An Illness/Injury Has Made It Unable To Return To Work: What Can I Do?

• Published date: 18 June 2020
• Author: Mr Marty Rabinovitch
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Contract of Employment, Discrimination, Disability & Sexual Harassment, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Devry Smith Frank LLP

If an injury or illness has resulted in there being no reasonable likelihood that you will be able to return to work within the foreseeable future, you may be entitled to compensation.

The recent Ontario Superior Court of Justice decision, Hoekstra v. Rehability Occupational Therapy Inc., 2019 ONSC 562, sets out new guidelines on frustration of contract in the workplace. This potentially entitles employees to compensation if they have been injured or are suffering from an illness making it unfeasible to return to work.

Frustration of contract

What is frustration of contract? Frustration occurs where due to an unanticipated, intervening event beyond the control of the parties, a contractual obligation, if performed, would be radically different in character from what was initially agreed upon (see Amalgamated Investment and Property Co Ltd v John Walker & Sons Ltd [1977] 1 WLR 164 Eng. Ct. A.). Normally, frustration relieves both parties of any obligations they have under the contract.

Frustration under the Employment Standards Act ("ESA")

Frustration operates somewhat differently in the context of employment law. Under section 2 of regulation 288/01 of the ESA, where a contract of employment is frustrated due to illness or injury, the employer remains obligated to pay the employee's minimum termination pay and severance pay as of the date of frustration.

In Hoekstra, cited above, the plaintiff had not performed any employment duties for four years due to a severe illness that forced him to go on medical leave. As a result, an employment dispute ensued, stemming from the employer's refusal to pay further medical benefits. The medical condition eventually shifted from being merely temporary to being a permanent disability, and thereby rendered him incapable of engaging in required work at his...