Worker sues employer while on working notice

Wrongful dismissal cases are not always just about the cheque an employer may have to write for notice at common law. Often, they stem from a perceived sense of injustice and entitlement by the employee and the expectation that they will be treated fairly by the employer. These factors can push employees (and their lawyers) to take positions that are uncertain and may not lead to either party getting what they want.  

The Supreme Court of British Columbia’s recent decision in Adrain v. Agricom International Inc., 2025 BCSC 1842, highlights how courts navigate the tricky intersection between employer and employee rights and responsibilities, how both parties must act in good faith and how the courts will interpret a relationship from an objective third-party perspective.  

Ms. Adrain was employed by Agricom International Inc., a small private company in the agriculture industry, for more than 30 years. She was Agricom’s only employee other than its president, owner and founder.  

In April 2025, after considering the future of Agricom and his own retirement, the owner of Agricom offered Adrain the opportunity to purchase the business for the nominal amount of one dollar. The owner proposed that if Adrain chose not to purchase the business, the business would be wound down and she would remain employed until operations ended.  

Working notice shortened after employee’s demand 

After considering her options, Adrain, through her lawyer, took the position that Agricom was obligated to provide her with 24 months’ notice of the termination of her employment. Agricom responded by providing formal notice that Adrain’s employment would cease on May 31, 2026, providing her not with 24 but rather 13 months’ working notice. 

Adrain’s lawyer responded, stating that while she was willing to continue working, she might reconsider continuing to work during the working notice period and suggested the possibility of litigation if Agricom did not agree to her initial demands. When Adrain’s lawyer’s letter went unanswered by the self-imposed deadline, she filed a claim for wrongful dismissal, yet continued to show up for work for Agricom. 

One month later, Agricom terminated her employment, which was 11.5 months before the initial termination date, taking the position that her actions were a “repudiation” of the contract of employment between Adrain and Agricom. Unlike most wrongful dismissal cases, her case proceeded to trial.  

The court focused on three central questions: was there just cause for termination; did Adrain’s actions repudiate the contract of employment between herself and Agricom; and how should the court address the issue of damages.  

No just cause but employee repudiated contract 

On the issue of cause, the court found that Agricom did not have just cause to terminate Adrain’s employment, despite the demand letters and the fact that she started an action against Agricom. While commencing a claim against your employer could be grounds for cause, in this instance, there were no scandalous or inflammatory allegations, the court said. 

However, the court also went on to consider whether her decision to file a claim during her period of working notice constituted a repudiation of the contract of employment. In the analysis, the court mentioned that the British Columbia Court of Appeal had previously recognized that litigation between an employee and employer during a period of working notice was inconsistent with a harmonious working relationship, as the employer is entitled to the employee’s services during the working notice period. 

In short, the court found that Adrain’s decision to sue Agricom repudiated the contract of employment. That repudiation was accepted by Agricom by terminating her employment. However – and this is the essence of the case – the repudiation applies to ongoing employment obligations to the employer but does not, according to the court, extinguish accrued rights, including the right to reasonable notice of termination, unless the employee unilaterally resigns, which did not occur in this case. 

Given these somewhat unique circumstances, how would the court deal with the issue of damages? It had acknowledged a repudiation of contract but also recognized Adrain’s accrued right to reasonable notice at common law.  

No reasonable notice after repudiation 

The court addressed the issue by confirming the entitlement of reasonable notice in the amount of 24 months. However, the court also held that Adrain repudiated the employment contract and was therefore deemed to have failed to perform her work through 11.5 months of the working notice period, holding that she was not entitled to any compensation for those months. This reduced the employee’s entitlement to damages to 12.5 months’ compensation. A significant difference in damages.  

This case, somewhat unusually, made it to the court quite quickly. It was heard in August 2025, just four months after the employee was given notice of termination in April 2025. Given that the 12.5-month award provided Adrain with compensation for several months beyond the date of the hearing to May 2026, the court exercised its discretion and applied a contingency reduction of one month to reflect the possibility that she could re-employ within the awarded notice period, which had not yet expired.  

And here is the most interesting part: the court’s analysis resulted in wrongful dismissal damages from the date of termination through to April 2026, one month less than the working notice provided for in Agricom’s April 2025 notice of termination.  

Litigation results may vary 

This case shows that parties often run headlong into litigation without any guarantee of a result or a complete understanding of the way a third party (the courts) will look at their case. Here, the court looked at both the obligations of Agricom at common law – that is that they were expected to act in good faith and provide reasonable notice of their intention to terminate an employee’s employment – as well as the obligations of Adrain, and specifically her obligation to provide services during the period of working notice.  

What this case doesn’t say is that in every case where an employee sues their employer, it will result in a repudiation. But it does balance the obligation on the employee to think carefully about unilaterally bringing a claim to gain leverage in a potential wrongful dismissal case.  

It is a cautionary tale for both employers and employees and shows that legal leveraging and “spinning the litigation wheel” may not always garner the result you expect or hope for. 

Dasha Peregoudova is a partner and Bardia Jalayer is an associate in the Workplace Law Group at Aird & Berlis in Toronto.