Coca-Cola Termination Part 2: Accommodation and Undue Hardship
In Part 1 of this series, we explored the doctrine of Frustration of Contract—the legal concept Coca-Cola used to justify the termination of Shawne Hopkins, a 35-year employee of the company, following a workplace injury.
Today, we look at a related concept: the duty to accommodate. When Coca-Cola ended Mr. Hopkins' employment, they reportedly claimed that not only was the contract frustrated, but that accommodating his resulting disability had reached the point of undue hardship. But what does that actually mean in the eyes of Canadian law?
The Broad Definition of Disability
To understand the duty to accommodate, we must first understand what the law considers a "disability."
The legal definition of a disability in employment law is very broad. It has been consistently interpreted to include temporary injuries or illnesses, which could include anything from workplace injuries, any physical injuries that restrict an employee’s ability to perform their duties, mental health conditions, and ongoing chronic illnesses, to what people would ordinarily think of as a disability, whether mental or physical, and even to temporary “conditions” like pregnancy. In the landmark Supreme Court case Québec v. Montréal, 2000 SCC 27 (often referred to as the Mercier case), Justice L’Heureux-Dubé emphasized that the goal is to eliminate arbitrary exclusion:
“The purpose of Canadian human rights legislation is to protect against discrimination... its more specific objective is to eliminate exclusion that is arbitrary and based on preconceived ideas concerning personal characteristics, which... do not affect a person’s ability to do a job.”
A Dialogue of Flexibility: The Accommodation Process
The duty to accommodate isn't a one-way street; it is a collaborative process. It requires a sincere dialogue between the employer and the employee to find a solution that allows the worker to continue contributing without causing the employer undue hardship.
This could play out in any number of ways like:
Allowing an employee to work from home on days they have medical appointments;
Modifying a work schedule to allow for physical therapy; and
Lightening physical duties or providing specialized equipment.
While an employer is required to arrange the workplace or adjust duties, there are limits. They are generally not required to change the fundamental nature of the employment relationship—for example, by creating a brand-new, unproductive position that didn't previously exist.
The High Bar: What is Undue Hardship?
The central question is always: How far must an employer go? This analysis is highly context-specific. What constitutes undue hardship for one employer might be reasonable for another. Common factors include:
Financial Cost: Would the accommodation be so expensive it threatens the viability of the business?
Interchangeability of the Workforce: Can other staff members take on certain tasks?
Rights of Other Employees: Does the accommodation significantly interfere with seniority rights in a unionized environment?
The Size Factor
This is where the Coca-Cola case becomes particularly interesting. A small business with five employees performing heavy labour may find it easy to prove undue hardship if a worker can no longer lift heavy objects. There simply may be no other work available.
However, for a giant like Coca-Cola, the bar is significantly higher. The Supreme Court's 2008 Hydro-Québec decision noted:
“If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties - or even authorize staff transfers - to ensure that the employee can do his or her work, it must do so to accommodate the employee.”
In a large company, there is a much higher chance that the company will have administrative roles that do not require physical labour, allowing the company to reassign a worker to a role at around the same level or pay scale, without any other significant burden. They may face higher costs from retraining the worker, but unlike the small business that may not even have such a role, the relative burden is low.
Applying the Test
Based on the facts reported by the CBC, Mr. Hopkins was cleared by the Workers’ Compensation Board to return to work, albeit in a different role. Meaning that he we know that his disability is not so severe that it prevents him from returning to work full stop.
Given Coca-Cola’s resources and various types of positions that are likely available (both physical and administrative), it seems unlikely that a suitable role could not be made available or modified. While chronic absenteeism can eventually discharge the duty to accommodate if the employee can no longer perform the core of their job, that doesn't appear to be the situation here.
If there was no genuine attempt to find an alternative role for a 35-year employee who was medically cleared to work, the company may struggle to prove they reached the point of undue hardship.
The Missing Piece: Workers’ Compensation
In Ontario, the duty to accommodate under the Human Rights Code is only part of the story. For workplace injuries, the Workplace Safety and Insurance Act (WSIA) adds an extra layer of protection: the Statutory Duty to Re-employ.
