Jonquille Pak

The plaintiff, a 70-year-old medical secretary, was dismissed during the COVID-19 pandemic after her request to work remotely was denied.

The employer initially provided working notice but later alleged after-acquired cause upon discovering the plaintiff had improperly accessed and created medical charts for herself and family members using the clinic's electronic database.

The court dismissed the plaintiff's human rights and wrongful dismissal claims, finding the employer had accommodated her to the point of undue hardship given the clinic's confidentiality requirements and pandemic-related challenges.

The court further held that the plaintiff's unauthorized access to medical records constituted a serious privacy breach that struck at the heart of the employment relationship, justifying termination for cause.

The plaintiff moved to remove the defendant's lawyer of record on the basis that the lawyer would be a witness to material facts at trial and that her communications formed the factual foundation for the plaintiff's wrongful dismissal and human rights claims.

The court found that while it was not certain the lawyer would be called as a witness, she was so closely connected to the material facts underlying the action that she was compromised as an advocate.

The lawyer's own words were at the heart of the dispute, putting her credibility in issue and creating a conflict between her role as counsel and participant.

The motion to remove counsel was granted.

On a summary judgment motion in a wrongful dismissal action, the court held that the employer had not clearly contracted out of the employee's common law entitlement to reasonable notice through its employment offer or internal separation policy.

Applying the Bardal factors, the court fixed reasonable notice at 10 months for a 60-year-old senior managing consultant with approximately eight years of service whose position was eliminated.

The court rejected the employer's mitigation defence, finding the employee's job search and subsequent move to self-employment were reasonable.

Damages were awarded for salary, pension contributions, and replacement benefits, less amounts already paid.