CITATION: Nielson v. Township of Morley, 2026 ONSC 3772

COURT FILE NO.: CV-23-0020-00

DATE: 2026-06-26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Bruce Nielson Plaintiff

• and -

The Corporation of the Township of Morley Defendant

D. Judson, Counsel for the Plaintiff

A. McKitrick, Counsel for the Defendant

HEARD at Fort Frances, Ontario, on June 2 and 3, 2026, in person

Madam Justice C.C.M. Siran

DECISION ON TRIAL

OVERVIEW

1On December 14, 2022, the Plaintiff, Bruce Nielson, the Public Works Superintendent, and three members of council for the Corporation of the Township of Morley (the “Township” or the “Defendant”) – Reeve Telford Advent, Councilor Jamie Beal and Councilor Paul Brown – had a meeting at the municipal garage about public works.

2Two days later, on December 16, 2022, the Plaintiff provided a letter of resignation to the Township.

3Whether this meeting was at the time was innocent, or had more ominous intentions, it gave rise to not only to the Plaintiff’s letter of resignation, but also three other complaints by the Plaintiff – a Code of Conduct Complaint, a Closed Meeting Complaint and a Ministry of Labour complaint, which have been decided in other avenues.

4What is left to decide in this proceeding is the issue of whether the Plaintiff was constructively dismissed arising from this meeting, leaving him no choice but to resign, and if so, the appropriate damages he should receive if that is the case. The Plaintiff also requests aggravated and punitive damages and a declaration that the December 14 meeting was an illegal closed meeting of counsel within the meaning of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”).

5The Defendant’s position is that the Plaintiff cannot establish a constructive dismissal and voluntarily chose to resign from his employment, disentitling him to damages. On the issue of the declaration, the Defendant argues that the issue was already determined in another venue, and the Defendants have accepted and acted upon the recommendations therein. To that end, they argue no declaration is necessary or warranted in this case.

6This matter was tried in a hybrid manner, with a Statement of Agreed Facts. The parties swore affidavits which served as their evidence-in-chief, and were then subject to cross-examination. There were four affidavits filed with attached exhibits: for the Plaintiff, Bruce Nielson, and for the Defendant – Teresa Desserre, Telford Advent, Paul Brown and Jamie Beal.

ISSUES

7To help frame the factual background, it is important to lay out the issues to be decided on the case, which I frame as follows:

(1) Can the Plaintiff prove on a balance of probabilities that the meeting and actions of the Defendant councilors on December 14, 2022, breached an essential term of the contract, resulting in a constructive dismissal?

(2) If so, what are the appropriate general damages and common law notice period?

(3) Is the Plaintiff entitled to further aggravated (Wallace damages) or punitive damages?

FACTS

8Because of how this proceeding was structured, and the differing versions of events by the parties, the facts will be broken down into 3 sections: (1) events prior to December 12, 2022; (2) events leading to the December 14 meeting; and (3) events post the December 14, 2022, meeting.

(1) Events Prior to December 12, 2022

9The most relevant agreed facts include:

• The Plaintiff was hired November 29, 2018, as the Public Works Superintendent and Operator for the Township;
• His first date of work was December 1, 2018;
• On October 24, 2022, an election was held, and Telford Advent was elected as Reeve, and Jamie Beal, Paul Brown, Andrew McCormick and Anthony Armstrong were elected Councilors.
• On November 28, 2022, Councilor Beal and Councilor Brown were appointed as chairpersons of the Roads and Public Utilities Committee of the Township, with Reeve Advent also being a member of the Committee.

10During the course of the hearing, there were also a number of uncontroversial or uncontradicted facts as follows:

