Last May, the Court of Appeal released a decision supporting a motion judge’s decision to dismiss a teacher’s claim for constructive dismissal.
Kimberly DeBon taught English for more than six years at Hillfield Strathallan College (HSC), a private school in Hamilton. She was, by all accounts, an excellent teacher.
Due to a series of events occurring in 2012 and 2013, however, DeBon came to believe that the school no longer supported her. She was troubled by HSC’s intervention or failure to intervene in her relationships with her students and their parents, claiming that the school failed to protect her from a confrontation with the parents of a student over a mark she had given the student, and undermined her authority by having assignments read and marked by another teacher and by assigning passing grades to students who had failed to complete all of their assignments.
DeBon did not return to the classroom following the Christmas break in December 2013. Instead, she retained counsel, who sent a letter to HSC advising the principal that she had been constructively dismissed from her position and would be seeking damages.
She commenced an action against the school in early 2014. HSC defended the action, and brought a motion for summary judgment to dismiss the claim in its entirety.
The motion judge found in HSC’s favour, finding that DeBon failed to discharge the evidentiary burden of establishing a genuine issue for trial.
DeBon appealed from the dismissal of her action.
DeBon acknowledged that Justice Emery applied the correct legal test for constructive dismissal, as set out by the Supreme Court in Potter v. New Brunswick Legal Aid Services. That test asks:
- Did the employer’s conduct, by single act or through a series of acts, demonstrate the employer’s intention to no longer be bound by the employment contract?
- Is the breach sufficiently serious that the employee has been constructively dismissed?
Both of these questions are to be considered objectively, through the lens of a reasonable person in the same circumstances as the employee.
The Court of Appeal had no difficulty in dismissing DeBon’s appeal from Justice Emery’ decision.
The court found that there was no express or implied term of DeBon’s employment that was altered, changed or ignored. While it acknowledged the unpleasantness of some of the instances that DeBon had to deal with, the court ultimately held that Justice Emery’s overall conclusion –that “a reasonable person with a dispassionate perspective” would not view the teaching environment at HSC to be untenable for DeBon and that the evidence did not establish that the school had made the workplace “poisonous” for her—was amply supported by the record.
This decision serves as a caution to employees who might wish to claim constructive dismissal against their employers. Whether a working environment is a “poisonous” one is not up to the employee. The court will take a “dispassionate” approach to this question, and it may not see the working environment in the same way as the disgruntled employee.
DeBon’s claim against HSC proved very costly for her. She not only lost her job, as she resigned in order to claim constructive dismissal, but she also lost twice in court, having to pay costs for her former’s employer’s legal fees.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. If you have any questions on constructive dismissal or what is a poisonous work environment, please contact us at firstname.lastname@example.org or call us at 905 477-7011. Go to our website and sign up for our newsletter to receive up to date employment law information, including new legislation and Court decisions impacting your workplace.
Please note that this article is for informational purposes only and does not constitute legal advice.
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