Introduction
Three years ago, the Ontario Court of Appeal released its decision in Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310 (“Render”). Since then, Render has become a leading authority on the interpretation of the “wilful misconduct” standard under O. Reg. 288/01 of the Employment Standards Act, 2000 (ESA). For our original reporting on Render, click here.
To mark the three-year anniversary of this significant decision, we launched a special three-part series examining how Render has been applied and interpreted by courts and adjudicators since its release in April 2022.
Here’s a quick recap of Parts I and II:
- Part I revisited the original Render decision and summarized Ontario court cases that have applied it. Click here for Part I.
- Part II focused on labour arbitration awards, exploring how Render has been considered in unionized environments, and decisions from the Ontario Labour Relations Board. Click here for Part II.
In this final installment, we turn our attention to decisions from other Canadian jurisdictions. While the ESA does not apply outside Ontario, adjudicators in other provinces have nonetheless looked to Render as a persuasive authority when determining whether employee conduct rises to the level of wilful misconduct.
We conclude the series by identifying key themes that have emerged from the post-Render case law, offering practical takeaways for employers, and highlighting open questions with which courts and arbitrators continue to grapple.
Post-Render Roundup: Other Jurisdictions
United Food and Commercial Workers Union, Local 401 v JBS Food Canada ULC, 2025 CanLII 21652 (Asbell; March 17, 2025) (Alberta Grievance Arbitration Awards)
Impugned Conduct: The Grievor was a general maintenance worker at a beef processing facility. He had been assigned to act as a fire watch while another employee performed welding work. The employer had strict fire safety protocols in place and ensured all workers were trained on them. Despite knowing he was required to remain on site for 30 minutes after the welding was complete to monitor for fires, the Grievor left the area just two minutes later to take a coffee break. He also used plastic bags, rather than the required fire blankets, to catch sparks during the welding. A fire broke out shortly after, burned for 24 minutes, and caused significant damage to equipment. Following an investigation, the employer concluded that the Grievor had engaged in wilful misconduct and terminated his employment for cause.
“Just cause” v. “wilful misconduct” was not an issue before the arbitrator in this case. The Union relied on Render to argue that the Grievor’s conduct was not wilful and therefore he should be reinstated to his employment.
Decision: The Arbitrator considered and applied Render in determining that the Grievor in this case had engaged in wilful misconduct. The Arbitrator provided the following reasons in this regard:
[99] As revealed in his testimony, the Grievor had on other occasions substituted his eye and nose test for the 30-minute rule. His actions were not because of a momentary and emotional aberration or provocation nor did it result from carelessness or inadvertence. There was not an intervening event that required him to leave his watch. His decision to leave was based on his looking and smelling for a fire and deciding it was okay to go on his break. As in the Suncor case supra, the Grievor made a conscious decision to act on his own knowledge and judgment to determine there was no risk of fire rather than waiting the 30 minutes as required to ensure a fire did not start. In my view, the Grievor engaged in conduct he knew to be serious misconduct and his actions were intentional, deliberate and wilful.
The Arbitrator also emphasized that safety infractions, especially those involving high-risk, fire-sensitive environments, require strict adherence to policy and can justify termination, even for a first offence.
Outcome:
- Wilful Misconduct: Found.
- Just Cause: Found.
- Result: Grievance dismissed. Termination upheld.
Carroll v Cobequid Housing Authority, 2022 NSLB 85 (CanLII) (Blackburn; October 19, 2022) (Nova Scotia Labour Board)
Impugned Conduct: The Grievor, a long-serving Director of the Cobequid Housing Authority, was terminated for cause following an investigation into allegations of sexual harassment. The misconduct occurred during a recruitment process at Tawaak Housing Authority, where the Grievor was on secondment. The allegations included unwanted touching, inappropriate comments, and the pursuit of a personal relationship with a job applicant over whom the Grievor had decision-making authority.
Decision: The Nova Scotia Labour Board upheld the termination, finding that the employer had just cause. In reaching this conclusion, the Board considered the finding in Render that a single act of sexual harassment could be just cause for termination. As “just cause” is the standard under the Nova Scotia Labour Standards Code, the Board did not turn its attention to the “wilful” misconduct standard. Applying the contextual approach set out in Render, the Board considered the following key factors in finding just cause:
- The Grievor’s senior position at Tawaak Housing Authority at the time of the misconduct;
- The existence of a formal and well-known sexual harassment policy that was actively enforced by the employer; and
- The Grievor’s lack of insight into the seriousness of his conduct, including his belief that his actions did not constitute sexual harassment.
The Board accepted the complainant’s account, emphasizing the power imbalance and the Grievor’s position of authority. His actions violated the employer’s Respectful Workplace Policy and represented a serious breach of trust. Given the irreparable harm to the employment relationship, reinstatement was not appropriate.
Outcome:
- Wilful Misconduct: N/A.
- Just Cause: Found.
- Result: Complaint dismissed. No reinstatement or compensation awarded.
Emerging Themes
A clear theme is the elevated threshold for establishing “wilful misconduct.” Render reaffirmed that this standard requires conduct that is intentional, serious, and incompatible with the continuation of the employment relationship, and not merely careless, negligent, or misguided. Adjudicators continue to emphasize the requirement for subjective intent: the employee must have known their conduct was wrongful and deliberately proceeded anyway.
Another consistent theme is the contextual analysis, as reinforced by Render. Decision-makers weigh factors such as prior warnings, the employee’s position of authority, past discipline, and whether the employer condoned or contributed to the conduct.
Practical Takeaways for Employers
- Maintain clear policies and enforce them consistently. Employees must know what conduct is prohibited. Render highlights that misconduct must be wilful, so ambiguity, tolerance, or inconsistency in enforcement can undermine a finding of wilfulness.
- Document performance and disciplinary issues thoroughly. A well-documented history of warnings, counselling, or prior infractions can be pivotal in establishing that misconduct was deliberate and repeated.
- Beware of inadvertent condonation. Even where misconduct may justify dismissal, an employer’s tacit acceptance of the behaviour can negate a finding of wilfulness under the ESA.
- Tailor discipline to context. Arbitrators, in particular, remain reluctant to uphold terminations where long service, poor judgment, or mitigating personal circumstances are present, unless the employer can show the employee’s actions crossed the line from negligent to wilful.
Open Questions
While Render has brought greater clarity, open questions remain. For instance:
- How will adjudicators continue to reconcile wilful misconduct under the ESA with just cause at common law? As many cases demonstrate, findings on these issues often align, but not always. The Michael Garron Hospital award (reported on here) is a notable outlier where just cause was found but wilful misconduct was not. These cases have all demonstrated that, under the ESA, the threshold for denying an employee their statutory minimum entitlements – wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer – is higher than the standard for just cause at common law. An employee may be found to have been terminated for cause but still be entitled to their statutory entitlements.
- How much weight should be given to long service, clean records, and rehabilitation efforts? While progressive discipline is generally expected, a single incident of serious misconduct, particularly one involving trust, confidentiality, or safety, may be sufficient to justify termination for wilful misconduct.
- Will we see broader application of Render beyond Ontario? Render’s influence has begun to immerge in other jurisdictions, particularly in cases that involve a single incident of misconduct or sexual harassment.
As these questions continue to unfold, Render remains an essential case for employers and counsel navigating the complex intersection of misconduct, intent, and statutory obligations. Its anniversary offers a timely reminder: dismissals for cause may be justified in substance, but without clear evidence of intent, they may still carry legal and financial consequences.
For more information or assistance navigating termination decisions and the wilful misconduct standard, please contact a member of our team.
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.