In an earlier post here, we spoke about the possibility of alleging frustration of contract when an employee is absent for a lengthy period due to illness or disability.  The doctrine was also recently relied upon outside the disability context to terminate an employee whose criminal conviction prevented him from obtaining the necessary license to continue working as a security guard.

Cowie v. Great Blue Heron Charity Casino is an Ontario case where the employee worked as a security officer in a casino from 2000. In 2007, Ontario enacted legislation requiring a security guard in a casino to hold a licence. A “clean criminal record” is needed to obtain the licence.  Cowie did not have a clean criminal record and he was terminated. The employer said the employment contract was “frustrated” because it could not be performed due to an unexpected event that neither party anticipated.

The facts then took an interesting turn. It appeared at the time of termination that it would take one or two years for Cowie to get a pardon of his criminal conviction and then get the required licence. In fact, he was able to get the pardon and licence in much less time and argued that the employer should have waited before terminating his employment.

The court sided with the employer and assessed the situation at the time of termination. It held that an employment contract is immediately frustrated when the employee can no longer legally provide the service required.