Is it frustration of contract or discrimination?

Employee's medical condition caused 3-year absence; employment was terminated 2 weeks before planned return-to-work date
By Paul Brooks
||Last Updated: 01/19/2016

Does an employee’s three-year absence from work amount to frustration of contract; or, does it constitute wrongful dismissal and a breach of human rights legislation? The challenging issues at stake in this type of situation were raised in the recent case of Boucher v. Black & McDonald Ltd.

The plaintiff was a business development representative who worked for Black and McDonald. The defendant is involved with controlled heating, ventilation, HVAC and boilers.

The plaintiff went on a maternity leave in June 2010. The maternity leave was followed by a medical leave which lasted until the fall of 2013. In the interim, there were a number of dates of possible return to work. Due to various circumstances, the plaintiff did not return. However, in her evidence, it seemed clear that she felt by September 2013 that she would return to work before year end. A graduated return to work was proposed to start on or about Nov. 11, 2013. However, the plaintiff was advised on Oct. 31 that her employment was terminated effective that day.

The plaintiff sued claiming wrongful dismissal and breach of her human rights. The defendant argued that the employment contract was frustrated, and that there had been no intent to discriminate.

The trial judge found that the plaintiff had been wrongfully dismissed. The trial judge also cited Wilson v. Solis Mexican Foods Inc. in deciding that the plaintiff should receive compensation in the amount of $20,000 for the defendant’s breach of the Human Rights Code.

Employers should therefore continue to be wary of the risk of breaching human rights legislation when deciding whether to fire an employee who has been absent from work because of sickness or disability.

Paul Brooks is a partner with Lerners LLP in London, Ont. He can be reached at (519) 640-6311 or

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