Employer gave working notice to employee on medical leave. Employee awarded damages equal to salary he would have earned working during the notice period.

McLeod v. 1274458 Ontario Inc. | 2017 ONSC 4073 | Ontario Superior Court of Justice

Labour and employment law — Employment law — Termination and dismissal — Notice — When notice commences

Long-term employee was injured in non-work-related motor vehicle accident and granted unpaid leave of absence from position as van driver/furniture mover — Several months later, employee's doctor provided medical certificate indicating employee would be unable to return to work for another two to three months — Employer delivered notice of termination advising employee it was ceasing operating in six months and would consider period until then to be his period of working notice — Employer also advised employee could return to work if he was able but threatened termination if he was unable to provide further medical evidence justifying his absence — Employer later offered to have employee return in part-time or customer service position — Employee returned to part-time work for a couple of days before employee ceased operations — Employee brought action for damages for wrongful dismissal and motion for summary judgment — Motion granted in part — Plaintiff was incapable of working when he received notice of termination and was, therefore, entitled to damages representing salary he would have earned had he worked during notice period — Since employer never terminated employee during that period, it must have accepted whatever medical information he provided and could not now claim that he should have returned to work earlier.