Executive Summary: Key Legal and Evidentiary Issues

• Constructive dismissal was upheld based on a pattern of mistreatment, intrusive conduct during the home visit, and pressure on the employee while she was on medical leave.
• The court confirmed that a “poisoned” or toxic work environment can ground constructive dismissal, particularly where the employer’s conduct makes continued employment intolerable.
• Evidence from the employee, her neighbour, and a friend was preferred over the employer’s account, especially regarding the home visit, text communications, and the impact on the employee’s mental health.
• Arguments that the employee condoned the conduct or abandoned her employment by applying to college were rejected, as she remained on medical leave and never returned to work.
• Human rights damages were sustained on the basis that the employee’s disability and medical leave were factors in the employer’s conduct leading to her constructive dismissal.
• The appellate court deferred to the Small Claims Court on factual findings, credibility, and damages, finding no palpable and overriding error in the constructive dismissal or Human Rights Code awards.

Facts of the employment relationship and workplace dispute

Jennifer Minkarious began working for 1788795 Ontario Inc., operating as Physical Relief Home Care, in 2015 as a personal support worker and was promoted in 2019 to Executive Assistant, reporting directly to the owner, Elaine Knight. In that role she was responsible for paperwork to bill clients, including tracking active patients and site visits, and she earned $43,000 per year for approximately 40 hours a week. In the summer of 2020, the employer became concerned that she had failed to accurately record site visits, allegedly causing non-payment for 40 visits by a major client, the Victorian Order of Nurses (VON). Around the same time, she received a negative performance review, and the Small Claims Court later found that she was under substantial stress, including from COVID, work scrutiny, and health issues. A meeting with VON was scheduled for August 31, 2020, but after Ms. Minkarious called in sick, it was rescheduled to September 21, 2020.

On the eve of the rescheduled meeting, Ms. Minkarious told Ms. Knight that she had a doctor’s appointment and would be going on leave. The exchange was heated; both parties agreed profanities were used, though they differed on the details. The next day, she produced a doctor’s note placing her on medical leave for “medical reasons.” A further tense encounter occurred when Ms. Knight insisted that she still attend the VON meeting despite the medical note, telling her she was on “thin ice,” while the employee maintained that her leave meant she could not perform work duties, including attending that meeting. Her medical leave formally began on September 21, 2020, yet she testified that she continued to receive numerous and adversarial work-related text messages from Ms. Knight while off work.

The apartment visit and alleged toxic work environment

The Small Claims Court and the Divisional Court treated the employer’s unannounced visit to the employee’s apartment on September 22, 2020 as a central event. Ms. Knight said she went only to retrieve a company cellphone that had not been returned, and she portrayed the visit as brief and non-confrontational. In contrast, Ms. Minkarious testified that Ms. Knight arrived unexpectedly, opened the apartment door fully, walked in without invitation, and demanded the work phone while questioning her medical leave. She said Ms. Knight tried to grab the phone, blocked her from leaving the room with it, “hovered” over her while she attempted to remove personal data, and that she ultimately performed a factory reset to wipe the phone before handing it over. She also testified that Ms. Knight’s vehicle boxed in her own car and that the encounter left her very upset. A neighbour corroborated parts of her account, including raised voices and the location of Ms. Knight’s car.

The Deputy Judge preferred the evidence of the employee and her neighbour over Ms. Knight’s version, characterizing the home visit as “inappropriate” and part of a broader course of mistreatment. The judge also noted that Ms. Knight “scoured” the work phone for personal messages, including a text between the employee and her sister about her unhappiness, and then used that private text against her at trial without acknowledging the privacy implications of having accessed and confronted her about it. Shortly after the medical leave began, Ms. Knight sent a text threatening legal action if the employee made slanderous comments about the company and continued to press her with questions about her medical condition and test results. These events, together with repeated demands that she attend meetings while on leave, were treated as part of a pattern of conduct that created a toxic or “poisoned” work environment.

