Introduction
Nearly three years ago, the Ontario Court of Appeal released Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310 – now a defining case on the interpretation of “wilful misconduct” under Ontario’s Employment Standards Act, 2000 (the “ESA”). For our original reporting on this case, please see here.
In honour of the decision’s third anniversary this April, we’re launching a special three-part series to revisit Render and explore how courts and other quasi-judicial decisionmakers have applied its reasoning in the years since. (After all – what better way to mark three years than with three case law roundups?)
This first installment will reintroduce the Render decision and survey Ontario court cases that have cited it.
The Facts
Mr. Render, a long-serving (30+ years) operations manager, was dismissed for cause after he slapped a female co-worker on the buttocks in front of colleagues. The incident took place in a small office environment that – while informal and social – had only days earlier received a mandatory training session on the employer’s new anti-harassment policy, which emphasized a zero-tolerance approach.
The trial judge found that the impugned conduct, combined with Mr. Render’s failure to show genuine remorse, irreparably damaged the employment relationship, justifying summary dismissal. However, the judge also found that wilful misconduct had not been established. On appeal, the Court of Appeal agreed. Accordingly, while the dismissal for cause was upheld, Mr. Render was still entitled to eight weeks’ ESA termination pay.
Key Legal Principle: The ESA vs. Common Law Tests
Render is now widely cited for its clear articulation of the distinction between just cause under the common law and wilful misconduct under the ESA.
As the Court of Appeal explained:
“Wilful misconduct involves an assessment of subjective intent, almost akin to a special intent in criminal law… It is, to put it colloquially, being bad on purpose.”
In other words, serious misconduct is not enough. To deny ESA entitlements, employers must show the employee knowingly engaged in wrongful conduct – a standard higher than that required to justify dismissal for cause at common law.
The Render decision quickly became a touchstone for employment and labour law jurisprudence. With more decisions interpreting Render now on the books, it’s an opportune moment to take stock.
Post-Render Roundup: Ontario Courts
As noted above, this installment focuses on Ontario court cases where Render was cited. These cases include the following:
2551965 Ontario Ltd. v. Warkentin, 2024 ONSC 4876 (Fitzpatrick J.; September 4, 2024)
Impugned Conduct: The employee, a former owner turned agent, was terminated for cause following a series of escalating workplace issues, including threatening the Broker of Record with violence, writing unprofessional and inappropriate comments in a shared internal system, attempting to divert a client to a competing brokerage, and general insubordination. The employer commenced an action against the employee for alleged breach of restrictive covenants and interference in contractual and economic relations. The employee brought a counterclaim for wrongful dismissal.
Decision: The Court found that Warkentin’s conduct amounted to both just cause under common law and wilful misconduct under the ESA. His behaviour—including a verbal threat made after “stewing” on a conflict, knowingly misleading a client, and interfering with a listing—was deemed serious, intentional, and incompatible with continued employment.
Outcome:
- Wilful Misconduct: Found.
- Just Cause: Found.
- Result: Warkentin was not entitled to any ESA or common law termination pay. Both his wrongful dismissal counterclaim and the employer’s action were dismissed.
Park v. Costco Wholesale Canada Ltd., 2023 ONSC 1013, (Bell J.; February 10, 2023)
Impugned Conduct: A long-serving assistant buyer deliberately deleted a workplace website he had created for Costco – twice – despite knowing the company intended to use it. He also sent misleading and insubordinate emails to management and made false statements in an EI application. For more details on this case, please click here.
Decision: The Court found Mr. Park’s conduct to be deliberate, dishonest, and insubordinate. It breached the employer’s code of conduct and the fundamental trust essential to the employment relationship. Applying Render, the Court concluded that the employee’s conduct met both the test for just cause and the higher threshold of wilful misconduct under the ESA.
Outcome:
- Wilful Misconduct: Found.
- Just Cause: Found.
- Result: Dismissal for cause upheld. No entitlement to ESA or common law termination pay. Claims against the employer for bad faith and human rights violations were also dismissed.
Pirani v. Canadian Imperial Bank of Commerce, 2023 ONSC 5991, (Ramsay J.; November 6, 2023)
Impugned Conduct: The employee, a Senior Financial Advisor turned Financial Services Representative, was terminated for cause following multiple breaches of the employer’s code of conduct. These included pulling client credit reports without signed consent, altering signed mortgage payout documents, using identical client notes across files, leaving confidential files unsecured, and misleading a client to obtain a retroactive account authorization. Despite prior written warnings, she continued to act outside of policy and downplayed the seriousness of her actions.
Decision: The Court found that the employee’s conduct, taken cumulatively and contextually, amounted to just cause for dismissal under the common law. It also met the threshold of wilful misconduct under the ESA, as her actions were intentional, repeated, and showed a conscious disregard for the employer’s rules and expectations. Her lack of credibility and unwillingness to accept responsibility reinforced the seriousness of her misconduct.
Outcome:
- Wilful Misconduct: Found.
- Just Cause: Found.
- Result: Claim dismissed in full. No entitlement to ESA or common law termination pay.
Arora v. ICICI Bank of Canada, 2024 ONSC 4115, (Brownstone J.; July 23, 2024)
Impugned Conduct: The employee, an Assistant Vice-President with over 15 years at the Bank, was dismissed for cause following a lengthy investigation that uncovered multiple serious breaches of duty. These included sharing confidential documents with competitors, establishing a competing business with two of his subordinates while still employed, using the Bank’s systems and resources for personal ventures, improperly storing identifying information in contravention of the Bank’s Privacy Policy, and being untruthful during the Bank’s internal investigation.
Decision: The Court found that while the employee did not owe fiduciary duties, he was nonetheless bound by duties of good faith, loyalty, and confidentiality under both contract and common law. His conduct – including the disclosure of proprietary information, improper recruitment of subordinates for a rival business, and dishonest responses during a formal interview – constituted a fundamental breach of the employment relationship. The cumulative effect of the misconduct was found to warrant summary dismissal.
Outcome:
- Wilful Misconduct: Found.
- Just Cause: Found.
- Result: Employee was not entitled to ESA or common law termination pay. His claims for wrongful dismissal and moral damages were dismissed.
Coming Up
Part 2 will explore the Ontario Labour Relations Board and Ontario Labour Arbitration Award decisions.
Part 3 will explore the decisions from other Canadian jurisdictions and will conclude the series by discussing emerging themes, practical takeaways for employers, and open questions still being worked out in judicial and arbitral jurisprudence.
This publication provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hunter Legal LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hunter Legal LLP.