In Part 3, we will conclude this series by looking at how Workers’ Compensation boards—and specifically the WSIB in Ontario—enforce the return-to-work process.
Facing an accommodation issue at work? Whether you are an employer trying to navigate the "undue hardship" bar or an employee being told your role can't be modified, I can help.
Disclaimer:The information provided in this blog is for informational purposes and does not constitute legal advice. If you are facing a situation involving disability or termination, please contact an employment lawyer to discuss the specifics of your case.
Coca-Cola Termination Part 1: Frustration of Contract
The recent story of Shawne Hopkins, a 35-year veteran of a Coca-Cola bottling plant in Calgary, has come as a shock to a lot of people. CBC News broke this story earlier this week on their “Go Public” investigative journalism segment. After three and a half decades of service, Mr. Hopkins was reportedly terminated via a brief phone call after sustaining serious injuries on the job. The company’s legal justification? Frustration of Contract.
While this case is unfolding in Alberta, it offers a critical teachable moment for employees and employers here in Ontario. In this first part of a three-part series, we examine the doctrine of frustration, the high bar set by the courts, and why Ontario’s legislative framework provides a safety net for injured workers. In Part 2, we will look at how the facts of this case would play out with the Duty to Accommodate under human rights law, and in Part 3 we will conclude with an overview of how Workers’ Compensation programs come into play.
The Facts
Before getting into the details of this case, we want to highlight that none of these facts have been tested in court or been determined by an arbitrator. While a grievance has reportedly been filed by the union representing Mr. Hopkins, it will likely take many months before we have a more complete picture of events, assuming this case doesn’t settle in the meantime. For this series, we will assume that the allegations as reported by the CBC are true for the sake of illustrating how the law would apply, but with the caveat that as facts change, the application of the law to the facts will also change.
According to reporting by the CBC, Mr. Hopkins was injured by a roughly 900kg door, injuring his left shoulder, arm, and neck. He claims to have brought up safety issues with the door to his employer in the past, but apparently nothing was done to rectify the safety concerns.
After two years on Workers' Compensation and undergoing surgery, he was cleared to return to work with restrictions by Alberta’s Workers’ Compensation Board (“WCB”). As part of this plan, he is receiving retraining as he still has limitations on the use of his arm.
But instead of a return-to-work plan, he was met with a claim of frustration of contract by Coca-Cola Canada Bottling Limited. When he was notified of his termination, he was offered a lump-sum payment of $2,511 in exchange for a release and non-disclosure agreement.
In a unionized environment, such as the one Mr. Hopkins worked in, the collective agreement dictates many of the procedural steps. However, the underlying principles of frustration of contract are applicable to all employment relationships under common law.
What is Frustration of Contract?
In employment law, frustration can be described as the legal death of the employment relationship. In that sense, it is unlike a termination or resignation, which occur when one party unilaterally ends the contract. Frustration occurs when an unforeseen event—which is not the fault of either party—makes the performance of the contract impossible or "radically different" from what was originally intended.
The Supreme Court of Canada established the modern test for frustration in Naylor Group Inc. v Ellis-Don Construction Ltd., 2001 SCC 58 [Naylor]. To successfully argue frustration, an employer must prove that the event giving rise to frustration:
Radically altered the contractual obligations of the parties;
Was not foreseeable and which the contract does not contemplate; and
Was not caused by the parties.
While frustration of contract can apply to any contractual relationship, we are applying the test as stated in Croke v VuPoint System Ltd., 2024 ONCA 354 [Croke], a recent decision from the Ontario Court of Appeal. The decision deals directly with the law of frustration of contract, applying Naylor, in the context of employment law.
Frustration of contract in employment law is usually the result of a permanent disability of an employee. In this context, there is an extra step in the test to determine whether an employee is permanently disabled according to the law. The important distinction is between permanent and non-permanent disability, rather than a clear-cut amount of time that has passed. In Hoekstra v Rehability Occupational Therapy Inc., 2019 ONSC 562 [Hoekstra], the court stated that this is a contextual analysis, meaning that all factors surrounding the nature of the illness and the likelihood of a return to work must be considered. Either party could assert frustration of contract a short amount of time after an illness or injury if there is no reasonable likelihood of recovery, whereas courts have recognize relatively long absences, up to five years, as temporary (Hoekstra, paras 28 and 29).
