Introduction
Three years ago, the Ontario Court of Appeal released Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310 (“Render”) – now a defining case on the interpretation of the “wilful misconduct” standard under O. Reg. 288/01 of the Employment Standards Act, 2000 (ESA), and how this standard is distinguished from the “just cause” standard at common law. For our original reporting on Render, click here.
In honour of Render’s three-year anniversary, we launched a special three part-series to revisit the case and explore how the courts and other adjudicators have applied it since April 2022.
In the first installment, we reintroduced the decision and surveyed Ontario court cases where it had been considered and applied. In this installment, we provide a collection of Ontario labour arbitration awards (i.e. decisions in the context of unionized work environments) and Ontario Labour Relations Board (OLRB) decisions. The cases summarized below serve as a reminder of the extremely high standard required to meet the wilful misconduct threshold.
Post-Render Roundup: Ontario Arbitration Awards
Michael Garron Hospital v Service Employees International Union, Local 1 Canada, 2024 CanLII 25041 (Luborsky; March 27, 2024)
Impugned Conduct: The employee was a Registered Practical Nurse with over 13 years of service. She was dismissed for cause after intentionally administering a significantly lower dose of morphine (2.5 mg instead of 40 mg) to a patient on a PRN (i.e. as needed) basis, falsely documenting the dosage, and failing to complete narcotic control records or chart clinical assessments. She admitted underdosing based on her personal belief that the patient, who she described as a “drug abuser,” did not need the medication. The incident occurred despite a recent Learning Plan for clinical deficiencies and an active disciplinary record.
See here for our original reporting on this case.
Decision: The arbitrator provided the following commentary regarding the applicability of the Court of Appeal’s ruling in Render, which took place in the context of a non-unionized workplace (i.e. where the contract in question was an employment agreement, not a collective agreement), in the context of a grievance/unionized workplace:
[121] While both Render, supra, and Plester, supra, were wrongful dismissal decisions under common law contracts of employment, the principles governing the exceptions to the receipt of statutory termination and severance pay under O. Reg. 288/01 apply equally to unjust dismissal disputes under a collective agreement regime.
[122] Therefore adopting the standard in Plester, supra, as accepted by the Ontario Court of Appeal in Render, supra, to the case before me, I conclude an employee “who has been guilty of wilful misconduct” as those words appear in O. Reg. 288/01 must be distinguished from “careless, thoughtless, heedless, or inadvertent conduct by the employee, no matter how serious”. In order to meet the required high threshold to constitute “wilful misconduct” to deprive the employee of termination and/or severance pay under the ESA, the onus is on the employer to establish that the misconduct was “preplanned” in the sense of an employee who “purposefully engaged in conduct that he or she knew to be serious misconduct” which necessarily “involves an assessment of subjective intent, almost akin to a special intent in criminal law.”
The arbitrator found that the grievor’s conduct—including acting outside her scope of practice, failing to follow medication protocols, and justifying the underdose with inappropriate personal bias—constituted just cause for dismissal. However, the Arbitrator held that the conduct, while serious, did not meet the threshold of wilful misconduct under the ESA, noting her actions stemmed from poor judgment under stress rather than a deliberate intent to harm or defy rules.
Outcome:
- Wilful Misconduct: Not Found.
- Just Cause: Found.
- Result: Termination upheld. However, the grievor was entitled to ESA termination and severance pay (21 weeks).
Ipex Inc. & Ipex Management Inc. (London) v United Steelworkers, Local 49m, 2024 CanLII 36365 (Chauvin; April 09, 2024)
Impugned Conduct: The employee had worked as a Set-up Process Operator at a plastic injection molding plant and had been discharged twice by his employer. The first discharge occurred for leaving the workplace and not returning on time. The union successfully grieved the discharge. The employee was reinstated under a Last Chance Agreement (LCA). The employee was discharged the second time for breaching the LCA by failing to attend work or follow the correct call-in procedure on two specific dates. The union grieved. The Grievor did not attend the arbitration, but the union proceeded in his absence.
The union argued: the discharge violated the Ontario Human Rights Code and was thus invalid because the grievor had an alcohol dependency (i.e. a disability); his disability had caused the employee to fail to attend work or follow the correct call-in procedure; and the employer had not accommodated the employee to the point of undue hardship. The employer argued: the evidence did not support the contention that the employee had a disability; and, in any event, the employer had already accommodated the grievor to the point of undue hardship through coaching, counseling, warnings, and disciplinary action, including the LCA.
The union argued in the alternative that the Grievor was entitled to ESA notice and severance because his failure to follow the call-in procedure and attend at work was not wilful misconduct or disobedience under the Render standard. .
Decision: Arbitrator Chauvin dismissed the union’s arguments under the Human Rights Code:
[66] I do not find that there are compelling circumstances that would make the enforcement of this Last Chance Agreement to be unjust or inequitable. Rather, under these circumstances, where the Grievor chose not to attend the arbitration or to fully cooperate with the Union, and in view of the evidence that was presented at the arbitration, I find that the most reasonable course of action is to enforce the Last Chance Agreement. I find that the Last Chance Agreement does not violate the Human Rights Code, and that the second discharge of the Grievor pursuant to the Last Chance Agreement is valid.
Applying Render, the arbitrator determined the grievor’s conduct amounted to wilful misconduct under the ESA, and that he was therefore not entitled to termination or severance pay:
[77] … I find that the Grievor’s failure to call-in and report for work on May 31 and June 5, 2023 definitely amounted to “disobedience”. Also, given the number of counselling, warnings and discipline that the Employer had given to the Grievor in the past, including entering into the LCA, the Grievor’s disobedience can also be considered to have been “deliberate and intentional” because “he knew that he was doing something wrong”… As such, his disobedience can also be considered to amount to “willful misconduct” and “willful neglect of duty”, for the purposes of the ESA. Finally, for the same reasons, I find that the Grievor’s misconduct was “not trivial” and was not been [sic] condoned by the employer. As such, for all of these reasons, the Grievor is not entitled to ESA termination and severance pay.
