“Eleventh Hour Claim of Just Cause” Rejected by Court: Witnesses “Tailored” Evidence

An Ontario judge has rejected a just cause defence raised by an employer two and a half years after the employee was dismissed.  The company alleged that the plaintiff, a sales manager, made fraudulent misrepresentations about future sales revenues during his hiring process.

The judge noted that a key employer witness’s evidence was “glaringly devoid of written corroboration” and that he “often appeared as if he was making his answers up as he went along”.  That witness testified, for instance, that he always jotted notes of discussions but he didn’t keep them, although he had earlier testified that he had not kept notes.

The judge stated, “The court was left with the definite impression that the defendant’s witnesses tailored their evidence to support their eleventh hour claim of just cause.”

Deciding that the employer did not have just cause for immediate dismissal, the court stated that the employee’s business plan, which he prepared and gave to the employer during the hiring process, was not a promise or guarantee of sales, but instead was a forecast of what he hoped could be achieved over the next five years.  The business plan was not “fraudulent” as alleged by the employer.  Further, the employer could not rely on conduct that they knew had occurred more than a year before the termination; the company had condoned or accepted the employee’s conduct.

The court awarded the sales manager, who had only two and a half years’ service, 6 months’ pay in lieu of notice.

This case illustrates that employers who wish to allege just cause for dismissal based on facts known at the time of termination should, in general, do so at the time of termination.  In this case, by waiting two and a half years to allege just cause, the employer subjected its position, and its evidence, to criticism by the court.

McGregor v. Atlantic Packaging Products Ltd.

Subscribe and stay updated
Receive our latest blog posts by email.
Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

Full bio