A 33-Month Severance Award: What Wilsher v. Olympic Wholesale Means for Employees Fired for Cause

An Ontario court has awarded 33 months of severance to an employee his employer fired for what it called fraudulent activity and time theft. The Superior Court of Justice found the employer proved no just cause in Wilsher v. Olympic Wholesale, 2026 ONSC 3620, because the conduct it complained of had been standard practice at the workplace for nearly two decades. The Court then extended the notice period by more than a year because of how the employer handled the dismissal.

The decision is worth understanding for any employee facing a cause allegation, because it shows both halves of the analysis working. The employer's characterisation of the conduct failed, and its conduct during the investigation added to what it owed. Employees who want to see how a notice period is built can estimate the common law severance range for their own age, tenure, and role.

What did the court decide in Wilsher v. Olympic Wholesale?

The Court rejected the just cause allegation and awarded a total notice period of 33 months. It found 19 months of common law reasonable notice appropriate on the Bardal factors, then added a further 14 months for the employer's bad faith and unfair dealing. It also ordered the employer to correct the Record of Employment, and it declined to award aggravated or punitive damages.

The employee was 55 years old at termination, with 17 years of service and 8 years as a night shift supervisor. He earned roughly $62,000 a year plus benefits. His employer, a food distribution company, fired him in October 2023 after another supervisor reported that he had been adjusting employees' timesheets.

The conduct at the centre of the case was a practice the workplace called topping up. Supervisors let night shift employees leave once their work was finished and then adjusted their recorded hours to the end of the shift, which kept them at the 40 hours per week their collective agreement guaranteed.

Why did the just cause allegation fail?

The employer could not prove the conduct was misconduct at all. The Court found that supervisors had used the topping up practice since before the employee joined the company, that it continued after his termination, and that it had operated for at least 19 years. The employee followed the practice he had been trained in, using his own login, without concealment and without personal benefit.

The training record mattered as much as the practice. The employee received no job description, no policy, no procedure, and no training manual when he became a supervisor. His entire preparation consisted of shadowing another supervisor for a few nights, and that supervisor showed him how to log into the time management system and add hours to employees' timesheets.

Three long-serving warehouse labourers still employed by the company corroborated his account, testifying against their own interest. Senior management denied knowing about the practice, but the Court noted that none of them worked the night shift or had direct knowledge of what happened during it.

Applying the framework from McKinley v. BC Tel, 2001 SCC 38, the Court asked whether the evidence established deceitful conduct and, if so, whether its nature and degree warranted dismissal. It answered no at the first stage, and held in the alternative that the employee had sufficient justification for the practice even if it were viewed as dishonest.

What is condonation, and why did it decide this case?

Condonation is the principle that an employer cannot rely on conduct it has accepted. Where a workplace has tolerated a practice, an employer that suddenly treats it as fireable misconduct faces the obvious question of what changed. The ESA builds the concept into its own standard, which withholds statutory entitlements only for wilful misconduct that is not trivial and has not been condoned by the employer.

In this case the Court found the employer had done more than tolerate the practice. It concluded the employer knowingly tolerated, condoned, and institutionalized it. Several facts drove that conclusion: every night shift supervisor used the practice, the edits were transparent and attributed to whoever made them, payroll staff had access to the records throughout, and the practice continued after the dismissal.

One detail carried particular weight. The supervisor who reported the employee later took over his job, and the company fired that supervisor for the same practice in December 2025, shortly before trial. The Court treated this as evidence that the employer had not been trying to correct the practice at all.

What did the court say about the employer's investigation?

The Court found the investigation targeted one employee rather than examining the practice. The employer reviewed only this supervisor's timesheet edits and audited no other supervisor, questioned no other supervisor about the practice, and disciplined none of the employees who received the topped-up hours. When asked why, the company president said it was not required to prove the employee's case.

The interview itself drew sharper criticism. Management called the employee into a room without notice, without explanation, and without an opportunity to prepare, questioned him about the edits, then interviewed labourers and called him back to confront him with their answers. The Court described the meeting as high-handed, one-sided, and biased, intended to intimidate, and said it resembled an interrogation rather than an investigation.

The Court also noted that when the employee told management the practice was allowed, no one asked him a follow-up question. He was told he had admitted to fraud and was fired that day, after 17 years without a single complaint, warning, or negative review.

The manager who began the investigation acknowledged a negative relationship with the employee, which the Court found contributed to the appearance that he had been singled out.

Why did the notice period grow from 19 months to 33?

The Court extended the notice period because the employer's conduct during the dismissal caused injury beyond the dismissal itself. Under the principle from Wallace v. United Grain Growers Ltd., bad faith or unfair dealing in the course of a dismissal can leave an employer liable for the resulting humiliation, embarrassment, and damage to self-worth.

Conduct that impairs the employee's ability to find new work is particularly deserving of that remedy, and intangible injuries causing emotional damage can attract it as well.

