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Employment - Abandonment of Employment. MINKARIOUS v. 1788795 ONTARIO INC.
In MINKARIOUS v. 1788795 ONTARIO INC. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a Small Claims Court appeal, here brought against findings that the respondent "had been constructively dismissed from her employment ... and awarded her damages for constructive dismissal of $14,800.00. He also awarded $20,000 pursuant to s. 46.1 of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”)."
Here the court considered 'abandonment' of employment:[53] The test for abandonment is met where the statements or actions of an employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract (see: Nagpal v. IBM Canada Ltd., 2021 ONCA 274 at para. 32). As noted at para. 43, the onus is on the employer to prove abandonment or resignation by the employee.
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[55] In light of the Deputy Judge’s conclusion that Ms. Minkarious had been constructively dismissed, he could not also have found that she abandoned her employment. A person who abandons their employment cannot also be constructively dismissed. It is one or the other (see: Gebreselassie v. VCR Active Media Ltd., 2007 CarswellOnt 6969 at para. 58). Hence, the trial judge clearly rejected the abandonment argument when he accepted the constructive dismissal. . Nagpal v. IBM Canada Ltd.
In Nagpal v. IBM Canada Ltd. (Ont CA, 2021) the Court of Appeal succinctly states the test for abandonment of employment:[32] The test for abandonment by contrast, is whether the statements or actions of an employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract and, in particular, the implied term of every employment contract that the employee must attend work unless excused or unable: Betts v. IBM Canada Ltd., 2015 ONSC 5298, 2016 C.L.L.C. 210-003 (“Betts (ONSC)”), at para. 57, aff’d 2016 ONSC 2496, 31 C.C.E.L. (4th) 60 (Div. Ct.) (“Betts (Div. Ct.)”); Pereira v. The Business Depot Ltd., 2009 BCSC 1178, at para. 29, rev’d on other grounds, 2011 BCCA 361, 20 B.C.L.R. (5th) 295.
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