Termination for Cause – Very Much Alive – Court of Appeal

Canadian court building

As we have discussed in previous blogs, it can be very difficult for employers to justify a termination for cause, especially when the Courts apply a contextual approach which often results in a finding that a lesser response short of termination is appropriate in the circumstances. However, as demonstrated in the Court of Appeal’s decision in Fernandes v. Peel Education & Tutorial Services Ltd. (c.o.b. Mississauga Private School), despite there not being a history of misconduct, the seriousness of an employee’s actions can justify a termination for cause.


The Employee was employed as a teacher with the Employer for approximately 10 years when his employment was terminated with cause. Specifically, the Employer found that the Employee had engaged in misconduct which included submitting incorrect marks for his students, delivering the incorrect marks late, using a computer program that did not provide accurate marks, initially lied to his Employer with respect to how the students’ marks were calculated, and falsifying students’ marks.

As a result of the Employee’s termination from his employment for cause, the Employee initiated legal proceedings seeking, among other things, his common law notice entitlements.

After considering the misconduct which the Employee engaged in, the Ontario Superior Court of Justice found that the Employer was not justified in terminating the Employee’s employment for cause and awarded the Employee damages including 12 months’ notice.

The Employer appealed the decision to the Ontario Court of Appeal.

Ontario Court of Appeal Decision

The Ontario Court of Appeal overturned the Ontario Superior Court of Justice’s decision and determined that the Employer was justified in terminating the Employee’s employment for cause. Specifically, the Ontario Court of Appeal stated:

“[The Employee’s] misconduct went far beyond mere negligence or incompetence. Failing to properly assign marks and evaluate student progress; falsifying students’ grades; repeatedly lying to his employer – these intentional acts constitute serious misconduct.”

Lessons for Employers

As other blogs on the topic of Termination for Cause have stated, the above decision demonstrates the difficulty an employer can have in justifying a termination for cause. Employers should be aware that the context surrounding the termination for cause is considered by the Court, and that such considerations can result in a finding of termination for cause despite there not being a history of misconduct engaged in by the employee. Given the difficulty surrounding terminations for cause, employers should seek the advice of experienced Employment Law Lawyers for guidance prior to terminating an employee for cause.

Lessons for Employees

Employees should be aware of the above decision as it provides an example whereby a termination for cause is justified despite an employee not having a history of misconduct. Accordingly, obtaining assistance from an Employment Law Lawyer in the event of being terminated for cause is critical to determine whether the employer is justified in terminating for cause.

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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