Medical leave, schooling plans, and the employer’s reaction

During her medical leave, Ms. Minkarious testified that she felt pressured by Ms. Knight’s continuing inquiries, including a distressing phone call while she was grocery shopping in which Ms. Knight demanded to know when she would return to work. A friend present during that call confirmed its upsetting impact. On November 20, 2020, the employer promoted another employee over her, which Ms. Knight said was necessary to keep the business functioning. Meanwhile, the employee had applied in September 2020 to Conestoga College’s Business Administration program and accepted an admission offer on September 29, 2020. She later began full-time studies in January 2021. She did not tell the employer about these plans at the time, and the employer learned of them only through the litigation. The employee’s evidence was that even after applying and accepting, she had not firmly decided she would attend.

From the employer’s perspective, these steps suggested that the employee intended to leave and that her medical leave was a device to avoid addressing the VON billing issue. Ms. Knight remained frustrated that the employee would not help resolve the billing problem and viewed the lack of communication about her return date as evidence of abandonment or dishonesty. However, the Small Claims Court found that the employer’s conduct, rather than the employee’s educational plans, was what led to the end of the employment relationship. Importantly, the employee never returned to work after going off on medical leave and never expressly resigned.

Small Claims Court decision on constructive dismissal and human rights

The Small Claims Court concluded that the employee had been constructively dismissed. Relying on the Supreme Court of Canada’s decision in Potter v. New Brunswick Legal Aid Services Commission, the Deputy Judge applied the branch of constructive dismissal dealing with a “series of acts” that demonstrates an employer’s intention no longer to be bound by the employment contract. He found that Ms. Knight’s conduct on September 21–23, 2020 and in the following weeks—particularly the apartment visit, intrusive questioning, threats of legal action, and pressure while the employee was on medical leave—collectively created a toxic work environment that made continued employment intolerable. This, in his view, amounted to constructive dismissal through a poisoned workplace.

The employer argued that the employee had to elect within a reasonable time whether to treat the relationship as terminated and that by waiting several months before suing, she condoned the conduct. The Deputy Judge rejected this contention, essentially finding that her emotional state, the seriousness of the employer’s misconduct, and the fact that she remained on medical leave meant she was justified in not formally communicating a repudiation sooner. He also dismissed the employer’s position that she had abandoned her job, noting that she had provided valid medical notes, never simply stopped attending work without explanation, and that the evidence of her college plans did not clearly and unequivocally demonstrate an intent to end the employment contract.

On damages, the Deputy Judge awarded $14,800 for constructive dismissal, applying the usual “Bardal” factors (such as length of service, age, position, and availability of similar employment) to determine a reasonable notice period. In addition, he awarded $20,000 under s. 46.1 of the Ontario Human Rights Code. He found that the employee’s disability and medical leave were among the reasons the employer treated her as it did, and that the conduct leading to her constructive dismissal was linked to her disability. Following authorities such as Wilson v. Solis Mexican Foods Inc. and Strudwick v. Applied Consumer & Clinical Evaluations Inc., he treated this amount as compensation for injury to dignity, feelings, and self-respect arising from discriminatory treatment connected to her disability.

Appeal to the Divisional Court and standard of review

The employer appealed to the Divisional Court, advancing nine grounds of appeal, most of which challenged the factual findings, credibility assessments, and the legal conclusions on constructive dismissal and human rights. Justice Spencer Nicholson of the Divisional Court emphasized that appellate courts owe significant deference to trial courts on findings of fact, mixed fact and law, credibility, and discretionary decisions, particularly in the Small Claims Court context where the process is designed to be informal and efficient. The Divisional Court reiterated that it could not simply reweigh evidence or substitute its view of credibility unless there was a palpable and overriding error.