• The Township has a population of approximately 493 people; however, the land area is 388.38 square kilometers, which includes 154 kilometers of road to maintain.
• In 2022, the Township had three full time employees – the Plaintiff, the Clerk-Treasurer, Teresa Desserre and the Deputy Clerk-Treasurer, Patty Brown;
• The Plaintiff was 62 years old at the time of his hiring, and 66 years old when his employment ended;
• During his time with the Township, the Plaintiff was never disciplined, written up or subject to any complaint about performance and none was alleged;
• The Plaintiff would attend and provide a report to all council meetings, then typically leave when his report was done;
• Council was sworn in on November 15, 2022, and provided a welcome package containing information about councils’ responsibilities, operations and policies;
• All the parties and witnesses were known to each other;
• The first meeting of the new council was November 28, 2022, at which time in accordance with the Townships’ usual practice, members were assigned to Committees, with the Reeve as a member of all standing Committees;
• The next meeting was on December 12, 2022, and being the only meeting in December, contained a heavy agenda;
• The Plaintiff attended the December 12, 2022, meeting and gave his report, and then left the meeting;
• No issues about snow removal were raised at the meeting which the Plaintiff was present, and no questions were asked of him during his report;
• Nearing the end of this meeting, Reeve Advent asked if there were any other issues and a discussion ensued regarding snow clearing and Public Works in the absence of the Plaintiff.

(2) Events Leading to the December 14, 2022 Meeting

11It is at this point at the end of the December 12, 2022, council meeting that the evidence of the parties starts to diverge.

12According to the Defendant’s witnesses, nearing the end of that meeting, it was mentioned that the area was expected to get significant amounts of snowfall over the coming days. No witness could recall exactly how the discussion started, but the conversation evolved into whether the Township had a spare operator to assist the Plaintiff with snow removal. The witnesses remember discussing concerns about this and that the roads had not been cleared from the prior snow that had fallen. The meeting minutes entered in the Plaintiff’s affidavit (Exhibit 2, Exhibit 5) states as follows:

Public Works Superintendent Working Conditions were discussed, as there is much snow forecasted in the next week, Council agreed that the Roads Committee should meet with the Public Works Superintendent to discuss spare operators and levels of service.

13All three of the Township’s witnesses confirmed the discussion was primarily a concern about snow clearing in light of the impending storm. In cross-examination, all denied that there was some ulterior motive having this discussion in the Plaintiff’s absence, or that they came into their roles looking to “clean house” and had concerns with the Plaintiff’s work. All three insisted that they simply wanted to ensure safe working conditions and as close to “round the clock” clearing as possible, given the large area to cover, the spareness of the population, and the need to ensure the elderly and those who worked in service industries, could have access in a timely way.

14The Township’s Clerk-Treasurer, Ms. Desserre, recalled being asked whether a spare operator had been hired, and she advised Council that she had told the Plaintiff that there were people available and willing to help, but “that the Plaintiff had not called them.”. She also deposed that there was a list of people who were willing to assist in clearing the roads and, from her understanding, it was the Plaintiff’s responsibility to ensure that he had spare operators who could help when he was away, and the Plaintiff and Council’s responsibility to find someone. It is noted that no written “list” of spare operators was produced as part of these proceedings.

15Ms. Desserre’s handwritten notes from that meeting were entered as evidence by the Plaintiff (Exhibit 2, at Exhibit 6). In those notes, the word “written” is scratched out with a “no” beside it, and instead it states only, “verbal notice – committee will talk to Bruce”. In cross-examination, she was pressed to explain why the word “notice” was used, intimating that this discussion was formal notice of a violation involving the Plaintiff as opposed to a casual conversation. She indicated the notes are her private notes and very basic, and she stated that she told council that under the Human Resources Policy, they could give verbal or written notice, to which they “… decided just to have a talk with him”. She also stated that the verbal notice seemed related to the Plaintiff not exhausting the budget for gravel in 2022, given that it was end of the year.

16These comments in the notes were of concern to the Plaintiff. It was argued by the Plaintiff that the recording of words like “written” and “verbal” implied that that Council intended on having a more serious discussion with him. They argued that the testimony by the other witnesses that the intent of the meeting was “casual” was undermined by the use of these specific words. The Plaintiff argued that these words were instead indicative of dissatisfaction of the new council with the Plaintiff’s work. As indicated, the Defendant’s witnesses deny there was formal written or verbal notice being discussed or intended by them.

17The Defendant’s witnesses also agreed there was a discussion about the unused budget for gravel on the roads that had not been used up by the Plaintiff in that year, and this was also going to be discussed with the Plaintiff, but that was not the primary reason for speaking with him. They were primarily concerned about the status of snow clearing and availability of a spare operator.

