Working Notice: When Medical Leave Is In Play

by Stan Fainzilberg

Monday, July 17th, 2017 at 4:20 am

Samfiru Tumarkin LLP is proud to announce that a recent Superior Court decision favoured the firm and its client, and confirmed the principle that working notice does not count when an employee is not at work due to medical factors.

More importantly, McLeod v 1274458 Ontario Inc. serves as an important reminder that an employee has the right to rely upon their physician’s advice, even when their employer disputes the medical opinion that is provided.

McLeod v. 1274458 Ontario Inc.

Keith McLeod had been employed as a mover at Frontier Sales in Scarborough for just under 20 years, operating a delivery van for the residential furniture and appliance company.

On September 18, 2015, McLeod was involved in a non-work-related car accident, which rendered him unable to return to work. Without objection from his employer, he was placed on an unpaid medical leave of absence. In late January of 2016, McLeod’s treating physician confirmed that he was experiencing both physical pain and PTSD as a result of the accident, and provided a medical certificate acknowledging that fact.

On January 31 of 2016, just days after McLeod had provided Frontier Sales with his doctor’s prognosis, he was sent a notice advising him that the retail business was shutting down as of July 31, 2016 and that his employment would be terminated on that same date. The company also noted that the period between notification and the store’s closing date would be considered working notice, despite the fact that McLeod was unable to return to work.

In mid-April 2016, McLeod acquired a new doctor that provided a letter which corroborated the previous physician’s opinion. Frontier Sales argued that the employee had “shopped around” to find a doctor who would support McLeod’s alleged desire to remain off work, despite the fact that there was no evidence to support this theory. The company felt the doctor’s letter was inadequate, and warned that they would terminate McLeod for just cause if more information was not provided by April 22, 2016. The deadline came and went, Frontier Sales took no action.

It wasn’t until July 27, 2016 that McLeod was back on the job, having been cleared by his doctor for light duties on a part-time basis. On July 31, Frontier Sales closed its doors permanently.

Trial: Medical Leave & Working Notice

At trial, the main issues were whether Keith McLeod could have returned to work between January and July 2016, and whether Frontier Sales owed pay in lieu of notice during this period.

The employer argued that since McLeod was not capable of working during this period, he had no damages and was not owed anything. This argument was conclusively rejected by the court, relying upon a previous Supreme Court decision (Sylvester v. British Columbia) where it was explicitly found that the fact that an employee could not work was irrelevant to the assessment of damages. Damages are based on the premise that the employee would have worked during the notice period. Therefore, an employee who is wrongfully dismissed either while working or while receiving disability benefits is entitled to damages consisting of the salary they would have earned while working during the working notice period.

The employer also argued that the McLeod had shopped around for a doctor who would support his absence and had failed to return to work when repeatedly told to do so. After reviewing the medical evidence, the court thoroughly rejected this argument as well, noting that McLeod had received advice from a doctor. The doctor indicated that he could no return to work, and Frontier Sales chose not to challenge the medical evidence at the relevant time, leaving McLeod to rely upon his doctor’s advice.


Ultimately, Justice Kenneth Hood awarded McLeod 9 months’ compensation, or pay in lieu from January until October 31, 2016, when he started his new job in a comparable position.

Lessons Learned


  1. Proper Medical Documentation. This case further highlights the importance of proper medical documentation and, if the medical evidence supports the conclusion that the employee is medically incapable of working, the ability to rely upon their doctor’s adviceNotwithstanding the employer’s belief that the plaintiff could have returned to work, the medical evidence did not support this position and an employee is allowed to follow their doctor’s advice.


  1. Seek Out Legal Counsel BEFORE Termination! This decision is a reminder of the pitfalls for an employer failing to seek out counsel before choosing to terminate an employee. Had they waited until July 31, 2016, to notify the plaintiff of his termination, Frontier Sales would have only had to pay the employee 3 months’ of pay in lieu of notice, as opposed to the 9 months that the plaintiff received. However, by not seeking legal advice and trying to get away with giving a disabled individual “working notice” during a period that he was not medically capable of working, the employer had to pay an additional 6 months, notwithstanding the fact that the plaintiff could not medically work during this period.
  2. Working Notice Does NOT Count When an Employee Is Not At Work.
  3. Don’t Jump To Conclusions. Far too often, employers unreasonably conclude that employees simply have a doctor who is supporting their absence when they are not really medically unable to work. As the court indicated in McLeod, however, an employer cannot make such bald assertions, without any evidence to back it up, simply because it is their belief. It must be remembered that people, and courts, trust that doctors will give honest assessments of an individual’s injuries and are entitled to deference. An employer simply wishing for something different will not change this undeniable fact.


 Associate Stan Fainzilberg represented the plaintiff in McLeod v 1274458 Ontario Inc.

Read the decision in its entirety.

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