So, how does this test stack up with the facts as presented by CBC? On the face of it, because the WCB has cleared Mr. Hopkins to return to work (though with retraining for a new role), he is not so permanently disabled as to be unable to perform work for Coca-Cola. This is skipping ahead a bit to the accommodation process, but the “radical alteration” of the employment relationship from the first part of the test for frustration really means “the employee’s duty to perform work in exchange for remuneration.” (Hydro-Québec v Syndicat des employées de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000, 2008 SCC 43).
Even if we accept that the other parts of the test are met, Coca-Cola will face it’s main hurdle in proving that it could not accommodate Mr. Hopkins’ return to work under either modified duties or in another role. And even though frustration acts as an operation of law, it is up to the party alleging frustration to prove that the contract was in fact frustrated.
The Ontario Lens: The ESA and O. Reg. 288/01
But what if this were frustration of contract? One could be forgiven after reading the CBC article and worry that once your contract is frustrated, you are entitled to nothing from your employer. At least in Ontario, this is not the case.
While O Reg 288/01 generally exempts employers from paying notice or severance when a contract is frustrated, there is a critical exception to the exemption. Under sections 2(3) and 9(2)(b) of the Regulation, if the frustration is the result of an illness or injury suffered by the employee, the employer must still pay statutory termination and severance pay.
So at the very least, an employer owes statutory notice (or pay in lieu) under section 54 of the Employment Standards Act, 2000, and statutory severance under section 63 (statutory severance only applies to workplaces where either the employer has a payroll of $2.5 million or more, or if the employee is one of at least 50 employees terminated within a 6-month period with the employer).
The 35-Year Reality Check
For a long-term employee like Mr. Hopkins, the stakes are incredibly high. In Ontario, the ESA would entitle a 35-year employee to a minimum of 34 weeks (8 weeks of notice plus 26 weeks of severance). However, at common law, a 35-year tenure often pushes notice periods towards 24 months.
When an employer alleges frustration, the burden of proof lies entirely on them. If an employee has been cleared to return to work—even with restrictions—arguing that the contract is frustrated becomes a very steep uphill battle.
Coming Up Next
The claim of frustration cannot be viewed in a vacuum. It is inextricably linked to an employer's obligations to accommodate. In Part 2 of this series, we will dive into the Duty to Accommodate and the high legal threshold of Undue Hardship in Ontario.
Disclaimer:The information provided in this blog is for informational purposes and does not constitute legal advice. If you are facing a situation involving disability or termination, please contact an employment lawyer to discuss the specifics of your case.
Termination Packages: The Importance of Careful Legal Review
In the past, a termination package would be delivered to you in person, you would take it home, review it with your lawyer, and returned a signed copy. Only after going through all of those steps would you have a binding settlement. But with the business world and the legal world increasingly working with digital documents, it can be all too easy to accept an offer without thinking about it. As an employee, you may still think that until you sign a formal document, you haven’t agreed to anything.
But a brand-new decision from the Ontario Superior Court, Stribling v Starbucks Coffee Canada Inc., 2026 ONSC 1030, should warn employees just how easy it is to be bound by a termination package.
The Case: Stribling v Starbucks
Derek Stribling was a store manager at Starbucks. After some performance and health-related issues, Starbucks gave him a choice: return to work under a performance plan or accept a "voluntary mutual separation" package consisting of 8 weeks’ pay.
Mr. Stribling took time to think. He even asked for extensions to consult a lawyer. Then, on September 1, 2023, he sent an email to accept the offer of a voluntary separation. He wrote:
"I have decided to accept Starbucks' offer... including the details and compensation..."
He added that he would sign the formal release once he received it. However, after some back-and-forth over a clerical error in the paperwork (which Starbucks quickly fixed), he changed his mind. He didn't sign the release and instead sued for wrongful dismissal in November 2023.
The Court’s Verdict: A Deal is a Deal
Justice E. Iacobucci was clear: the moment Mr. Stribling hit “send" on that email, a binding contract was formed.
