The Plaintiff, Edward Rooney (“Mr. Rooney”), claimed that he was constructively dismissed by the Defendant, GSL Chev City (“GSL”). Mr. Rooney claimed that GSL changed the nature of his employment without any increase in compensation. GSL responded that there was no substantial unilateral change in Mr. Rooney’s terms of employment and that it was entitled to reasonably discipline Mr. Rooney including suspending him without pay. The Trial for this matter took place in November 2022.

Mr. Rooney secretly recorded discussions between himself and his supervisors concerning disciplinary actions that GSL had taken against him and changes to his role at GSL. At the commencement of Trial, GSL sought permission to amend its Statement of Defence to allege that Mr. Rooney was dismissed for cause. GSL sought this based on its argument that the secret recording of his supervisors breached the terms of his employment.

The Court considered Rule 3.65. GSL contended that amendment should be allowed because there was no prejudice to the Plaintiff: Mr. Rooney knew about GSL’s concerns with the recording, as the recordings were explored in Questioning. On the other hand, Mr. Rooney submitted that amendment should not be allowed more than 12 years after the termination of the employment relationship and commencement of legal proceedings. Counsel for Mr. Rooney further submitted that he would have adopted a different approach to Questioning and Trial if termination for cause had been pleaded.

Justice Feasby denied the Application to amend GSL’s Statement of Defence because of GSL’s inordinate delay in seeking an amendment, and noting the intrinsic difference between litigating a constructive dismissal claim versus a dismissal with cause claim. The Court noted that character of employment dismissal litigation changes when there is an allegation of termination for cause, as it raises both the financial and reputational stakes for the former employee. A former employee facing an allegation of termination for cause may adopt different litigation and settlement strategies than the former employee would have in litigation without an allegation of termination for cause.