INABILITY TO PERFORM ESSENTIAL DUTIES
In its 2018 decision in Milloy v. Complex Services Inc., the same
Court considered whether frustration of contract occurred when
an employee’s injury or illness did not render her incapable of
working completely, but rather limited her ability to perform the
essential duties of her specific role in the company.
Milloy worked for Complex Services Inc. at its Niagara casino,
initially as a hostess and later as a table games dealer. Milloy suf-fered
a work-related repetitive injury to her right shoulder and
went on disability leave. After having surgery on her shoulder, her
doctor informed her that her injury was permanent and she could
no longer work as a table games dealer. The plaintiff returned to
work on modified duties and was instructed by her employer to
apply for other positions within the casino. Milloy applied for
16 to 22 jobs at the casino, including positions that she had pre-viously
held and for which she had received excellent reviews.
However, her applications resulted in three interviews and no job
offers. Milloy’s employer subsequently released her from her mod-ified
duties, claiming that the contract had been frustrated. Milloy
brought a claim for wrongful dismissal and the employer tried to
rely on the defence of frustration.
Employing the principle that frustration cannot be relied on by an
employer where the employer is found to have caused the incident
or occurrence leading to the frustrating event, the judge rejected
the employer’s frustration defence and found it liable for wrong-ful
Although the plaintiff had an undisputed permanent injury to
her shoulder and could not work as a table games dealer, there
were many other positions within the company that she applied
for and was qualified to perform. The employer failed to provide
a convincing reason as to why the plaintiff was not hired for any
of the numerous other jobs that she applied for within the casino.
Therefore, the frustrating event was seen as the employer’s fail-ure
and/or refusal to hire the plaintiff in an alternate position,
rather than the plaintiff ’s permanent shoulder disability prevent-ing
her from working as a table games dealer. The court found that
because the employer did not accommodate the employee when it
easily could have, the employer had “self-induced” the frustration
and, therefore, could not rely on frustration as a defence.
LESSONS FOR EMPLOYERS
When considering whether an employment relationship has
been frustrated, employers not only need to consider whether the
employee may no longer be able to perform the essential duties of
their job, but also whether there is any other form of workplace
accommodation that the employer can provide. If the employer is
able to accommodate the employee in another position, but fails to
do so, it likely will not be able to rely on the defence of frustration
if the employee claims wrongful dismissal.
Furthermore, although it was not raised in this case, the Ontario
Human Rights Code requires employers to accommodate dis-abled
employees up to the point of undue hardship. If the issues
in Milloy had been framed as a human rights violation, as well as a
wrongful dismissal, then the possible award could have been much
higher, and could have involved an order to reinstate the employee
as well as monetary damages. n
Hendrik Nieuwland and Malcolm MacKillop are partners at Shields
O’Donnell MacKillop LLP.
THE PLAINTIFF RETURNED TO
WORK ON MODIFIED DUTIES
AND WAS INSTRUCTED BY HER
EMPLOYER TO APPLY FOR OTHER
POSITIONS WITHIN THE CASINO.
16 ❚ OCTOBER 2018 ❚ HR PROFESSIONAL