Constructive dismissal in Ontario: how to prove it before your access is cut

A unilateral, substantial change to compensation is the typical breach under the Supreme Court of Canada test; the Ontario ESA guide gives a significant reduction in salary as an example.

1. Offer letter or contract with the agreed pay (the term that was changed)
2. Pay stubs from before and after the cut (the size of the change)
3. The email, memo or message announcing the cut (that it was unilateral, and when)
4. Your compensation page in the HR portal, before and after (the employer's own record)
5. Your written objection and any reply (that you did not accept it)

The Supreme Court of Canada test names changes to work assignments; the question is whether a reasonable person in your situation would see the essential terms as substantially changed.

1. Job description or offer letter listing your role (what you were hired to do)
2. The public team page, or an org chart you were sent, before and after (the new reporting line)
3. The announcement by email, Slack or Teams (when and how it was made)
4. A public job posting for your role or your old duties (that the work continues)
5. Your written objection and any reply (that you did not accept it)

A unilateral, substantial cut to hours is a change to compensation, the typical breach under the Supreme Court of Canada test.

1. Schedules from the scheduling app, before and after (the hours you lost)
2. Pay stubs for the same weeks (the effect on your earnings)
3. Messages from your manager about the new schedule (who decided it, and when)
4. Contract or policy on hours, if any (what was agreed)
5. Your written objection and any reply (that you did not accept it)

The Supreme Court of Canada test names changes to the place of work; the Ontario ESA guide gives a significant negative change in work location as an example.

1. Contract clause on place of work, or its absence (whether a transfer was allowed)
2. The transfer notice or announcement (the change and its date)
3. The public address pages of the old and new sites (the distance involved)
4. Messages about the transfer (whether it was optional)
5. Your written objection and any reply (that you did not accept it)

The second branch of the Supreme Court of Canada test covers a course of conduct showing the employer no longer intends to be bound; the Ontario ESA guide says constructive dismissal may include harassment or abuse by the employer.

1. Messages sent to you, in full threads with dates (what was said, and by whom)
2. Your complaint to HR and the response (that the employer knew)
3. The workplace harassment policy as published to staff (the process the employer set out)
4. Notes made at the time of each incident (the pattern over time)
5. Names of people who saw it (who can confirm it)

The ESA treats a lay-off longer than a temporary lay-off as a termination, deemed to start on its first day. The basic limit is 13 weeks in any period of 20 consecutive weeks; longer periods need conditions such as continued benefits or an agreed recall, and different rules apply if you are in a union.

1. The lay-off notice and any recall date (when it started, what was promised)
2. A week-by-week record of the lay-off (whether the limit was exceeded)
3. Pay stubs and benefit statements during the lay-off (whether benefits continued)
4. Contract or agreement on lay-offs or recall (whether such a term exists)
5. Recall messages, or the lack of them (how the lay-off ended)

The ESA sets minimum notice or termination pay, and severance pay for eligible employees; the Ontario ESA guide says some employees have greater common law rights they can claim in a wrongful dismissal action.

1. The termination letter and any release or package offer (what was offered, and by when)
2. Contract termination clause, if any (what notice was agreed)
3. Pay stubs, bonus and benefit summaries (your full compensation)
4. Your HR profile with your start date and title (your length of service)
5. A public job posting for your former role (that the work continues)