18As noted, the Plaintiff had left the December 12, 2022, meeting after his report, and was unaware that this discussion occurred. It was agreed that no one alerted the Plaintiff to this discussion. From the Defendant’s witnesses’ viewpoint, they did not think any notice was needed given that they just wanted to talk to him and offer support in finding a spare operator.

19On December 14, the Plaintiff had already arrived at work for the day when the Defendant’s witnesses say Reeve Advent attended the municipal garage around 7:00 a.m. He advised the Plaintiff that the Roads Committee wanted to have a conversation with him. Councilor Beal and Brown arrived shortly thereafter.

20The Plaintiff states that he was approached by all three, that they were going to have a meeting with him, and that there was no public notice of this meeting.

21It is agreed that the four men proceeded to the municipal garage to talk. The Plaintiff states that he was accused by Councilor Beal of being late for work and that he was not doing his job. The Plaintiff then says Reeve Advent told him he should be plowing after 1 inch, not 4 inches, a direction he says he could not follow as only the whole of Council could direct staff. He went on to say Councilor Brown told him that when he is done with plowing, he should be in the shop working on machinery and completing maintenance. He responded that he performed these tasks when needed in accordance with policy and would not work 24 hours a day.

22The Plaintiff then deposed that Councilor Brown implied he should work 24 hours a day and asked him “if he wanted to keep his job or not”. He said the conversation then turned to Councilor Brown telling him that they were all elected, advised the number of votes, and stated they were elected to “straighten out this municipality”.

23The Plaintiff’s evidence is that he took these statements to mean he was one of the problems in the municipality, and their election justified criticism of him at work. He says that Councilor Brown then interrogated him about his level of training. Finally, he says Reeve Advent criticized him for not having spent the entire roads budget in 2022.

24The Plaintiff states after explaining that the gravel work needed to be postponed until spring, that he informed the three men that he was going back to work plowing snow, and did so, logging 18 hours that day.

25Notably, at no point in his affidavit evidence did the Plaintiff make mention of any part of the discussion related to spare operators, on which I queried counsel. Given how much time was spent by the parties at trial on this, I was unclear as to whether the Plaintiff was denying that was part of the conversation or not. He did provide affidavit evidence that Council was to hire operators and suggested that past practice of the municipality was that spare operators would be “retained” by the Clerk-Treasurer. He also agreed that in his job description, he was to locate spare operators when he was ill or needed to be away for holidays. Plaintiff’s counsel confirmed that the Plaintiff did agree in his evidence that there was a conversation about spare operators during this meeting.

26The Defendant’s witnesses all denied the version of events as put forward from the Plaintiff. It was also the testimony of each witness that they did not review each other’s affidavits at any point in this proceeding and were not aware of each other’s versions of events. Each had their own take of the meeting, which at times were inconsistent with the others, which supports this assertion.

27Reeve Telford stated that he arrived first and found the Plaintiff working. He advised him that the Roads Committee wanted to have a conversation with him, and shortly after, the other two councilors arrived. He stated that the point of the conversation was to help the Plaintiff and make sure there was someone to assist him during the coming snowstorms. He did not want to see the Plaintiff working too many hours in light of the amount of snow coming and the number of roads to plow. He repeated both in his affidavit and in his cross-examination, that they were primarily concerned about people needing to move around and being plowed out in a timely way.

28Reeve Advent states that they asked the Plaintiff whether he had asked anyone to assist with snow clearing. Reeve Advent attended the prior council’s last meeting and was aware efforts had been made to find people to help and listed 3 names he believed could be called on the spare list. He stated the Plaintiff said he could not find anyone and had not contacted anyone, but that if they (the three at the meeting) could find someone, to “go for it”.

29Reeve Telford said the conversation started out fine, and none of the councilors raised their voices. At some point, he felt the Plaintiff was taking offence to the idea that he should have assistance, which he did not understand given that they were trying to help. He admitted in cross-examination that the Plaintiff was irritated but did not agree he was distressed. He said the entire meeting only lasted about 20 minutes, and that he does not recall any accusations being levied as the Plaintiff said. In his view, there was no ambush, and because of the conversation, and the Plaintiff’s acceptance of the offer to find a spare operator, he did go and make a call to locate someone.

