Medical leave did not stop the resignation clock in this case
Constructive dismissal was established. The employer still won. However, on March 13, 2026, Ontario's Labour Relations Board issued a ruling that overturned a $116,577.05 Order to Pay, not because the dismissal failed to be proven, but because the employee resigned too late. Vice-Chair Jordan Kirkness found that Lifemark Health Corp. had constructively dismissed physiotherapist and Clinic Director Makram Guirguis, and then ruled in the employer's favour. Under Ontario's Employment Standards Act, 2000, constructive dismissal alone does not trigger termination and severance entitlements. The employee must also resign in response within a reasonable period of time.
In early 2024, Lifemark closed its Cedarview Clinic in Ottawa and issued a Change Notice on March 12, 2024, relocating Guirguis to the Strandherd Clinic approximately five kilometres east, as a full-time Physiotherapist, not as Clinic Director. The Board found the unilateral removal of his leadership role, combined with inferior facilities at the new location, which was smaller overall, had a smaller gym, less private space, and was less convenient for his elderly patients near a retirement home, amounted to a constructive dismissal.
The written record Lifemark built proved decisive. On May 29, 2024, Senior Director of Human Resources Diane Reino sent Guirguis an unambiguous email: "The offer presented to you is a reasonable offer of comparable employment, and accordingly there will be no termination package presented to you if you choose not to continue with Lifemark."
That email, alongside the Change Notice and Guirguis' own written confirmation on June 5, 2024, that he was not resigning, formed the core of the record the Board examined. The question of a termination agreement was, in the Board's view, fully and conclusively answered by May 29, 2024, if not earlier.
Medical leave does not stop the clock
Guirguis commenced a medical leave on March 25, 2024, arguing it prevented him from responding earlier. The Board accepted his medical condition as a relevant factor, but concluded: "However, the evidence does not confirm that he was incapable of properly considering his new assignment during that period."
During his leave, Guirguis notified HR he would not accept roles outside Ottawa, incorporated a professional corporation, and registered it with the College of Physiotherapists of Ontario. The Board cited all three as evidence of his capacity to make decisions.
By June 5, 2024, Guirguis had been given over 12 weeks to consider the Change Notice, the terms of which had been clarified more than two months prior. His own medical note of that date confirmed he was "capable of working regular duties full time somewhere else." He confirmed in writing that day that he was not resigning. His resignation arrived by email dated June 30, 2024, effective June 28, 2024.
The text message that almost changed everything
One piece of evidence complicated Lifemark's position. On March 13, 2024, Regional Director Kimberly Wright texted Guirguis: "I believe there may be some sort of termination agreement if you don't wish to move to Strandherd…"
The Board noted that Guirguis' expectation of a termination package during his leave appeared to be based on that text. Reino's May 29 email, however, clearly confirmed no package would be offered, and the Board found the question of a termination agreement fully and conclusively answered from that point.
The Board granted Lifemark's application and ordered the Director of Employment Standards to return all monies held in trust in connection with the original Order to Pay of $116,577.05, plus administrative costs of $11,657.71. Under the Act, two conditions must be satisfied for termination and severance entitlements to arise from a constructive dismissal: the employee must be constructively dismissed, and must resign in response within a reasonable period. Failing the second condition forfeits entitlement to both termination and severance pay, regardless of whether the constructive dismissal itself occurred.
