Remote work rulings raise stakes on hybrid workplaces, return-to-office plans

Nearly two years’ pay and benefits — that was the cost of one Ontario employer’s mandate for an employee to return to the office full-time after two decades with a hybrid work arrangement. 

A British Columbia employer was on the hook for a year-and-a-half’s worth of pay for ordering a long-term employee who’d been working under a hybrid model since the advent of the pandemic, and with flexible hours for a decade, back to the office full-time. 

The 2017 Ontario case involving a pre-pandemic hybrid working model — Hagholm v. Coreio Inc. — stands as a notable example of what can happen if employers move too quickly and don’t fully consider the situations of hybrid employees. The case involved an employee who, for more than 20 years worked three days a week from home and two in the office under an arrangement rooted in a 110-kilometre commute for the employee.

When the employer tried to change this arrangement, the employee successfully claimed constructive dismissal. 

More recently, the 2025 B.C. case of Parolin v. Cressey Construction Corporation featured a long-embedded mix of remote work and flexible hours that was unilaterally replaced with a standard nine-to-five office schedule. The court also treated those changes as fundamental, leading to constructive dismissal. 

Hybrid, remote work can become a term of employment 

Employment lawyer David Whitten of Whitten and Lublin LLP in Toronto says that’s how Canadian law is now viewing long-standing hybrid and remote work when an employer wants to change the arrangement. 

“Constructive dismissal is where somebody argues there's been a fundamental change to an essential term of their employment, so if that employee has can establish that remote work was part of their employment agreement as a term of their employment going forward indefinitely, then they’ll have a constructive dismissal claim if the employer insists that they return to the office within a very short period of time,” says Whitten. 

According to Whitten, the takeaway for HR is that remote and hybrid arrangements quickly move beyond “perk” status. Once employees have worked from home for years with the employer’s blessing, courts may see that pattern as part of the bargain, whether or not it was written down, he says. 

Hybrid and RTO plans that can withstand legal scrutiny 

The cases highlight how poorly planned return-to-office efforts can collide with constructive dismissal law. In both, employers tried to move quickly from well-established remote patterns to much more rigid, in-person expectations. 

Whitten says the law gives employers room to change their remote and hybrid models, but only if they mirror how they would handle a termination. 

“The best way to do it is to provide a reasonable notice of the return to work,” he says. “How much is reasonable notice? Well, the courts have said it’s similar to the notice that you would have to provide if you terminated the employee, because you're effectively terminating their existing work from a remote work arrangement and asking them to return to the office.” 

That means HR may have to plan return-to-office transitions on timelines measured in months, not weeks, especially for long-service staff, says Whitten, who adds that written notice should spell out what’s changing, when it will change, and what support the organization might offer around things like commuting, childcare, or relocation. 

Structure remote arrangements from beginning 

Lori Brienza, an employment lawyer at Matthews Dinsdale in Calgary, says that the biggest misstep she sees for employers is failing to structure remote arrangements from the beginning. 

“The best mitigation tool is to paper it properly from the outset,” she says. “If not, then the best thing to mitigate against that risk is to provide ample notice to the employee — give sufficient notice of the return to work and be flexible in terms of what a particular employee's needs might be in order to be able to accomplish a return to work.” 

Brienza suggests two parallel tracks for changing remote and hybrid work practices — going forward, remote work should be implemented only with clear written terms that reserve the employer’s discretion to modify or end the arrangement, and for existing remote staff, any shift toward more in-office time should be approached like a significant contractual change, with legal input on notice periods and communication. 

Jurisdiction, safety, and ‘work from anywhere’ models 

Beyond constructive dismissal, both lawyers agree that the physical location of a remote employee shapes the level of risk. 

Those realities are amplified when organizations hire outside their home province or country. Whitten says HR needs to start with the basic question of which employment standards legislation applies when someone lives and works elsewhere. “In Canada, the jurisdiction that applies is where the employee is actually physically based,” he says. 

That principle affects hours-of-work rules, vacation minimums, overtime and termination entitlements, as well as workers’ compensation registration, says Whitten, so organizations that let staff “work from anywhere” without checking those rules may find themselves non-compliant in jurisdictions other than their own. 

Whitten also points to health and safety exposures when the workplace is a private home rather than an office. He suggests clarifying in the contract what constitutes the workplace: “When you're working remotely, the immediate work area is around [the employee’s] desk — it doesn’t include you walking the dog outside, or you going to the kitchen to get lunch, it's limited to your actual workspace.” 

Accommodation, caregiving, and human rights 

Remote work can also overlap with human rights accommodation requests related to disability and family status, especially when employees resist a return to the office, says Whitten. 

“The duty to accommodate under the human rights legislation is to the point of undue hardship, so it’s a significant obligation and it's determined on a fact-specific basis in each scenario,” he says. 

In practice, that means distinguishing between an employee’s preference and need, asking for reasonable medical or childcare information, and documenting the analysis. Whitten also points out that if an employee has successfully worked from home for an extended period, employers will need strong, evidence-based reasons to conclude that continued remote work is no longer viable. 

Making it official in the contract 

Even where no return-to-office change is planned, the themes in Parolin and Hagholm point to key message for organizations: remote work should never be casual, says Brienza. 

“Remote and hybrid work doesn't increase the legal risk by default, it's the informality that might,” she says. “You really need to create structure, clarity, and documentation that's going to support that flexibility while also protecting the organization — be clear around the expectations during these types of arrangements, both not just around productivity and performance, but also the nature or the length of the arrangement.” 

It’s particularly important is the organization isn’t anticipating that it will be a permanent and ongoing change to the employment relationship, says Brienza. “The risk of not clearly setting that out at the outset is when you mandate a return to work,” she says. “If you choose to mandate a return to work down the road, you have the risk of the employee raising a constructive dismissal claim or something of that nature, which creates legal risk for the organization — and if it's a long-term, senior-level employee, that risk increases in terms of the liability that potentially flows from it.” 

This article is part of our Monthly Spotlight series, which in January focuses on employment law. Full coverage can be found here.