30Similar versions came from Councilors Brown and Beal. Both were concerned that one person could not plow all the roads during a significant snowfall. They said the tone was conversational, and none of them raised their voices. They wanted to help and when the Plaintiff indicated that he could not find a spare operator, they offered to get one. They both remembered the Plaintiff saying, “go ahead”. They also denied the Plaintiff’s allegations about things being said to him, but did say they had heard complaints during the election from locals about the time taking to plow the roads, and relayed that to the Plaintiff.

31Both noted that the Plaintiff got defensive. Councilor Beal believed he heard the Plaintiff state he “…didn’t need this fucking job.”

32Councilor Beal also noted that about one hour after the discussion, the three members were in the Township office when the Plaintiff came in. He deposed there was discussion about stock piling gravel, and whether the Township would want to purchase some from the Plaintiff. He noted the Plaintiff acted normally and did not say anything about the prior discussion. Councilor Beal indicated there was a further interaction later that morning where he, Councilor Brown and the Plaintiff, discussed that the old grader had poor steer tires. The result was that the two councilors, who had some experience with these machines, went to the north garage and confirmed there was an issue. To address it, the two councilors attached chains to the front tires, something they say the Plaintiff was aware of and agreed to them doing.

33Councilor Brown noted that he has known the Plaintiff his entire life, and their families are friends. He also noted the Plaintiff is known to have a short fuse, which made it important to him to be clear at the outset that they intended on having a friendly conversation with him and brainstorm any issues, including about obtaining a spare operator.

34The parties then all went their separate ways, with the Plaintiff returning to work.

35A significant amount of time during trial was spent at this stage discussing the role of the Public Works versus the role of the councilors. There was competing evidence on who was to hire and who was to call or arrange spare operators, and much of it contradicted each other. Each party’s view also conveniently fit their personal narratives. Ultimately, some effective cross-examination made it clear it was Plaintiff’s responsibility to find replacement operators in situations where he would be unavailable, like illness or holidays. I also find this “availability” would realistically extend to the fact that he cannot plow 24 hours a day, as in the type of situation of major snow events.

36It was also clear that the actual hiring of a spare operator was the responsibility of council, and a list was kept by the Clerk-Treasurer for this purpose, whether formal or not. In considering all the evidence, I find that in practice, neither process was firmly followed by either the Plaintiff or the Defendant, and the timing, need and obtaining of a spare operator was fluid as far as who did it (the Plaintiff or the Council), which makes the most sense given the small size of the Township.

37No matter the characterization given by the Defendant’s witnesses about this conversation, it is not disputed that ultimately, the Ombudsman found this interaction in the municipal garage to be a “meeting” under the Act and contravened the open meeting rules. As a result of the recommendations made, the Township reprimanded the members involved and has amended their policies and procedures to ensure compliance with the Act with respect to open meetings and committee structures.

38I also accept that Reeve Advent, Councilor Beal and Councilor Brown, as well as the Clerk-Treasurer, did not know that their historical committee structure offended this rule, or that what occurred that day in the garage was a “meeting” under the Act at the time it occurred.

(3) Post-December 14, 2022

39After this meeting, the Reeve and two councilors testified that they went into the Township office to try and find a spare operator. They were provided with the list by Ms. Desserre of spare operators. It is unclear whether the list was verbal or in writing. Reeve Telford contacted Brad Brennen, who agreed, and did attend, to help plow that day.

40It also does not seem disputed, although the timing of the meeting appears off, that the two councilors attended the north garage to look at the front tires on the second grader, as there had been discussion about its condition in the earlier meeting, or shortly thereafter. Both said that the Plaintiff knew they were doing this and had told them to go ahead. In his affidavit, the Plaintiff stated he took this addition of the chains as an “affront” to his suitability to perform his duties but does not deny he knew, or agreed, to them doing it.

41Ms. Desserre deposed on the day following this meeting (December 15, 2022), that the Plaintiff came into the office and they had a conversation, as they often did. From her perspective, she found nothing off about his demeanor and took little notice of it. She recalls that during the conversation, the Plaintiff said something to the effect of “no one is going to tell me how to do my job. You can tell Council that I am quitting”. She told him she would not tell council that and if he was serious, he would need to provide two weeks’ notice. In cross-examination, she was unshaken in this evidence and stated that she just observed the Plaintiff to be venting, something he sometimes did and there “was nothing out of the ordinary”.

