'The worker was trying to direct the employer to a course of action rather than leaning on the employer's decision'
“There’s a few things that courts will look at in determining a resignation - it has to be very clear that the person is actually saying, ‘I'm going to resign from my position’ – they’re going to look at the employee’s words and conduct.”
So says employment lawyer Sreya Roy of Turnpenney Milne in Toronto, after an Ontario court dismissed a worker’s wrongful and constructive dismissal claim, finding that they resigned instead.
The worker was a veterinarian at the Sharon Veterinary Clinic, a small clinic in Sharon, Ont., since 2000. The clinic was owned and operated by another veterinarian.
In August 2020, the clinic’s owner was asked to look after a cat belonging to a client. However, the cat escaped from the clinic and the owner accepted responsibility.
On Aug. 5, the client’s partner made threats of harm against clinic staff because of the lost cat, which prompted the owner to contact the police. The police warned the man to avoid contact with the clinic and its employees, and to never attend the clinic’s premises.
Steps to ensure workplace safety
The owner spoke with the client’s partner directly and said that she was personally responsible for the loss of the cat, reiterating that he was not to have any further contact with the clinic or its staff or police would be called. She then instructed clinic staff that no services were to be provided to the client or her partner going forward, leaving a note in the patient chart that stated “absolutely no service.”
The clinic owner also contacted her security alarm company to request that if an alarm was triggered, the police were to be called immediately.
On Aug. 10, the client contacted the clinic to request her cat’s medical file. The clinic provided the file with a note that her partner honour the warnings from the police.
The owner’s actions showed that she wanted to take all the correct steps to ensure employees were safe, which helped its case later, according to Roy.
“From the very get-go, as soon as the [owner] became aware of the incident, she contacted the police instead of taking it in her own hands,” she says. “And she didn’t stop there - she contacted the security company, advised staff not to service this client, put a note in the file, and transferred the file with another note - this is an employer actually concerned about safety and taking steps to put safety at the forefront of her business.”
The worker continued working her regular full-time hours at the clinic for approximately two weeks. However, on Aug. 18, she texted the owner saying that she wouldn’t be in that week due to the passing of her father-in-law.
Doctor’s note
On Aug. 21, the worker came to the clinic and provided a doctor's note stating that she had seen the doctor “because of an incident which happened at her workplace” and she was unable to return to work until the workplace issue was resolved.
The worker also asked the owner to send a letter to the client’s partner formally terminating the client’s association with the clinic.
One week later, on Aug. 28, the clinic’s bookkeeper suggested that the owner call the worker to see how she was doing. The owner called the worker, who asked about the client termination letter. The owner said that she didn’t intend to send a letter because she felt it would only inflame the situation.
The worker replied that if a letter wasn’t sent, she wouldn’t be returning to the clinic. The owner then asked the worker to return her keys. After the phone call, the worker told the clinic’s bookkeeper that she had been fired. When the bookkeeper advised the owner of this, the owner said the worker hadn’t been fired and she had advised the worker to take some additional time off to recover.
The owner sent a letter to the worker on Sept. 3 advising that she and the police had both spoken to the former client’s partner and she was “confident he will not be attending the clinic.” She said there was “very little if any risk to you as you are not the focus of this individual’s complaints” and she hoped the worker would return to work soon. The letter concluded with a request to confirm when the worker would be coming back.
Wrongful, constructive dismissal
The worker didn’t respond directly and instead had a lawyer send a letter on Sept. 29 claiming wrongful or constructive dismissal.
The worker filed a wrongful or constructive dismissal action against the clinic, claiming 24 months’ notice and moral damages for mental distress. She argued that her demand for a client termination letter was supported by her doctor’s note and the request to return her keys demonstrated that she was being fired.
The court determined that the worker’s demand for a termination letter sent to the former client wasn’t a reasonable requirement for her return to work, as the owner had taken appropriate steps by contacting the police and the alarm company, instructing staff not to provide services to the client, and noting in the client’s file that no further treatment would be provided.
The court took a different approach to assessing if there was constructive dismissal, says Roy.
“Rather than going the traditional route of the test - which is a unilateral change [to the fundamental terms of employment] – the court looked at whether the employer acted correctly in its refusal to issue the termination letter to the client,” she says. “The court found there was no constructive dismissal because the employer acted reasonably in taking all those steps, and there really wasn't a need to send that letter.”
“Even if we take the facts of this case back to the traditional constructive dismissal test, I think the end result would be the same - the employer deciding not to send the termination letter didn’t amount to a unilateral change in the essential term of the workers employment,” adds Roy. “There was no evidence put forward to say that it was a poisoned or unsafe work environment.”
Resignation
The court found that the owner was under no obligation to send the client termination letter and the worker’s refusal to return to work amounted to a resignation.
“Really, the worker was trying to direct the employer to a course of action rather than leaning on the employer's decision to determine what is going to make it a safe workplace,” says Roy. “That's really important, because the doctor's note wasn’t specific - and we know from the human rights realm that medical practitioners don't get to determine what the accommodation is going to be, it’s up to the employer with some assistance from the employee.”
The court also noted that the worker attended the clinic for two weeks after the incident and lived two blocks away from the client without any apparent issues, and she only provided the doctor’s note after she took time off for a death in the family. As for the request to return her keys to the clinic, this was also reasonable since the worker said she wouldn’t be returning if the client termination letter wasn’t sent.
“We obviously don't have the credibility analysis from the court, but I think when you're looking at the overall context, it's not really demonstrating someone who's scared or worried about their safety,” says Roy.
No medical evidence
The court also rejected the worker’s claim for moral damages and damages under the Human Rights Code, noting that there was no medical evidence to support claims of a disability or mental distress.
“We know that one trauma [the death of the worker’s father-in-law] can bring back another trauma and it's not for the employer to determine if the medical evidence is accurate,” says Roy. “But it is for the employer to determine if there’s any supporting medical evidence, and here we have no medical evidence whatsoever other than the words of the worker and one doctor saying the employer needed to address the incident - and the employer did address it.”
The worker’s claim for wrongful and constructive dismissal was dismissed. The court added that had it ruled in favour of the worker, it would have awarded 20 months’ notice based on her tenure.
“We have seen from other employers, when an employee says, ‘I'm not coming back,’ they accept the resignation,” says Roy. “This employer didn't do that, it actually asked, ‘When are you coming back to work?’ - the employer is not the one who severed the relationship, it was the worker through her counsel sending a letter saying she was constructively dismissed.”
“It’s an example of making sure that if there’s a resignation, the conduct or the words are clear that the employee is severing the ties and their employment.”
See Poesl v. Sharon Veterinary Clinic Professional Corporation, 2025 ONSC 622.
