April 27, 2015
On March 4, 2015, the Federal Court of Appeal released its decision, bringing this long-standing dispute to an end.
Mr. Donaldson claimed constructive dismissal under the Canada Labour Code in November 2007. He asserted the employer’s request for a “better doctor’s note”, before allowing him to return to work after a five and a half (5 ½) month absence due to illness, posed an unreasonable bar to his return to work or otherwise indicated an intent to terminate his employment.
Mr. Donaldson had left the workplace in May 2007, was immediately hospitalized for eleven (11) days and then filed a WSIB claim, asserting his illness was due to workplace grain dust. WSIB found no evidence of an occupational illness but did list a number of significant illnesses, evidenced in Mr. Donaldson’s medical records, in its decision letter of October 2007. Upon receipt of the WSIB decision letter and being presented with a doctor’s note, which stated only “now capable of returning to his job”, the employer requested Mr. Donaldson to provide a “better doctor’s note” regarding his fitness to return to work. Mr. Donaldson then commenced his CLC complaint of constructive dismissal and appealed the WSIB denial of his claim in 2008, again asserting his illness was due to workplace grain dust.
This matter received thirty-two (32) days of adjudication before federal adjudicator, Dr. Daniel Baum, between 2009 and 2011. Dr. Baum held the request for a “better doctor’s note” equated to constructive dismissal, given the initial decision of WSIB that Mr. Donaldson was not suffering from a workplace illness. He found the claim of a workplace illness explained the employee’s absence and the WSIB decision provided all necessary medical information to the employer to allow a return to work. He found the WSIB determination of the absence of a workplace illness equivalent to the absence of illness, despite medical disclosure at the adjudication indicating continuing hospitalizations in late 2007 and following, and the evidence of Mr. Donaldson’s appeal of the WSIB decision.
Justice de Montigny of the Federal Court of Canada granted a stay of the CLC adjudication on damages, in view of the CLC liability decision, in February 2012. In June 2012, Justice Campbell of the Federal Court allowed the employer’s Judicial Review, holding there was no reasonable factual or legal basis for the finding of constructive dismissal or a need for a new adjudication hearing in the circumstances. Neither the facts nor the law were is dispute.
In July 2012, Mr. Donaldson appealed to the Federal Court of Appeal, asserting that Justice Campbell had erred in his ruling on constructive dismissal and in not returning the matter to the adjudicator for a re-hearing in the circumstances. On March 4, 2015, the Federal Court of Appeal upheld the decision of Justice Campbell that Western Grain By-Products Storage Ltd. did not constructively dismiss Mr. Donaldson when it requested further medical information to assure itself of his fitness before allowing him to return to a position in the grain elevator.
This case provides a cautionary tale regarding the potential length and cost of administrative proceedings, and the effects of self-representation on that system. In the end, a fundamental principle was upheld – an employer has the right to ensure evidenced fitness to return to work given its health and safety and human rights obligations – but it came at great cost for all involved.