Outcome:
- Wilful Misconduct: Found.
- Just Cause: Found.
- Result: Termination upheld. Employee’s wilful misconduct disqualified him from ESA termination and severance pay.
United Food & Commercial Workers Canada, Locals 175 & 633 v OIymel s.e.c/LP, 2024 CanLII 104399 (Wilson; October 28, 2024)
Impugned Conduct: A 66 year old employee had been working for a poultry factory for 44 years. Since 2012, he had been a Line Supplier and was responsible for ensuring the poultry product was supplied to the production line. The employee had a relatively long coaching and disciplinary history. One day, the employee failed to supply the correct meat to the production line, which caused the line to go down at a cost to the employer. During this incident, he also left a 700kg bin in front of an exit, causing a safety risk. The employer dismissed him for this incident and refused to provide him with severance or termination pay, taking the position that the incident had amounted to wilful misconduct.
Decision: The arbitrator found that, while discipline was warranted in this case, termination was too harsh a penalty, and there was no basis for a finding of wilful misconduct (or just cause). This was due to the mitigating factors in this case, the most significant being the grievor’s 44 years of service. The arbitrator found that this militated in favour of a final opportunity to demonstrate that the grievor could meet the employer’s expectations. The arbitrator also considered the lack of negative intent, as there was no maliciousness or deliberate effort to shut down the production line or block the door.
Outcome:
- Wilful Misconduct: Not Found.
- Just Cause: Not Found.
- Result: Reinstated to a different position without back pay. Dismissal period considered a disciplinary suspension without pay.
Post-Render Roundup: Ontario Labour Relations Board
Francisco Baraquio v IQVIA Solutions Canada Inc., 2023 CanLII 126946 (Smeenk; December 14, 2023)
Impugned Conduct: The employee, a high-performing Manager of Clinical Operations, was terminated for cause after failing to disclose a potential conflict of interest and violating the employer’s Code of Conduct and Conflict of Interest Policy. While employed at the company, the employee co-founded a competing start-up, recruited a subordinate into the venture, and served as a director without seeking approval, despite the company offering similar services in the same general market. The venture was ultimately inactive and had no clients, but the employee admitted to helping build it and “waiting to see” if it would become serious.
An Employment Standards Officer investigated the matter and found there had been no violation of the ESA by the company. The employee applied to the OLRB for a review of the ESO’s decision.
Decision: The OLRB found the former employee had been guilty of wilful misconduct within the meaning of the ESA and upheld the ESO’s decision. In determining whether there had been wilful misconduct, the OLRB provided as follows:
50. This brings me to the issue of whether Mr. Baraquio’s conduct was (in the words of the Regulation) “not trivial” or (as stated in Render) “serious misconduct”. I have concluded that it was not trivial and was serious in the context of this case.
The OLRB relied on the following aggravating factors, among others: (1) Even if the start-up venture never became operational, the former employee’s failure to disclose or seek the required approvals was deliberate, policy-violating, and non-trivial; (2) As a manager, he was expected to “set the tone” and lead by example, which he failed to do as a result of his secretive and self-serving actions: (3) He used his managerial position and knowledge to recruit highly competent subordinates into the new venture; and (4) The start-up would have been a competitor of the employer. For these reasons, wilful misconduct was established, and the former employee was disentitled from termination and severance pay.
Outcome:
- Wilful Misconduct: Found.
- Just Cause: Found.
- Result: No ESA termination pay or severance. Application for review dismissed.
Aussie Stone Marble & Granite Inc. v Kevin W. Murray, 2025 CanLII 39842 (Kaufman; April 03, 2025)
Impugned Conduct: The employer, a supplier of marble and granite counter tops, employed the employee as a fabricator. With the employer’s permission (which included using the company’s work shop and vehicle), the employee had his own business as a fabricator on the side. After fourteen months, the employee was terminated for wilful misconduct. The employer alleged that he had committed product and/or time theft, and had incurred about $2,500 in unauthorized highway toll charges. The employee’s position was that the impugned conduct (which included using the company’s materials for his business and working on his business during company time) had either been permitted by the employer or had not expressly been prohibited by them.
An ESO investigated and determined there had been no wilful misconduct. The employer filed an application for review with the OLRB.
Decision: The OLRB agreed with the ESO that there had been no wilful misconduct in this case, and that the employee was therefore entitled to termination pay. The OLRB’s decision turned on whether or not the impugned conduct had been condoned by the employer. In accordance with Render, conduct that has been condoned by an employer cannot amount to wilful misconduct. In this case, the employer’s evidence (which included unconvincing witness testimony and unclear video footage) failed to establish that the impugned conduct had not been condoned by the employer. Further, there was a lot of evidence that showed the employer had allowed the lines between their business and the former employees to be blurred. This was their fault. It meant that, even if the impugned conduct warranted termination, it did not amount to wilful misconduct under the ESA, such that the former employee should be deprived of their entitlements thereunder.
Outcome:
- Wilful Misconduct: Not Found.
- Just Cause: Found.
- Result: Termination upheld. Employer required to pay termination pay.
Coming Up
Part 3 in this series will explore decisions from other Canadian jurisdictions. It will also conclude the series by discussing emerging themes, practical takeaways for employers, and open questions still being worked out in the 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.