While Canada still mourns the passing of another prominent figure, the labour and employment bar was struck by the recent loss of one of their own: respected employment lawyer, mediator, prolific author, and later member of the judiciary, the Honourable Randall Scott Echlin of the Ontario Superior Court passed away earlier in August following a valiant battle with cancer.

In a world where conditions of work so deeply affect a person’s identity and emotional wellbeing, lawyers for both employees and employers alike frequently looked to Justice Echlin’s innovative and well-reasoned decisions for developments that improved employment law as a whole.

As a tribute to Justice Echlin’s prolific yet short time on the Bench, a review of selected key decisions are discussed below.

Foreshadowing Wallace’s Demise: Yanez v. Canac Kitchens

In a decision four years ahead of its time, Echlin J. called out employee-side lawyers for their superfluous attempts to expand the law on what could ground “bad faith” notice period extensions (“Wallace damages"). 

Comparing the plaintiff’s claims of bad faith to a “kitchen sink” approach, Echlin J. took the opportunity to denounce unsubstantiated Wallace claims for what they were: “specious”, “impediments to settlement”, and drains on “valuable court time”.  While quick to point out that meritorious Wallace claims still deserved compensation, Echlin J. emphasized that deterrents should exist for claims unsupported by the facts.

Echlin J.’s comments in Yanez did not go unnoticed; indeed, four years later, the Supreme Court entirely reformulated how bad faith damages were awarded in Honda v. Keays to require proof from employees of harm actually suffered.  This new evidentiary burden plugged the proverbial drain in what Echlin J. had denounced as the “kitchen sink” approach to litigating Wallace damages.

Unpaid Suspensions Could Be Legal: Carscallen v. FRI Corp.

At common law, the unpaid suspension of non-unionized employees has traditionally triggered a constructive dismissal, as employers have no implied right to unilaterally suspend performance of the employment contract.

In Carscallen, however, Echlin J. opined that if a term empowering an employer to discipline with unpaid suspensions was expressly set out in an employment contract or policy manual and this was properly accepted by the employee, “the law may give effect to the parties’ intention.”

In light of non-unionized employers’ limited options for discipline, being the choice between an uphill battle to establish just cause or terminate with pay in lieu of notice, Echlin J. considered suspensions without pay a reasonable middle-ground.  However, in the absence of express authority to do so, Echlin J. stated in obiter that unpaid suspensions could only be lawful if the employer already had just cause for dismissal, since the unpaid suspension would then be a lesser sanction in lieu of what it could already impose.

Echlin J.’s reasons in Carscallen were later affirmed by the Ontario Court of Appeal and have been repeatedly cited by judges and arbitrators across Canada.

Cumulative Acts are “Bricks to Constitute a Just Cause Wall": Daley v. Depco

Historically, the common law of terminating for just cause was split into distinct silos according to the particular misconduct in question.  For example, some incidents, such as fraud or dishonesty, had traditionally given employers a prima facie case for terminating for cause, while others required significant culminating incidents.

In a novel decision, Echlin J. sought to unify the test for all just cause dismissals in Ontario by importing the Supreme Court’s [then] recently proclaimed “contextual approach” to terminations for dishonesty, the crux of which was to determine whether the penalty of terminating without notice was proportional to the misconduct in question.

In Daley, when assessing whether termination for just cause was proportional to the context at hand, Echlin J. gave significant weight to the meticulous steps the employer had taken under its progressive discipline policy.  Even though the final incident was a minor act of carelessness, Echlin J. held that with a well drafted and executed discipline policy, even minor misconduct, viewed cumulatively, could be enough “bricks to constitute a just cause wall.” 

Daley was celebrated for clarifying the purpose, application, and efficacy of discipline policies vis-à-vis terminating for just cause, and for importing the unified “contextual approach” into Ontario.  Like many of Echin J.’s decisions, it has also been cited in courts across Canada.

Conclusion

Although on the bench for only eight years, Justice Echlin’s influence developing the law of employment has been profound.  Whether judged by the Ontario Court of Appeal’s track record upholding his innovative decisions, or courts widely citing his employment law textbooks favourably, it is clear that the labour and employment bar will be left wondering how much more he could have contributed had Justice Echlin’s passing not been so premature.