Trial Win: Ontario ‘road boss’ constructively dismissed, awarded over $320K

Hill v. 1359768 Ontario Inc.

Samfiru Tumarkin LLP secured more than $320,000 for our client, Jack Hill, in the case of Hill v. 1359768 Ontario Inc., a matter that was heard at the Ontario Superior Court of Justice (ONSC).

Partner Stan Fainzilberg successfully argued that Hill’s demotion after returning from long-term disability (LTD) leave—resulting in a significant pay cut—constituted a constructive dismissal.

SEE ALSO
• Can employers in Ontario demote staff?
• Job changes in Ontario: Employee rights
• Employee redundancy in Ontario: What you need to know

Facts of the case

• Hill begins working for B&B Towing (B&B) as a tow truck driver in 2004.
• In 2010, Hill is promoted to the position of “road boss”—the second-highest position at the company. He’s responsible for managing and supervising all of the tow truck drivers, ensuring maintenance of company vehicles, dealing with customer and employee issues, as well as occasionally performing towing work.
• In January 2019, Hill sustains an injury—preventing him from lifting more than 30 lbs. B&B makes the necessary accommodations.
• Hill continues to work and receive treatment for his injury until April 2020. His physician notifies him that he requires emergency surgery.
• Following the surgery, which was a success, Hill goes on LTD leave.
• In September 2021, B&B tells Hill that he’ll be returning to work as a tow truck driver because the position of road boss has been eliminated.
• Hill immediately objects to this arrangement.
• Before returning to work in January 2022, Hill objects to the demotion again. He requests the same accommodation he received in 2019.
• B&B proceeds with the demotion—informing Hill that his compensation will drop from a guaranteed base salary to commissions after an initial eight-week period.
• Hill tells B&B that he’s treating the change as a constructive dismissal, but will complete the eight-week period while his income remains at the road boss level.
• Prior to completing the eight-week transition period, Hill injures himself again and doesn’t return to B&B.
• On July 25, 2022, Hill begins working at Coopers Equipment Rentals as a dispatch coordinator.

The court’s decision

The ONSC agreed with Samfiru Tumarkin LLP’s argument that Hill had been constructively dismissed, stating “no reasonable person in [his situation] would accept a demotion and reduced compensation.”

Our client was awarded 22 months of severance pay, which included damages for:

• Loss of wages
• Cellphone and phone plan expenses
• Loss of a company vehicle, group benefits, and cash tips

To learn more about how severance pay is calculated in Ontario, click here.

Contract wasn’t frustrated due to medical leave

B&B argued that Hill’s employment contract was frustrated due to the length of his LTD leave.

However, Justice Mary Vallee found that 19 months, based on the case law, was a relatively short period of absence—adding there was no evidence the business couldn’t tolerate it.

Additionally, the court ruled that Hill’s accommodation request in January 2022, the same request he was accommodated for in 2019, wouldn’t have created undue hardship.

SEE ALSO
• Disability in the workplace: Your rights
• Employment Law Show: Duty to accommodate in Canada

Pandemic hardship doesn’t justify demotion

B&B also argued that the financial hardship caused by the COVID-19 pandemic justified Hill’s demotion.

Justice Vallee noted that there was no case law supporting a company’s right to make major modifications to an individual’s job during challenging economic conditions.

In fact, the court found the exact opposite.

WATCH: Employment lawyer Lior Samfiru breaks down everything you need to know about changes to your job on an episode of the Employment Law Show.

Key takeaways for employees

• You don’t have to accept substantial changes to your job: Hill’s victory serves as a reminder that companies in Canada can’t make major changes to the terms of an individual’s employment without their consent. If this happens to you, contact an experienced employment lawyer at Samfiru Tumarkin LLP. We can confirm that you’ve been constructively dismissed and help you secure the compensation you deserve.
• All forms of compensation are compensable: In addition to salary and benefits, Hill was awarded damages related to the loss of a company vehicle and cash tips that he otherwise didn’t declare on his tax return.

Key takeaways for employers

• Seek legal advice before making changes to an employee’s job: Each employment matter is unique. A thorough review of the situation by our knowledgeable team will ensure laws aren’t broken and that the worker’s rights have been taken into account.

Workplace issue? Contact us

Since 2007, the experienced employment law team at Samfiru Tumarkin LLP has helped tens of thousands of non-unionized individuals resolve their workplace issues.

Whether you’re in Ontario, Alberta, or B.C., our lawyers can review your situation, enforce your rights, and ensure that you receive the compensation you deserve.