42Ms. Desserre had been working with the Plaintiff throughout his time at the Township. She noted there was nothing out of character for him in this interaction. He made no comments to her about being bullied or harassed. She stated she did not hear anything that made her think she needed to initiate a complaint, and no request, formal or otherwise, was received by her to do so.

43The Plaintiff worked 63 hours in the week of December 12-16, an average of almost 13 hours per day. No complaint or issue was made by the Plaintiff in this proceeding about the need to log long hours in his position as needed.¹

44At some point during the day of December 16, 2022, the Plaintiff typed up a letter informing the Township that he was resigning from his position effective December 30, 2022, and would be using his remaining 5 days of vacation that he had during that period.

45On Monday, December 19, 2022, Ms. Desserre picked up the mail and found the letter. She stated in her evidence that the letter was done with assistance as it was not communicated how the Plaintiff would write, in her experience. In cross-examination, the Plaintiff maintained he had no help, legal or otherwise, in writing the letter. I note that whether the Plaintiff had some assistance is not something I find carries much weight in determining the fundamental issues here.

46In the result, Ms. Desserre contacted the members of council to advise of the resignation and that a Special Meeting would need to be held given the time of year and the importance of winter road maintenance. Her notes of the meeting reflect that Councilors Brown and Beal were “hurt” as they were just trying to help, and in her evidence and during cross-examination, she herself was upset as council had hired Brad Brennan without speaking to her, and she reiterated to them that they needed to consult with her before doing so.

47Each of the witnesses for the Township was pressed in cross-examination concerning why they accepted the resignation. It was intimated by counsel that they “got what they wanted” with his resignation, the termination of the Plaintiff. All denied this and stated in one way or another that the resignation was a surprise, created a difficult situation for the Township in the middle of winter and over Christmas holidays, but that if someone wants to resign, you cannot force them to work.

48Council accepted his resignation, and following the special meeting, Ms. Desserre wrote to the Plaintiff to confirm December 22 was his last day, with the balance of the time being attributed to vacation time.

49The Plaintiff then proceeded to file three complaints through his lawyer:

a) Code of Conduct Complaints under the Municipal Conflict of Interest Act, January 20, 2023. A report of Patrick Giles, acting as integrity Commissioner was released on March 28, 2023, which recommended certain actions to the Township and reprimands for the councilors for neglecting to comply with the notice requirement for meetings.

b) Closed Meeting Complaint to the Ombudsman on January 20, 2023. A report of the Ombudsman was released November 2023, finding that the meeting needed to comply with open meeting rules and contravened the Municipal Act and providing recommendations to the Township.

c) Ministry of Labour complaint of workplace harassment on January 29, 2023. The Township was ordered to conduct a Workplace Harassment investigation, as none had been initiated. The Township did so and on June 30, 2023, a report was provided by Cheadles LLP that the complaint could not be substantiated on a balance of probabilities.

50I find it troubling that these underlying complaints demonstrate a significantly different register of alleged facts concerning the events of December 14, and given they are unsworn and the documents are hearsay, I give what is in the complaints, and in the responses of the investigators, limited weight to helping me determine the underlying facts here.

51The Plaintiff did not adduce any evidence regarding any efforts to obtain further employment. He testified he was going to retire in “a year or two”. Essentially, he drove a school bus after leaving the Township, which was something that he had previously done. Other than his initial letter of hire from November 2018, no financial information like tax returns or paystubs, were provided. It appeared that the Plaintiff left the Township and did little to seek additional work.

LEGAL FRAMEWORK

Constructive Dismissal

52The parties agree that the applicable two-part test for constructive dismissal comes from Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, at para. 32. The issues to be decided are: (a) whether an express or implied contract term has been breached; and (b) whether such a breach was sufficiently serious to constitute constructive dismissal.

53The Court of Appeal for Ontario addressed the test in Pham v. Qualified Metal Fabricators Ltd., 2023 ONCA 255, at para. 28, summarizing the ways constructive dismissal can be established as follows:

Constructive dismissal can be established by either (i) the employer’s breach of an essential term for the employment contract, or (ii) a course of conduct by the employer that established that it no longer interest to be bound by the employment contract.