Applying this deferential standard, the Court held that the Deputy Judge’s findings—about the nature of the apartment visit, the tone and content of the text communications, the employee’s emotional state, and the reasons she did not return to work—were available on the evidence. It rejected the suggestion that the Deputy Judge had improperly allowed the employee’s counsel to give evidence during closing submissions, clarifying that counsel merely referred to notes already in evidence when answering a question from the bench about when the notice period began to run. This was argument, not new evidence.

Analysis of constructive dismissal, condonation, and abandonment

On the core issue of constructive dismissal, the Divisional Court agreed that the Deputy Judge was entitled to find that the employer’s course of conduct created a poisoned workplace and made continued employment intolerable. The Court emphasized that this was not a single misstep but a pattern over several weeks: intense pressure regarding the VON error, threatening legal texts, intrusion into the employee’s home and privacy, and continued demands for participation in work matters while on medical leave. These actions objectively signaled that the employer was no longer treating the employee in a manner consistent with the employment contract.

Regarding condonation, the employer relied heavily on Persaud v. Telus Corporation to argue that six months between the initial events and the issuance of the Statement of Claim was an unreasonable delay, thereby signifying acceptance of the new terms. The Divisional Court distinguished that case, noting that in Persaud the employee continued to work under the changed conditions, whereas here the employee remained on medical leave and never went back. Drawing on McGuinty v. 1845035 Ontario Inc., the Court accepted that where the very conduct that constitutes constructive dismissal also renders the employee unable to return to work, it is much harder to infer condonation from the passage of time alone. The Court found that serving the Statement of Claim within that period was sufficient, clear communication that she treated the contract as terminated.

On abandonment, the Court held that the legal test requires conduct or statements that clearly and unequivocally signal an intention not to be bound by the employment contract. The employee’s application to and acceptance of a college program did not meet that standard, especially when set against contemporaneous medical notes that placed her on leave. The Court observed that an employee is not legally obliged to disclose every future plan immediately and that there is nothing inherently improper about exploring education options while still weighing whether to return to work, provided that the employee remains forthright about her current status. Once the Deputy Judge accepted the constructive dismissal theory, he could not also find abandonment; the two are mutually exclusive legal characterizations of how the relationship ended.

Human Rights Code damages and the role of disability

The Divisional Court upheld the $20,000 award under s. 46.1 of the Ontario Human Rights Code. It agreed with the Deputy Judge that the employee’s disability and resulting medical leave were at least a factor in how she was treated, including the pressure to return, intrusive questions about her health, and the overall pattern of conduct that led to her constructive dismissal. Relying on Wilson and Strudwick, the Court confirmed that a disability need not be the sole or primary reason for adverse treatment; it is enough that it is one of the reasons motivating the employer’s actions. The Court also addressed the employer’s reliance on authorities emphasizing that accommodation is a “two-way street,” noting that in this case, the dispute was not about a failed graduated return-to-work plan—her doctor had not cleared her for work at all. Instead, the issue was whether the employer’s hostile and privacy-invading conduct, intertwined with skepticism about her medical leave, violated her right to equal treatment in employment without discrimination on the basis of disability.

Justice Nicholson concluded that the Deputy Judge correctly identified the legal framework for Code damages and reasonably assessed the quantum. The $20,000 figure fell within the established range for similar fact patterns, reflecting the seriousness of the conduct, the emotional impact on the employee, and the dignity and privacy interests at stake.

Outcome of the appeal and overall result

In the end, the Divisional Court dismissed all nine grounds of appeal. It upheld the finding that Ms. Minkarious was constructively dismissed in a toxic work environment, rejected arguments of condonation and abandonment, and affirmed both the wrongful dismissal damages and the Human Rights Code award. The original Small Claims Court judgment remained intact, with total damages of $14,800 for constructive dismissal plus $20,000 under the Human Rights Code, for a combined monetary award of $34,800 in favour of Ms. Minkarious. The Court also ordered that she was entitled to her costs of the appeal, but the precise amount of those costs was left either to agreement or to be determined later on written submissions, so the exact figure for costs cannot be determined from the reasons alone.