Five findings supported the extension. The investigation targeted the employee without examining the practice. No other supervisor was investigated or audited. The interview functioned as an interrogation. The replacement's later termination for the same conduct showed the employer had not acted to correct the practice. And the termination letter accused the employee of fraudulent behaviour and theft of time while the Record of Employment recorded dismissal or suspension, which prevented him from obtaining employment benefits.

The consequences for the job search were concrete. The employee applied for work from the month of his termination through to trial without success, and the Court accepted that the absence of any reference after 17 years, combined with the label of thief, damaged his ability to mitigate. The Court ordered the Record of Employment corrected.

Why did the court refuse aggravated and punitive damages?

Both remedies require more than the Court found here, and it held that extending the notice period already answered the injury. Aggravated damages generally require conduct that is independently actionable and a wrong separate from the failure to give reasonable notice. Punitive damages require conduct that is harsh, vindictive, reprehensible, or malicious, together with an independent actionable wrong.

The distinction is worth noting, because it shows an employer can avoid both of those labels and still pay substantially more. The Court was explicit that damages in this case warranted an extension of the notice period rather than a separate award, and it granted that extension in full.

What does this decision show employees facing a cause allegation?

It shows how much the surrounding record matters when an employer alleges cause. The employer here had a genuine-sounding allegation, a documentary trail of timesheet edits, and an admission that the employee made them. It still lost, because context defeated the characterisation: the practice was universal, longstanding, transparent, untrained-against, and continued after the firing.

The for-cause standard in Ontario places the burden on the employer at every stage. It must prove the conduct happened and prove that dismissal was a proportionate response. This decision illustrates both failures at once, and it shows the ESA's separate wilful misconduct standard doing its own work, since a practice the employer condoned cannot meet it.

The employer in this case did not rely on a termination clause, but many do, and the enforceability of that clause changed in 2026 with the Baker, Li, and Wigdor decisions. The investigation findings carry a second lesson. How an employer builds its case affects what it owes even when the case fails, so the conduct of a workplace investigation is part of the claim rather than background to it.

Would an employee in a similar position receive 33 months?

No reader should treat this award as a benchmark. The 19-month base reflected a specific profile: a 55-year-old supervisor with 17 years of service who could not find comparable work while carrying a fraud allegation and no reference. The additional 14 months responded to particular employer conduct that the Court set out finding by finding.

Ontario courts assess every notice period on its own facts through the Bardal factors of age, length of service, character of employment, and availability of similar work, and awards above 24 months remain exceptional. The common law range for any given employee depends on that employee's circumstances, not on the highest reported award. What transfers from this case is the reasoning rather than the number.

Frequently Asked Questions

Q1: What did the court decide in Wilsher v. Olympic Wholesale?

The Ontario Superior Court of Justice rejected the employer's just cause allegation and awarded a total notice period of 33 months. The employee was 55 years old with 17 years of service, 8 of them as a night shift supervisor, when his employer fired him for what it called fraudulent activity and time theft. The Court found the employer failed to prove just cause, awarded 19 months of common law reasonable notice on the Bardal factors, and added a further 14 months because of the employer's bad faith and unfair dealing. The Court also ordered the employer to correct the Record of Employment.

Q2: How did condonation defeat the time theft allegation?

The Court found the practice the employer called time theft was an ingrained institutional practice at the workplace. Supervisors had let night shift employees leave early once their work was done and then topped their hours up to the end of the shift for at least 19 years, before the employee was promoted and after he was fired. He received no job description, no written policy, and no training beyond shadowing another supervisor who showed him how to make the edits. On those facts the Court held the employer knowingly tolerated, condoned, and institutionalized the practice.

Q3: Why did the notice period grow from 19 months to 33?

The Court found the employer's conduct during the dismissal caused separate injury that warranted extending the notice period. The investigation targeted this employee alone while no other supervisor was questioned or audited, the meeting resembled an interrogation conducted without notice or explanation, the termination letter accused him of fraud and theft of time, and the Record of Employment recorded dismissal or suspension, which blocked employment benefits and hindered his job search. The Court added 14 months on top of the 19 it had already awarded.

Q4: Why did the court refuse aggravated and punitive damages?

The Court held that the employer's conduct did not reach the threshold either remedy requires, and that extending the notice period already compensated the injury. Aggravated damages generally require conduct that is independently actionable and a wrong separate from the failure to give reasonable notice. Punitive damages require conduct that is harsh, vindictive, reprehensible, or malicious, plus an independent actionable wrong, and they are unavailable where compensatory damages already answer the conduct. An employer can avoid both and still face a substantially longer notice period.

Q5: Would an employee in a similar position receive 33 months?

No employee should read this award as a benchmark, because it rested on an unusual combination of facts. The 19-month base reflected the employee's age, his 17 years of service, his supervisory role, and his inability to find work while labelled a thief. The additional 14 months responded to specific employer conduct during the dismissal. Ontario courts assess every notice period on its own facts using the Bardal factors, and a different record produces a different result. Awards above 24 months remain exceptional.

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