54It was agreed that the Plaintiff’s case rested on whether a breach could be established on an essential term of the contract, as opposed to a course of conduct by the employer.

55With respect to the first branch of the Potter test, a review of the terms of the contract is required, which has two steps: first, the employer’s unilateral change must be found to constitute a breach of the employment contract and second, if it does constitute a breach, it must be found to substantially alter an essential term of the contract: Potter, at para. 34. Determining whether an employee has been constructively dismissed is a “highly fact driven exercise” in which the court must determine whether the changes are reasonable, and whether they are within the scope of the employee’s job description or employment contract: Potter, at para 40.

56Once it is established that a breach has occurred, the court must turn to the second step of the analysis and ask whether at the time of the breach, a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed. If the breach is minor and cannot be perceived as having substantially changed an essential term, it does not amount to constructive dismissal. The focus is on whether a course of conduct pursued by the employer “evince[s] an intention no longer to be bound by the contract”: Potter, at para. 42.

57The Plaintiff provided the case of McGuinty v. 1845035 Ontario Inc., 2020 ONCA 816, for the proposition that the Plaintiff had two options if a breach occurred: to accept the single breach or treat it as bringing the contract to an end. They argued the Plaintiff immediate resignation was evidence that he did not accept any breach and instead treated the contract at an end.

58The Defendant relied upon Gebreselassie v. VCR Active Media Ltd., 2007 CanLII 45710 (Ont. S.C.), at paras. 42-43, for the principle that where the employee severs the employment relationship by way of a voluntary resignation, the employee has no remedy by way of a wrongful dismissal. However, a valid and enforceable resignation must be clear and unequivocal, viewed contextually in the totality of circumstances, and where a reasonable person viewing the matter objectively would have understood the employee resigned: Gebreselassie, at para. 43.

59Once constructive dismissal is established, the parties agree that the determination of general damages needs to be assessed based on a reasonable notice period, considering the factors from Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (Ont. H.C.). In each case, the court should look at the character of the employment, the length of service, and the availability of similar employment, having regard to the experience, training and qualifications of the employee: Bardal, at p. 145.

60It was not disputed that the employment agreement did not extinguish entitlement to common law notice in this case.

61With respect to other damages, the Plaintiff relies on Honda Canada Inc. v. Keays, 2008 SCC 39, that damages resulting from the manner of dismissal will be available only if they result from circumstances described in the case of Wallace, and a type of conduct that ought to merit compensation including bad faith and unfair dealing. These damages can merit additional compensation, either by an addition to the notice period or preferably, a reflection of actual damages. This is contrasted with punitive damages, which require that the employer’s conduct gives rise to an independent actionable wrong, and where the court seeks to punish a wrongdoer for egregious or malicious behaviour, with intentions to ultimately deter such conduct in the future.

Declarations

62It was agreed that this Court has jurisdiction to make declaratory relief under s. 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43. It is settled law that a court has the broadest judicial discretion in deciding whether to grant declaratory relief and that a court may refuse to do so even if declaratory relief has been made out.

63In their closing submissions, the Plaintiff did not strenuously argue for the declaration regarding the meeting but instead, urged me to consider the fact that the December 14 conversation was a “meeting” under the Act as further evidence of the constructive dismissal.

64As Ombudsman’s findings were not challenged by the Defendant, it seemed clear there was no issue that it was a meeting which violated the open meeting principle under the Act. Ultimately, as nothing flows to the Plaintiff from the declaration, and it was not pushed by the Plaintiff, I do not need to further consider the issues and decline to make the declaration.

ANALYSIS

65As indicated, counsel presented their cases by way of affidavit evidence in chief for their witnesses with cross-examination of the parties on same.

66Although efficient in some ways, this way of proceeding has led to difficulties in assessing the credibility of the parties to determine which version of events was more likely, particularly for the Plaintiff.

67Mr. Nielson’s affidavit evidence was problematic and his testimony in cross-examination did not assist me to gauge his credibility or resolve many inconsistencies.

