Employer Found to Have Discriminated After Confronting Employee at Home

Written on behalf of Peter McSherry

Employees who take medical leave often find themselves in a vulnerable position. While Ontario law recognizes the legitimacy of medically supported absences, disputes frequently arise when employers question the leave, pressure employees to return prematurely, or continue workplace demands during periods of illness. In Minkarious v. 1788795 Ontario Inc. (c.o.b. Physical Relief Home Care), the Ontario Divisional Court confirmed that such conduct can amount to constructive dismissal and disability-based discrimination, even in the absence of an express termination.

The decision is significant for employees who experience escalating hostility after asserting medical limitations. It confirms that a pattern of intrusive, intimidating, or disrespectful conduct, especially where it intersects with an employee’s disability, can poison the employment relationship and justify a claim for both wrongful dismissal damages and compensation under the Ontario Human Rights Code.

Employee Went on Medical Leave Amidst Increasing Workplace Tensions

The employee worked for a small home-care company for several years, initially as a personal support worker and later as an executive assistant reporting directly to the company’s principal. Her role involved administrative and billing responsibilities, including tracking client visits necessary for invoicing. She worked full-time and earned an annual salary of approximately $43,000.

In mid-2020, during the height of the COVID-19 pandemic, workplace tensions arose following a negative performance review and concerns raised by the employer about billing errors related to client site visits. These issues culminated in a scheduled meeting with a major client. Shortly before the meeting, the employee advised that she was unwell and subsequently provided a physician’s note, which placed her on medical leave for unspecified medical reasons.

Employer Conduct During Medical Leave

The court’s analysis centred not on a single incident, but on a series of actions that unfolded after the employee commenced medical leave. Evidence presented to the Small Claims Court included repeated work-related messages sent to the employee during her leave, some of which were described as having an adversarial tone. The employer also continued pressing for attendance at meetings despite the medical note indicating that the employee was unable to work.

Most notably, the employer made an unannounced visit to the employee’s apartment to retrieve a company-issued cellphone. The trial judge accepted the employee’s evidence that the employer entered her home without invitation, confronted her while she was unwell, hovered while she attempted to remove personal data from the device, and blocked her vehicle with her own car. A neighbour’s testimony corroborated aspects of the employee’s account, including raised voices and the positioning of the employer’s vehicle.

The Divisional Court agreed with the trial judge that this conduct was inappropriate and intrusive. The visit was a key factor in the finding that the employment relationship had become intolerable.

The Legal Framework for Constructive Dismissal

Under Ontario law, constructive dismissal arises where an employer’s conduct demonstrates an intention to be no longer bound by the employment contract. The Supreme Court of Canada has recognized two primary pathways to constructive dismissal: a unilateral change to a fundamental term of employment, or a course of conduct that creates a toxic or poisoned work environment.

In Minkarious, the court focused on the second branch. The question was whether the employer’s cumulative actions would lead a reasonable person to conclude that continued employment was no longer possible. The Divisional Court emphasized that this assessment is contextual and fact-specific, requiring consideration of the entire course of conduct rather than isolated events.

The trial judge found that the employer’s behaviour (pressuring an employee on medical leave, invading her home, accessing personal information on a work device, and making threatening communications) collectively created a poisoned workplace. The Divisional Court held that this conclusion was well-supported by the evidence and entitled to deference on appeal.

Privacy Violations and Power Imbalances

One aspect of the decision that resonates strongly in employee-side practice is the court’s treatment of privacy violations. After retrieving the work phone, the employer reviewed personal text messages stored on the device, including communications between the employee and her sister. The employer later relied on those messages to suggest that the employee was unhappy at work and intended to leave.

The Divisional Court was unequivocal in rejecting this approach. It described the employer’s review and use of personal communications as “highly inappropriate,” particularly given the circumstances in which the phone was obtained. The court’s comments underscore that even where an employer owns a device, employees retain reasonable expectations of privacy, especially for clearly personal communications.

For employees, the decision affirms that the misuse of personal information or invasive monitoring can significantly contribute to a finding of constructive dismissal.

