Carol Delong v ZoomerMedia Limited, 2020 CIRB 933 (CanLII)
In July 2019, the respondent advised the complainant that her employment as Manager Broadcast Systems was being terminated because her employment contract with it had been frustrated due to her long-term medical absence of over five years. Delong filed a complaint of unjust dismissal under section 240 of Part III of the Code.
The question was whether the doctrine of frustration applied in unjust dismissal complaints under the Canada Labour Code. The Board reviewed the caselaw and found:
[46] It is the Board’s view that although the unjust dismissal regime under the Code differs in many respects from the common law related to wrongful dismissal, the general concept of frustration of contract is applicable in the context of unjust dismissal complaints and, if established, can constitute a legitimate basis for an employer to terminate an employee’s employment. This is so despite the fact that an employee has not engaged in culpable conduct. An employment contract may be frustrated where an employee is no longer capable of fulfilling or performing his or her duties and there is no reasonable likelihood of the employee returning to work within a reasonable time period. The Board accepts that frustration of contract may be a defence to a claim of unjust dismissal, and where an employer can establish that an employment contract has been frustrated, the termination may not be considered unjust for the purposes of section 240 of the Code.
The Board then turned to the question of whether the respondent had met the burden to establish frustration. The Board stated:
[47] The onus of proof is on the respondent to establish that the employment contract has been frustrated on the basis that, at the time of the termination, the complainant was incapable of working and that there was no reasonable likelihood that she would be able to return to work within a reasonable time.
[48] The determination of whether a contract has been frustrated must be made based on the facts of the particular case.
The Board referred to the Ontario Superior Court of Justice decision in Roskaft v. RONA Inc., 2018 ONSC 2934, and noted that Adjudicators in unjust dismissal cases had taken a similar approach to the assessment of frustration under the Code (Carter v. Lac La Croix First Nation, [2003] C.L.A.D. No. 249,). In the Board’s view, “the focus is whether, based on the totality of the evidence available at the time of termination, the employer can establish that the employment contract had been frustrated.”
The Board concluded:
[58] It is important to note that the complainant in this case did not respond to the termination letter from ZoomerMedia to provide updated medical information to correct any possible misunderstanding on the part of the respondent about her ability to return to work. In addition, the complainant has not provided medical information as part of the unjust dismissal complaint or in her submissions to the Board that would establish a change in circumstances such that there was a likelihood that she could return to work. The complainant has not asserted that she is able to return to work, and there was no evidence from her to challenge the respondent’s conclusion that she would not be able to return to work in the foreseeable future.
The contract had been frustrated and the complaint was dismissed.