Are There New Evidenciary Rules In Quebec For Proving Constructive Dismissal?

Introduction

Farber vs. Compagnie Royal Trust, [1997] 1 S.C.R. 846, requires that for a change in working conditions be considered constructive dismissal, the element changed must be "substantive". Clearly, substantiveness must have an objective dimension. An ex-employee Plaintiff seeking to characterise an ostensible resignation as the result of a constructive dismissal must convince the Court that the condition of employment allegedly unilaterally and illegally changed by the employer was substantive enough to warrant a conclusion of almost frustration of contract. In St-Hilaire vs. Nexxlink, 2012 QCCA 1513, Quebec's highest court seems to have suggested new evidentiary considerations to be taken account of.

Facts

Plaintiff, as a condition of coming aboard as a Senior Vice-President of the company that ultimately acquired Nexxlink Inc., had negotiated a stock option plan which at the time of his ultimate separation of employment might have accounted for $40,000 to $50,000, a sum recognized by the Court as certainly "not negligible". Indeed, the Court of Appeal recognized that when dealing with a public company in full expansion mode, such as was the case with Nexxlink, in the information technology sector, holding stock purchase options may rightly constitute a reasonable expectation of significant economic gains for senior executives.

Several years after joining the Company, Nexxlink was bought by a subsidiary of Bell Canada. A reorganisation of responsibilities followed. An announcement that the share options purchase plan and the share options that St-Hilaire held were to be cancelled, ostensibly as a result of the acquisition followed as well. Six (6) weeks after the "closing", Plaintiff resigned, alleging constructive dismissal essentially because of a series of reorganization of responsibilities. Apparently, it was only at the time of the service of his attorneys' letter of demand that the issue of the cancellation of the share option plan and share options were raised as an issue.

Plaintiff sued seeking some $500,000 plus compensation for what he claimed was a "constructive dismissal". Having lost in first instance, Plaintiff sought reversal on several grounds.

The Appellate Decision

St-Hilaire first alleged that the Superior Court had wrongly taken account of evidence that showed that although there had been a redistribution of types of clients that were to be served by him, in fact, had he stayed on, this might well have led to a...