fact, the result seems pretty straightforward, but there are two elements of the analysis which I find slightly troubling.

Firstly, Justice Nightingale was clearly looking for integration of the "zero tolerance policy" into the employment contract itself.
I am not satisfied that the zero-tolerance policy of the Defendant, whatever it was, was a term of the employment contract between the Plaintiff and the Defendant when he was first hired or, because of the lack of consideration, became one after he was hired.
This conflates the applicable legal principles.  Yes, contractual rights must be agreed upon by the parties, with consideration.  But the right to set a zero-tolerance policy may well be within an employer's implied contractual rights.

In any employment contract, the employer retains certain management rights.  An employee's duties of loyalty and fidelity require an employee to comply with management directions, generally.  (Of course, this isn't without exception.  If I tell my employees to do something illegal, they'll be entitled and obligated to refuse.  If I set a requirement that I am prohibited by statute from requiring, then that will likewise be unenforceable.  If I issue an order that conflicts - either expressly or impliedly - with the employee's existing contractual rights, then this may constitute a constructive dismissal.)

Many employment contracts do expressly integrate a policy manual or employee handbook, and reserve upon management the right to modify the policies from time to time.  This is probably not necessary (generally speaking) in order for management to have the right to set such policies, within reasonable limits, on a unilateral basis and without obtaining contractually binding assent of the employees.

IF the employer told Mr. Volchoff that he was not permitted to have any alcohol in his system while working, and Mr. Volchoff then continued to return to work after drinking wine at lunch, then the analysis doesn't stop with "It wasn't integrated into his contract."  Go on to "Did the employer have the contractual right to require this of Mr. Volchoff?"  The answer to that is probably 'yes'.  (Would they have the right to say "Don't drink cranberry juice at lunch"?  Likely not.  But setting reasonable requirements for the state in which Volchoff must be upon his return to work is very likely justifiable.)  Next, we would go on to determine whether or not the conduct rises to the level of just cause:  If there were reliable evidence of significant impairedness, and/or damage or injury from a collision, then there might be a worthwhile argument for cause.  But formal breaches of the zero-tolerance policy, in the sense of showing up to work with a low BAC from a glass of wine at lunch, would almost certainly require progressive discipline.

Of course, Justice Nightingale did not find that Volchoff continued to drink after being told not to, so this whole analysis is entirely hypothetical.

What is or isn't Discipline?

I am also slightly troubled by the phrase "continued discipline", in the suspension obiter remarks, which implies that the investigative suspension was disciplinary in nature.  This is an important distinction.  It is common, particularly in larger organizations, for the subject of serious allegations of misconduct to be suspended, with pay, pending the results of the investigation.  This is not disciplinary, and should not be regarded as so.  It does not imply any finding of fault, and is not intended to be punitive or corrective in any way.

Disciplinary suspensions, where they are appropriate, are different in nature.

There's also room to discuss 'early stage' discipline:  Let's suppose that I have a policy against swearing in the workplace, but I've never informed you of it or enforced it, and a culture of swearing has developed - which I have condoned.  I can't simply tally up all your swears for several months, say nothing to you about it, and then fire you one day because of the cumulative impact of them.  Rather, I need to start the ball rolling of 'progressive discipline'.

Yet my condonation of the act, and your lack of awareness of the policy, means that, in any objective sense, you're not doing anything 'wrong' at all.  So how can I discipline you for something that isn't wrong?

The initial stage is going to have to be an informal (but still clearly documented) caution:  We might argue about whether or not it's properly characterized as discipline.  I define discipline as being corrective in nature:  Bringing to your attention my expectations, and the way in which I expect you to modify your behaviour moving forward, is certainly discipline.  If you regard discipline as fundamentally punitive, then you might take a different philosophy.  (Simply, I don't regard a punitive model of discipline as being appropriate in an employment relations context.)

Employer Practices

I'm prepared to give the employer the benefit of the doubt in terms of how this termination came about.  It certainly sounds like some of the complaining employees had an axe to grind with Volchoff, but their complaints left the employer with the good faith impression that Volchoff had a long-standing and continuing drinking problem.  In light of the safety-sensitive nature of some of his work, it's difficult to ignore that impression, even if you can't prove it - particularly when Volchoff himself admitted to a little bit of drinking.  (It's widely viewed that people underestimate their own alcohol consumption.)

So they dismissed him.  And then he sued, and they wanted to allege cause, and their lawyer explained to them what would be necessary to prove cause, such as - likely - evidence of progressive discipline and clear indication that his continued employment was in jeopardy if he continued to drink.  The evidence of one of the people in a meeting that she's sure she told Volchoff that there would be "repercussions" sounds like the classic case of an employer looking to fit the contents of the meeting to the 'form' of a case for just cause, on an ex post facto basis.

But, even on this generous assessment, I don't have much sympathy for the employer.  For two reasons:  Firstly, they botched the process significantly.  If they actually had a zero-tolerance policy, they failed to properly implement it.  If they actually told Volchoff not to drink, period, then they should have maintained better written records of that direction.  If they actually cautioned Volchoff that his employment was in jeopardy, again, they should have done so clearly and in writing.

There's a way to go about these things.

And with the judge characterizing the defence evidence as being largely vague and unspecific, it almost sounds like the defence strategy was to paint the plaintiff as a lush - which would be a very poor strategy, in general, for a few reasons.  Firstly, if he really did have a serious drinking problem which frequently manifested at work, then issues should have arisen sooner, and it should have been much easier for the defence to point to specific work-related failings that resulted.  Secondly, smear tactics are generally frowned upon for employers in wrongful dismissal proceedings.  Thirdly, if he was an alcoholic, then that raises the spectre of human rights issues and the duty to accommodate.

So yes, I can understand the employer having concerns about continuing to employ somebody under those circumstances, but you need to investigate thoroughly, come to justifiable factual conclusions as to what the actual state of affairs is, and then come up with a strategy for addressing the issue - with competent legal advice, preferably.

Alcohol in General

This isn't the first 'drinking on the job' case I've posted about.  In 2013, I discussed the Dziecielski case, involving an individual who stopped for lunch on his way back to the office from a customer visit, had a few beers with lunch, then wrecked the employer's vehicle and was charged with impaired driving.  9 years earlier, he had signed off that he had reviewed the employee handbook, which specified that drinking during working hours was a "major" violation.

In that case, the employer was found to have established just cause, which was the right result in the circumstances, but I pondered some counterfactuals:  What if it was only one drink?  What if there had been no collision?  Would violation of the 'no drinking' rule still have warranted summary termination without a trail of progressive discipline?

These two cases certainly illustrate the importance of context.  In Dziecielski, we have an egregious scenario with significant drinking, a BAC of over 80, criminal charges, a collision in the employer's vehicle, and a policy which expressly prohibits drinking at all.  In Volchoff, we have an individual who was proven to have the occasional glass of wine with lunch, but with no criminal charges, no evidence of significant impairment or performance concerns, no collisions, and inadequate evidence of a formal policy.

Many employers take a dim view of drinking - at all - during working hours.  This isn't unusual.  Some don't.  As I noted in my discussion of Dziecielski, I used to frequently go to lunch with my old firm's partners (i.e. my bosses at the time) and have a pint or a glass of wine.  (At that time, I practiced in the same town as now-Justice Nightingale, and one or more of his partners would occasionally join us as well, incidentally.  What can I say:  There's certainly a charm to small-town law.)  Obviously, they didn't object to it - from time to time, they even bought.  But if I'd drank to excess, certainly that would have changed their view.

Either way, scale and context are important, and that's what the Volchoff case ultimately establishes.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.