Medical Leave and the Myth of “Condonation”

Employers frequently argue that an employee who does not immediately resign or expressly protest workplace conduct has “condoned” the employer’s behaviour, thereby losing the right to claim constructive dismissal. In Minkarious, the employer asserted that the employee failed to make a timely election and effectively accepted the situation by remaining silent for several months.

The Divisional Court rejected this argument. It emphasized that reasonableness governs the timing of an employee’s response and that the analysis must take into account the employee’s specific circumstances. Where an employee is on medical leave due to the very conduct complained of, it is far more difficult to infer acceptance or condonation.

Notably, the court confirmed that issuing a statement of claim can itself constitute clear communication of repudiation, provided it occurs within a reasonable timeframe. The employee in this case never returned to work after going on medical leave, which further undermined any suggestion that she had accepted the employer’s conduct.

Abandonment vs. Constructive Dismissal

The employer also argued that the employee had abandoned her position by applying to and accepting admission to a college program while on leave. The Divisional Court rejected this position, noting that abandonment requires clear and unequivocal conduct demonstrating an intention to be no longer bound by the employment contract.

Applying for future education, without more, did not meet that threshold. The employee had not resigned, had not ceased communication altogether, and had provided medical documentation to support her absence. The court reaffirmed that abandonment and constructive dismissal are mutually exclusive findings; once constructive dismissal is established, abandonment cannot apply on the same facts.

Disability Discrimination and the Human Rights Code

Beyond wrongful dismissal (via constructive dismissal) damages, the case is significant for its confirmation that courts can and should award damages under the Ontario Human Rights Code where discriminatory conduct is established in a civil action. Section 46.1 of the Code permits monetary compensation for infringement of Code-protected rights, including discrimination based on disability.

The trial judge found that the employee’s disability was a factor in the employer’s conduct. The employer repeatedly questioned her medical condition, pressed for details, and expressed frustration with her absence. The Divisional Court agreed that this conduct went beyond legitimate operational concerns and crossed into discriminatory treatment.

The court upheld a $20,000 award for injury to dignity, feelings, and self-respect, noting that it fell well within the established range for Code damages in employment cases. Crucially, the court confirmed that a formal failure-to-accommodate analysis is not always required; it is sufficient that disability was one factor contributing to adverse treatment.

Practical Implications for Employees

The Minkarious decision offers several practical lessons for employees facing similar circumstances:

The Importance of Respecting Employee Medical Leaves

Employees on medical leave are entitled to be free from harassment, pressure, and intrusive demands. Medical leave does not suspend an employer’s obligation to treat employees with dignity and respect.

Employees’ Expectations of Privacy

Unannounced visits to an employee’s home, invasive monitoring of personal communications, and repeated demands for medical information can each contribute to a poisoned work environment.

Reasonable Timing of Resignation Will Vary

Employees are not required to immediately resign or confront their employer in writing while dealing with illness or emotional distress. Courts will assess the reasonableness of timing in context.

Human Rights Code Violations Can Lead to Substantial Compensation

Disability-related mistreatment can attract significant Human Rights Code damages, in addition to wrongful dismissal compensation.

Reinforcing Employee Protections in Ontario

Minkarious v. Physical Relief Home Care stands as a clear affirmation of employee protections under Ontario employment and human rights law. It confirms that constructive dismissal can arise from cumulative mistreatment, particularly where an employer responds to medical leave with hostility, intrusion, and disregard for personal boundaries.

For employees, the decision underscores that the law recognizes the realities of vulnerability during periods of illness and will not penalize workers for failing to respond “perfectly” under stress. Where employer conduct makes continued employment untenable, the courts remain prepared to intervene, both to compensate lost employment and to vindicate fundamental human rights.

Peter A. McSherry Employment Lawyer: Providing Comprehensive Advocacy to Guelph Employees

If you are experiencing pressure, harassment, or invasive conduct from your employer while on medical leave, you do not have to navigate the situation alone. Ontario employment and human rights law provides strong protections for employees whose medical needs are met with hostility or disregard. Peter A. McSherry will assess whether your circumstances amount to constructive dismissal or disability-based discrimination and help you pursue appropriate compensation and remedies. To contact Peter A. McSherry, please reach out online or call 519-821-5465.