68It should be noted that Mr. Nielson had obvious difficulty hearing at the start of the proceeding. We then obtained an assistive device and reminded him to ensure he could hear and ask questions of counsel during questioning if he did not. He did not interject at any point, nor did his counsel. As such, I have to believe he heard and understood the questions, which led to some problems later in his evidence on some key points where he agreed he was wrong in his affidavit evidence.

69Counsel for the Defendant first attacked the affidavit and asked whether the Plaintiff actually knew what was in it. The affidavit from paragraphs 3-18 recited certain applicable by-laws and policies which were not in issue as to their existence. Counsel asked whether he was aware of these documents and read them in entirety before attaching them, and he simply answered “yes”. Counsel seemed incredulous that he had read these documents at all or was familiar with them.

70In the result, counsel for the Defendant urges me to see this affidavit as not reflective of true evidence, but instead a calculated framing by counsel of municipal matters designed to confuse the issue of whether the Plaintiff was constructively dismissed, instead focusing on the administrative errors exposed in this event that were being perpetuated by the council at the time. At one point, he references himself as “this employee”. I tend to agree with this submission.

71Very little substance arose from the Plaintiff’s affidavit on this core issue of constructive dismissal. Only nine short paragraphs outlined the interaction. The substance was lacking – How did he feel? Was he uncomfortable returning to work? Who did he talk to? What drove him to the decision to write a resignation letter? Did it happen that night? Did he stew about it? Had he considered resigning before? None of these questions are answered at any point. This made trying to understand his actions in the context of this one interaction on December 14 very challenging.

72It also doesn’t explain to me the obvious inconsistency. The Plaintiff advanced that he felt his employment was threatened and he was forced to resign because they were interfering. But at the same time, the Plaintiff repeatedly said that it was the council’s job to hire spare operators, and he did not dispute this was a large part of what council was trying to do in this meeting. In this context, there were no changes that I can see to his fundamental duties or expectations in his job, or to his wage, hours, etc. that arose from this interaction.

73There is also the issue of the other complaints, as many of the next parts of the affidavit were copies of the complaints filed and the results. As indicated, these complaints were drafted by counsel and contain statements like “against his wishes” and “threats about his future employment” as well as words like “ambush” and “attack”. These were counsel’s words, not the Plaintiff’s, so not of much assistance to me.

74His viva voce evidence was also challenging.

75Mr. Nielson expanded on very little when asked questions in cross-examination. When he did, he would sometimes veer away to another questions, then quietly stop. He answered affirmatively the questions that demonstrated his inconsistencies in his affidavit. He admitted when his affidavit was incorrect. He admitted he was wrong when he stated that Ms. Desserre’s affidavit contained untrue or false statements. As such, the cross-examination was effective to undermine the strength of his affidavit evidence, particularly on the core issue – why did he really resign.

76Normally, these types of concessions in cross-examination may be looked upon favorably and help bolster the credibility of the witness in being frank and honest. In this case, it did not. The impression I was left with was that he had little to no memory of the incident, or although annoyed, did not feel that distressed about the incident at the time.

77At the first step of the analysis, I must determine objectively whether a breach has occurred. In my view, the Plaintiff has failed to show on a balance of probabilities that a breach has occurred. To qualify as a breach, the change must be detrimental to the employee. The evidence of both parties was that prior to the one interaction on December 14, there was no other history of issues with the parties. Nothing changed in his employment after the meeting. I remain unclear on what basis, or on what detriment, the Plaintiff relies. Even if the interaction was hostile, and not in accordance with the Act given the quorum of councilors, all I have is a bare assertion that they were going to “interfere with his work.”

78I was left with the distinct impression that I was not being told the whole story. I accept that I was receiving calculated snippets from both sides, designed to better their arguments. There are gaps in the story that make the narrative go from 0 to 100, as opposed to some background that explains how things escalated from the Plaintiff’s view so quickly. These gaps cannot be reconciled on the record in front of me – if there is history between the witnesses, within the municipality or arising from the election that laid a basis, that would have been helpful to gauge against the competing stories. Without it, I am left with assessing the escalation on the totality of evidence, which unfortunately, does not support the Plaintiff’s version of events.

