Resignation and
Wrongful Resignation

STACEY REGINALD BALL

82 SCOLLARD STREET TORONTO, ON, M5R 1G2

STACEY REGINALD BALL

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The test to determine whether an employee has resigned is an objective one – would a reasonable person have understood that the plaintiff resigned given all the surrounding circumstances?

UNEQUIVOCAL EVIDENCE

Areas of Employment Law

Employees may resign from their place of work for any number of reasons. See Assouline v. Ogivar Inc. (1991), 39 C.C.E.L. 100 (B.C.S.C.) There must be clear and unequivocal evidence that the employee has actually resigned, or else an employer may find themselves in trouble. Further, the resignation must be given freely and voluntarily. An employee who “resigns” because their employer demands it is not considered to have resigned at all under the law. Like many areas of employment law, the particular circumstances of an individual’s resignation are crucially important. For example, an emotional and spontaneous outburst of “I quit!” and a comment that an employee as going to start looking for new employment was found to be insufficient to terminate an 11 year employment relationship.

See Widmeyer v. Municipal Enterprises Ltd. (1991), 36 C.C.E.L. 237 and Lelievre v. Commerce and Industry Insurance Co. of Canada (2007), 57 C.C.E.L. (3d) 31 (B.C.S.C.). As another example, if the parties do not agree on an exact termination date, it is less likely that the courts will find a valid resignation. See Moore v. University of western Ontario (1985), 8 C.C.E.L. 157 (Ont. H.C.J.). An employee who has properly resigned is able to change their mind, unless the employer has acted to its detriment on the employee’s expressed intention to resign. See Robinson v. Team Cooperheat-MQS Canada Inc. (2008), 67 C.C.E.L. (3d) 219 (Alta. Q.B.) and Lelievre v. Commerce and Industry Insurance Co. of Canada (2007), 57 C.C.E.L. (3d) 31 (B.C.S.C.) for recent Canadian cases on this point.

Wrongful Resignation

The length of notice that a resigning employee must give is not the same as the amount of reasonable notice an employer is required to provide to a terminated employee. The length will be impacted by factors such as the employee’s responsibilities, length of service, salary and the time it will take the employer to replace the employee. An employee who fails to provide proper notice of resignation to their employee may constitute a wrongful resignation. The point, after all, is to allow the employer time to find a replacement for the resigning employee. An employee may be breaching their contractual obligations under an employment agreement or collective bargaining agreement, or they may even be breaching their fiduciary duty to the employer.

See GasTOPS Ltd. v. Forsyth, [2009] O.J. No. 3969 (Ont. S.C.J.). Further, if an employee fails to provide reasonable notice, the employer may have an action for damages. If an employer claims damages, they must show evidence of a loss and they must demonstrate that they mitigated their loss. Please note that the above information does not constitute legal advice. It is general information about the law. If you require legal advice and assistance in an employment or labour matter, please contact the experts at Ball Professional Corporation.

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Canadian Employment Law

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“ Stacey Ball is the ultimate in employment lawyers. He got me an excellent settlement and I referred him to fellow long term employees whom I know were very happy in their outcome. I cannot recommend him enough; his name alone will give you clout. This is the guy who wrote the book. He is the best. ”
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“ Stacey Ball is the best employment lawyer you can have on your side in Toronto. There is no employment lawyer representing employees with a stronger track record than him. In my experience, he gets the results that meet your needs, even against the most stubborn employers. Had I not gone with Stacey, I would have gotten nothing because that was what my employer insisted on until he intervened on my behalf. He is the best and top employment lawyer. ”
- James Yu, Toronto, ON

“ I first used Stacey over a decade ago to review personal and business employment contracts. Stacey is arguably the best employment law lawyer in both Canada and south of the border. His intimate knowledge of the law is second to none. He is readily available for any situation which requires a quick, frank and authentic response. I would highly recommend him for both individuals and organizations alike.​ ”
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