Ontario’s “Wilful Misconduct”: Difficult for Employers to Prove

The requirements to prove “wilful misconduct” have been clarified in a recent decision from the Ontario Court of Appeal in

The modern workplace has seen many positive changes, including an increasing intolerance for inappropriate conduct of various forms. As a result, there are many instances now where an employee can be properly terminated for cause based on their actions.

There is an important distinction in Ontario, however, between actions which amount to cause for dismissal under the common law, and the standard which applies when assessing whether or not an employee is entitled to claim termination amounts pursuant to the Ontario Employment Standards Act, 2000 (the “Ontario ESA”). In particular, the Ontario ESA requires the employee to have engaged in “wilful misconduct”, which involves a higher and more demanding standard than the common law of cause.

The requirements to prove “wilful misconduct” have been clarified in a recent decision from the Ontario Court of Appeal in Render v. ThyssenKrupp Elevator (Canada) Limited Group, 2022 ONCA 310.

Mark Render was terminated from his senior managerial position after 30-years of employment after he slapped a female co-worker. The employer alleged cause and provide no compensation.

The trial judge agreed, finding that the incident constituted harassment and caused an irreparable breakdown in the employment relationship. The employee’s actions thus justified termination for cause, and he was denied any right to be paid any amounts under the common law or the Ontario ESA.

Render appealed, arguing that his actions did not justify termination for cause. He made various arguments, including that he was remorseful, and that other sanctions short of termination should have been considered.

The Court of Appeal dismissed that part of the appeal which sought damages for wrongful dismissal and allowed the appeal on the issue of damages claimed under the Ontario ESA.

The termination of employment was justified under the common law of employment because of the employee’s actions and the resulting irreparable damage to the employment relationship. In the circumstances, termination for cause was a proportionate and reasonable decision for the employer to make.

The decision on the Ontario ESA part of the claim is based on what the Court of Appeal noted is the applicable standard to assess “wilful misconduct”. The Court held that Render’s actions, though inappropriate, did not meet the higher standard which one case has described as being “bad on purpose”.

The Court’s analysis equates the test “wilful misconduct” to something close to the criminal law standard which requires a person to engage in preplanned actions. This goes beyond simply being “intentional” and is more close to being “premeditated”. In the circumstances, the employer was ordered to pay Render his termination amounts under the Ontario ESA.

Takeaways for Employers

While applicable case law has always noted that “wilful misconduct” under the Ontario ESA is a different and greater standard than just cause at common law, this case likely makes it more difficult for employers to succeed with termination where the employee receives no compensation. There is now an increased obligation and onus on employers to prove that a terminated employee’s misconduct was both intentional and preplanned.