Toronto, ON – August 19, 2026 – A few weeks ago, we wrote about Silva v. Royal Bank of Canada (“Silva”), where the Court awarded Ms. Silva $1.9 million for loss of earnings, $250,000 in punitive damages, and $150,000 in aggravated damages. Wilsher v. Olympic Wholesale (“Wilsher”), is another reminder for HR professionals and management teams: a for-cause termination can quickly become expensive if the employer has not tested the evidence, the workplace context, and the termination process before acting.
The Facts
Terry Wilsher was a 55-year-old Night Shift Supervisor with 17 years of service at Olympic Wholesale Company Limited, a food distribution business. On October 5, 2023, he was terminated for cause – without notice or pay in lieu – on the basis that he had committed “fraudulent activity and time theft.”
The alleged misconduct centred on an internal practice known as “clock out/top up.” Wilsher, like the Night Shift Supervisors before him, periodically edited hourly employees’ timesheets so they would receive 40 hours of pay per week, consistent with the applicable collective agreement. The practice was not written down, but the evidence showed it had been used at Olympic for many years.
Olympic took the position that the practice was unauthorized, contrary to company policy, and that Wilsher had both engaged in fraud and then lied to cover it up when confronted. Wilsher maintained he was following a long-standing company practice.
Justice Woodley, of the Ontario Superior Court of Justice, awarded Wilsher 19 months of common law reasonable notice based on his 17 years of service – but then also extended the notice period by a further 14 months because of Olympic’s bad faith and unfair dealing in the manner of dismissal, awarding a total notice period of 33 months.
Why Just Cause Failed
As we have indicated in prior articles, the threshold for just cause is high. Courts apply a contextual analysis: the misconduct must be sufficiently serious, in all the circumstances. Olympic’s case fell apart at exactly this point.
The court found that the “topping up” practice was not a rogue act by one employee – it was an entrenched, workplace-wide practice. Every Night Shift Supervisor at Olympic had done it. Named predecessors had done it. The practice existed, continuously, for many years and Wilsher followed the training and practices and did not benefit personally. And critically: Wilsher’s own replacement was terminated for the same conduct in December 2025 – confirmation that the practice had continued even after Wilsher’s dismissal. On those facts, the conduct was neither dishonest, nor misconduct that could support just cause.
Equally notable was what did not happen. None of the hourly employees who financially benefited from the top-up practice were cautioned, disciplined, or reprimanded. Only Wilsher was targeted. That selective application of discipline – singling out the supervisor while leaving all others untouched – further undermined Olympic’s position.
The Anatomy of the Bad Faith Finding
The court’s concern was not only that Olympic failed to prove just cause; it was also how Olympic got there. The employer focused on Wilsher alone, questioned him in an intimidating and one-sided manner without notice, explanation, or representation, and appeared to treat the process as a route to remove him from the business rather than as a genuine effort to understand the workplace practice.
Olympic further aggravated the situation by accusing the plaintiff of fraud and theft in his termination letter, recording his departure as a dismissal/suspension on his Record of Employment, and refusing to provide references after 17 years of service. These actions impeded the employee’s ability to obtain new employment and employment insurance benefits and caused the plaintiff embarrassment and humiliation.
However, Justice Woodley declined to award aggravated or punitive damages because the employer’s actions in dismissing the plaintiff did not rise to the required standard. Justice Woodley chose instead, reminiscent of Wallace v. United Grain Growers Ltd., to extend the notice period by 14 months based on Olympic’s bad faith and unfair dealing in the manner of dismissal.
The finding of bad faith and unfair dealing is significant, but the court’s approach to remedy is unusual. In Honda Canada Inc. v. Keays and again in Matthews v. Ocean Nutrition Canada Ltd. the Supreme Court of Canada confirmed that damages for bad faith in the manner of dismissal must be tied to proven, foreseeable harm. They should not be calculated by simply or arbitrarily extending the reasonable notice period. For that reason, Wilsher should be viewed as an exceptional decision, rather than as creating a standard 14-month “bad faith” extension. Even so, it remains a clear warning to employers: do not allege just cause unless you have carefully assessed the full context.
What have we learned from Silva and Wilsher
Together, Silva and Wilsher offer practical lessons for employers considering a for-cause termination, especially where the alleged misconduct involves a practice that has existed informally within the workplace. For HR professionals, the message is straightforward: before alleging dishonesty or serious misconduct, confirm what actually happened, what the organization knew or tolerated, and whether the response is consistent with how others have been treated.
- Audit your workplace before you act. Before alleging fraud or policy violation, ask honestly whether the conduct is truly prohibited in practice or whether it has been permitted to exist without challenge. Courts will look at what your organization has actually tolerated, not only what your policy manual says.
- Conduct a real investigation. A for-cause termination premised on misconduct requires a fair, documented, and balanced investigation. Both sides of the story must be genuinely considered. Predetermined outcomes are not investigations and courts can tell the difference.
- Treat the dismissal meeting with care. How an employee is told they are terminated matters. Confrontational, intimidating, or conclusory meetings where the decision has already been made and the employee has no real opportunity to respond create bad faith exposure.
- Get the ROE right. The ROE is a legal document with financial consequences for the departing employee. If termination for cause has not been established, the ROE must reflect that accurately. A miscoded ROE compounds the harm and will be noticed by a court assessing bad faith.
- Consistency is everything. If other employees engaged in the same conduct and were not disciplined, explain why. Selective enforcement is one of the fastest ways to undermine an otherwise defensible position.
If you are considering a for-cause termination or are managing a workplace investigation, contact Protea LLP. At Protea LLP, we work with our clients to build strategies that are legally defensible, procedurally sound, and designed to withstand legal scrutiny.