79It does makes the most sense to me that the interaction was likely somewhere in between the two versions – the Plaintiff was not nearly as affronted as he now says he was, and the conversation was not nearly as casual as the Defendant witnesses suggest. However, I accept the evidence of the Defendant’s witnesses that they intended to speak to the Plaintiff about the snow clearing, and to determine what could be done to assist him in a busy time. I do not accept that they ambushed him or threatened him in any manner.

80The Plaintiff’s reaction to this meeting, and his irritation at having the conversation about the issues, did not amount to constructive dismissal. My conclusion is that the Plaintiff was fixated on any real or perceived negative comments and neglected to hear the totality of what was being said. He refused to have a conversation or accept criticism about how best to get the snow clearing done, regardless of whether they may have had a point, and truly just wanted to help. Additionally, I don’t find that the conduct of the councilors was such that a reasonable person in the circumstances would not be expected to persevere in the employment.

81To that end, I cannot find that the employer unilaterally changed the contract. Mr. Nielson continued to work, as he had done. The council members looked for another driver, something the Plaintiff repeatedly stressed in evidence was their right to do, and not his. I have trouble reconciling how that fact can then be used against the employer to suggest a fundamental change to the contract.

82I have been urged by Plaintiff’s counsel to find that even if I find that the meeting was for reasonable purposes, and not done as an ambush, that I can find constructive dismissal on the established facts that the meeting was held in violation of the Act on open meetings and notice.

83I cannot accept, nor was I provided case law to assist, that this is enough to establish a breach. In my view, no one, including the Plaintiff, would have turned their mind to that at the time. It could not have influenced any party as to their perception or intentions at that meeting. As such, in accepting that the reasons for the meeting make sense in the context, I cannot view that the fact it was in violation of the open meeting rules is sufficient to warrant finding a breach.

84I am cognizant and accept the Plaintiff’s submission that there is risk in doing so, as the rules concerning the operations of municipalities exist no matter size and scope of a municipality, but to protect the council, the employees of the townships and to offer the public full view into their operations. It may be in other circumstances and facts this argument would be successful. However, on this record, I simply cannot find a sufficient basis to do so.

85Even if I am wrong, and the Plaintiff could be found to objectively establish a breach, I cannot find he satisfies the second branch of the test. Would a reasonable person in the same situation as the employee have felt that the essential terms of the employment contract were being substantially changed?

86In the evidence, both parties stressed no history between each other regarding employment issues. There had been no verbal or written warnings. There is nothing on the evidence to suggest any changes contemplated or discussed either with, or without, the Plaintiff. They had a conversation, it may have gotten heated, he went back to work, and steps were taken to add assistance for him. Nothing rises to a level where a reasonable person on these facts would see essential contract terms being changed. I cannot accept that a reasonable person would have seen this meeting as giving rise to a substantial change.

87In my view, the Plaintiff freely resigned from his position, deciding he didn’t want the hassle or irritation anymore. I cannot find he has established that it rises to the level of a constructive dismissal at either stage of the analysis.

88As such, the Plaintiff’s claim that this was a constructive dismissal is dismissed.

89With those findings, I further dismiss the claims for infliction of mental stress and punitive or aggravated damages.

90I will note that in the alternative event where I found constructive dismissal, the Plaintiff adduced nearly no evidence regarding the appropriate notice period. I had the distinct impression that he was on the verge of retirement, and any criticism he felt from this meeting, just pushed him to it sooner. However, if I was wrong on the constructive dismissal, I would have found that the proper notice period accounting for the Bardal factors, primarily being his age, would have been one year at his 2018 salary. As a result of no evidence of mitigation, I would reduce that by half, or 6 months’ notice, less the appropriate statutory deductions.

CONCLUSION

91The Plaintiff’s claim for constructive dismissal is dismissed.

92Should the parties be unable to resolve the issue of costs, the party requesting costs can serve and file a 3-page submission on or before July 10, 2026, and the responding party can serve and file a 3-page response, within 10 days of receipt. The limit does not include relevant attachments like bills of costs or offers to settle. Should nothing be filed on or before July 10, 2026, the issue of costs will be deemed settled.

The Hon. Madam Justice C.C.M. Siran

Footnotes

1. 1Timesheets in evidence show he worked: December 12 - 8 hours; December 13 - 11 hours; December 14 - 18 hours; December 15 - 8 hours; and December 16 - 18 hours.