Case: Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher Dentistry Professional Corporation), 2019 ONCA 469 (CanLII)

Keywords: Dental Hygiene; Resignation; Employment Standards Act, 2000, S.O. 2000, c. 41.

Synopsis:

Beginning in 1993, the Respondent, Ms. Theberge-Lindsay, is employed as a dental hygienist by the Appellant, Dr. Kutcher via his dental practice and various ‘corporate vehicles’. During the course of the Respondent’s employment, she is “required to sign a series of employment agreements…which limited entitlement for wrongful dismissal to the minimum” provided in the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”). (See para. 1).

Upon her termination in December, 2012, the Respondent is given one week’s salary (having signed the most recent employment agreement in 2011). The Trial Judge determines “…none of the three employment contracts signed by [Ms. Theberge-Lindsay] are enforceable. Each of the contracts fail respectively for lack of consideration.” (See para. 3; Theberge-Lindsay v. 3395022 Canada Inc., 2018 ONSC 3222 (CanLII) at para. 19). The Trial Judge therefore finds the Respondent was wrongfully dismissed and entitled damages in lieu of reasonable notice under the common law.

Though the Court of Appeal states the Trial Judge’s legal conclusions are “firmly grounded” in appellate jurisprudence, Dr. Kutcher’s appeal is allowed on the basis the Trial Judge did not appropriately consider the effect of the Respondent’s resignation in 2005.

Importance:

The circumstances of the Respondent’s resignation were set out by the Trial Judge at paras. 8-10 of her decision, and reproduced by the Court of Appeal at para. 8. Simply put, the Respondent tendered her resignation as she was engaged to be married and planned to relocate to Guelph, Ontario. She had secured alternative employment to be commenced in July 7, 2005 and so informed Dr. Kutcher.

It transpired that the Respondent ended her engagement, and so remained employed as a dental hygienist in Dr. Kutcher’s office. What was the effect of the resignation?

Without a tremendous amount of elaboration on the point, the Court of Appeal agreed that the Respondent’s “unequivocal resignation and re-hiring in 2005” constituted a “break” in the employment relationship:

We agree with the appellant’s submissions that Ms. Theberge-Lindsay’s unequivocal resignation and re-hiring in 2005 marked a break in the employment relationship after which an entirely new contract was reached between her and Dr. Kutcher. There was consideration for that new employment contract, that is, Ms. Theberge-Lindsay’s offer to again be employed by Dr. Kutcher and his acceptance of her offer to again employ her. On this basis, the Employment Standards Act, 2000 minimum notice is the maximum amount to which the respondent is entitled, measured from 2005. On this basis, she is entitled to 7.5 weeks of salary at $1,204 per week, less $1,200 severance already paid. (See para. 11).

For the Court of Appeal, the resignation was significant. Though Dr. Kutcher’s attempts to limit the Respondent’s entitlements for wrongful dismissal failed, the circumstances of the Respondent’s personal relationship appear to have made the biggest difference with respect to what she received.

This decision is significant because of what it signals to employers who attempt to reduce their obligations upon termination of an employee. At the same time, it raises an interesting point with respect to the meaning of a resignation. In this case, though the Respondent continued to work for Dr. Kutcher during the “notice period” (see para. 8), and resumed her employment after her engagement and re-location plans fell through (see para. 9), the Court of Appeal declined to find a continuous period of employment from 1993-2012. It remains to be seen whether this matter will be appealed further. Should leave to appeal be sought, might the Court of Appeal have tried to insulate its decision on this point by not drafting expansive reasons overturning the Trial Judge’s findings? Qui vivra, verra.

Counsel for the Appellant: Chris Dockrill (Law Office of Chris Dockrill, Toronto)

Counsel for the Respondent: Ryan Kornblum (Kornblum Law, Toronto)

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