Hearsay Won’t Break the Camel’s Back: A Lesson in Just Cause Evidence
Hearsay Won’t Break the Camel’s Back: A Lesson in Just Cause Evidence
Dan Wilband, May 2025
The Ontario Superior Court’s recent decision in Williamson v. Brandt Tractor Inc., 2025 ONSC 2571 offers a master class in how NOT to build a just cause termination case. It’s a tale of hearsay evidence, mitigation misunderstandings, and the high cost of cutting evidentiary corners.
The Dismissal: Trying to Break the Camel’s Back
At 56 years old, with 18 years of service, the plaintiff was hardly the perfect employee at the defendant company. As Justice Akazaki noted at the outset of his decision: “He never made it easy for himself.” The Court acknowledged his chequered history: “Several times during his career, members of the public complained about his driving. He crashed the company truck. He injured himself at least once, while demonstrating a tractor attachment to a client.”
Nevertheless, the employer “kept him on, and he was successful enough as a sales producer.”
Then came September 1, 2021, when the company terminated the plaintiff’s employment, citing “his discipline record and an August 30, 2021, incident, in which a customer expressed dissatisfaction with his handling of a sale of a piece of equipment.”
The Legal Theory: The “Last Straw” Approach
The employer relied on what employment lawyers call the “cumulative misconduct principle” - or as Justice Akazaki colourfully described it, “the theory that the final event is sufficient to ‘break the camel’s back.’” This approach allows employers to prove just cause by considering a final, culminating incident in the context of previous disciplinary issues.
There was just one problem: the company still had to prove the August incident actually warranted discipline. And that’s where their case fell apart faster than a knockoff tractor part.
The Evidence Problem: The Missing Customer
The employer’s key evidence came from the plaintiff’s manager, who testified using an email he’d sent to HR. The email detailed how a customer was upset because the employee allegedly:
Tried to get the customer to sign for equipment “we do not have”
Told the customer “just to initial the second page of the sales agreement because no one reads it anyways”
Failed to inform the finance department about the customer’s financing needs
Called the customer “8 times a day” (according to the customer)
Despite the dramatic allegations, Justice Akazaki noted that “the evidence regarding the customer’s version and the grounds for being upset was entirely hearsay. The customer did not testify. [The employer] could have summoned him.”
The Court couldn’t simply accept the manager’s note as proof of serious allegations: “[The manager’s] note satisfied neither of the requirements of necessity and reliability for admissibility of hearsay for truth of serious allegations.”
Justice Akazaki memorably observed: “The customer may have found this annoying, but the employment status of a long-time employee cannot hang in the balance of a customer’s subjective interpretation of his conduct.” Although the judge even found the employee lacked credibility on some key points, he held that did not amount to proof that the incident went precisely as the customer claimed it did.
The Mitigation Sideshow: From Sales to Parts Driver
After being terminated, the plaintiff took a lower-paying job driving a parts vehicle. The employer also tried to argue this constituted a failure to mitigate damages since he was “heading out the door into a less stressful position.”
Justice Akazaki wasn’t buying this either He wrote: “A wrongfully dismissed employee has a duty to try to mitigate damages by making reasonable best efforts to obtain a comparable position.” But crucially, “if the employee can only find a lower-paying or ranking position, as in the case of [the plaintiff], the earnings are not deductible.”
The Court noted that while “the evidence that he wanted to get out of sales supports the defence view,” the evidence on this point was “thin” and “it is the defendant’s burden to establish.” This was another strike against the employer.
The Verdict: 17 Months’ Notice
Justice Akazaki awarded damages based on a 17-month notice period, which fell between the employee’s request for 18-20 months and the employer’s suggestion of 15 months.
In an observation many litigants will find relatable, the judge noted: “Hearing [the plaintiff] at trial, I got the impression that if [the employer] had given him 12 to 15 months of pay in lieu of notice, he would have taken it. This is not, of course, a proper measure of his legal entitlement.”
Lessons for Employers
Your star witness needs to testify: If your just cause case hinges entirely on a customer complaint, make sure that customer is available to testify. Hearsay won’t cut it.
Document contemporaneously, not retroactively: Justice Akazaki accepted the manager’s email as “a contemporaneous note of his telephone conversation with the customer” - but that still wasn’t enough to prove misconduct.
Mitigation is your burden to prove: If you’re claiming an employee failed to mitigate, bring substantial evidence about that, not speculation.
Lessons for Employees
Even “difficult” employees have rights: Despite an having imperfect record, the plaintiff was still entitled to reasonable notice after 18 years of service.
Taking a lower-paying job might not harm your case: The law recognizes that sometimes any job is better than no job, and that won’t necessarily be held against you.
Challenge hearsay evidence: Insist that employers bring firsthand evidence of alleged misconduct, not secondhand accounts.
The Bottom Line
When building a just cause case, proper evidence isn’t just nice to have: it’s essential. As this case demonstrates, even a challenging employee with a messy disciplinary record and a lack of credibility can still win in court when the employer relies on uncorroborated hearsay for the “final straw.”
Or to put it another way: If you’re going to break a camel’s back, make sure you bring the actual straw to court with you.
This blog post is for informational purposes only and does not constitute legal advice. For specific guidance on employment matters, consult with an employment lawyer.