Employee’s Medical Leave Does not Count Towards Working Notice Period

Written by on May 2, 2018 in Employment Law Blog, Focus on Canadian Cases


In McLeod v. 1274458 Ontario Inc., the Superior Court of Justice determined that an employee who was incapable of working when he received notice of termination was entitled to damages representing the salary he would have earned had he worked during the notice period. This decision was recently upheld by the Divisional Court.

Keith McLeod was employed as a mover at Frontier Sales (“Frontier”) for nearly twenty years. In September 2015, he was involved in a non-work-related motor vehicle accident. Following the accident, he was placed on an unpaid medical leave of absence. In January 2016, McLeod’s physician found that he was suffering from both physical pain and post-traumatic stress disorder as a result of the accident, and provided a medical certificate to support his continued medical leave.

Later that month, while McLeod was on his medical leave of absence, Frontier provided McLeod with notice that the business was shutting down on July 31, 2016, and that his employment would be terminated on that date as a result. Frontier also informed McLeod that the period between this notification and its closing date would constitute McLeod’s working notice period.

In April 2016, McLeod provided Frontier with a medical letter from a new doctor, confirming that he was still unable to return to work. Frontier felt the doctor’s letter was inadequate and warned McLeod that he would be terminated for cause if additional information was not provided by April 22, 2016. Ultimately, however, Frontier did not carry through on its threat.

McLeod was ultimately cleared by his doctor for light duties on a part-time basis and was back on the job on July 27, 2016, just days before the business was to shut down on July 31, 2016.

Four days later, Frontier closed down.

The Trial turned on whether McLeod could have returned to work between January and July 2016, and whether Frontier owed him pay in lieu of notice during this period.

The Court rejected Frontier’s argument that since McLeod was not capable of working during this period, he had no damages and was not owed anything. Citing the Supreme Court decision of Sylvester v. British Columbia [1997] 2 S.C.R. 315, Justice Hood emphasized that an employee’s inability to work is irrelevant to the assessment of damages. Damages are based on the notion that the employee would have worked during the notice period. Accordingly, an employee who is dismissed either while working or while on an approved medical leave of absence is entitled to damages consisting of the salary he or she would have earned while working during the working notice period.

The Court also rejected Frontier’s claim that McLeod had shopped around for a doctor who would support his absence. Justice Hood noted that Frontier chose not to challenge the medical evidence at the relevant time, leaving McLeod to rely upon his doctor’s advice.

McLeod was awarded nine months’ compensation, calculated from January 31, 2016 to October 31, 2016, when he started a new job in a comparable position.

This case reinforces the principle that an employer cannot give working notice to an employee who is medically incapable of working. One of the purposes of working notice is to bridge the gap between termination and finding new employment. An employee incapable of working cannot reasonably be expected to search for a new job.

McLeod also highlights the importance of obtaining proper medical documentation, and confirms that if that documentation supports the conclusion that an employee is medically incapable of working, the employee may rely on his or her doctor’s advice, even when the employer disputes that opinion. An employer cannot insist that an employee is able to work, without any evidence to support that claim. Individuals are entitled to trust their doctors, and the Courts will defer to them as well, assuming that physicians will give honest assessments of their patients’ injuries.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.

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