The court found that because the essential terms (the money and main terms) were clear and the acceptance was unequivocal, signing the formal Release wasn’t necessary to create a binding agreement.
Think about it like this: Let’s say you work for a company selling paper products, Dunder Mifflin say, and you sign a contract to sell paper to another company. The terms state that this company will owe Dunder Mifflin money as soon as you deliver the paper. But due to some reason (maybe you put the wrong price on the contract), you don’t want to be bound by the contract anymore and don’t deliver the paper. Your customer doesn’t owe you any money, but that isn’t the same thing as there not being a contract.
The Court in Stribling said essentially the same thing about the release. Mr. Stribling needed to sign a release before he could receive the payment promised under the separation agreement, but there was still an agreement that was enforceable.
The result? His lawsuit was dismissed, and the court ordered him to comply with the terms of the separation agreement.
The “Legal Advice" Gap
This case is a perfect example of why you should move with extreme caution when you receive a termination package.
Mr. Stribling mentioned he wanted to consult a lawyer, but it’s unclear if he received a full strategic assessment before sending that acceptance email.
If you are even considering litigation, do not agree to a settlement—even in principle—until a lawyer has reviewed it.
Here is why:
Email is Binding: In 2026, a casual email accepting an offer can still bind you to the terms of settlement
The Essential Terms Trap: Once you agree to the dollar amount, you are usually locked in. You lose the ability to negotiate for better tax treatment, better non-monetary terms, or a longer notice period.
Don't Hit "Send" Alone
Whether you are an employee being offered a package or an employer looking to ensure your separation agreements stick, the Stribling case is a reminder that the informal part of the process is where the real legal work happens.
Before you reply to that "Option 2" letter, make sure you know exactly what you are signing away.
The Morning After: A St. Patrick’s Day Guide to Keeping Your Job
St. Patrick’s Day is a staple of the social calendar, and for many Ontario workplaces, it’s an opportunity to blow off some steam with a team lunch or an after-hours social gathering. But while the beer might be green, the legal consequences of party fouls are black and white.
While most blogs on this topic focus on employers and how they can reduce their liability when hosting social gatherings, today we’re flipping the script. If you’re an employee heading out to a firm-sponsored event today, here’s how you can protect yourself and your career, while still enjoying the festivities.
The “Off the Clock" Myth
Many employees believe that once the laptop is shut and the first round is ordered, the workplace rules no longer apply. In Ontario, this is a dangerous misconception.
Under Section 1(1) of the Occupational Health and Safety Act (OHSA), a "workplace" is defined as “any land, premises, location or thing at, upon, in or near which a worker works.” Ontario courts interpret this broadly: if your employer is sponsoring the event, that pub or restaurant is legally your workplace for the duration of the party (for example, see Metrolinx v. Amalgamated Transit Union, Local 1587, 2025 ONCA 415, where the court held that off duty conduct could lead to disciplinary action).
Can you actually be fired for what happens at a party? The answer is a resounding yes.
In the case of Huffman v Mitchell Plastics, 2011 HRTO 1745, an employee became heavily intoxicated at a company holiday party. He made physical threats and sexually inappropriate comments to colleagues and management. He was terminated the following Monday.
The employee argued that his behaviour was a result of alcoholism (a disability under the Human Rights Code) and that the firm should have accommodated him. However, the Tribunal dismissed his claim, noting that the employee hadn't disclosed his disability or sought accommodation until after the misconduct occurred.
Under Section 32.0.7 of the OHSA, an employer must ensure an investigation is conducted into incidents of workplace harassment. This means if a complaint is made about your behaviour today, or if the company is simply aware of an incident occurring, the company doesn't have the legal option to just ignore it because "everyone was drinking"—they are statutorily required to investigate.
“Rough and Boisterous" Conduct (Yes, that's the law)
If you think the law doesn't have a sense of humor, look at Section 28(2)(c) of the OHSA. It explicitly states that a worker shall not “engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct.” While it sounds like a rule a teacher might impose on a classroom, this is a real statutory duty in Ontario. A friendly arm-wrestling match or an offhand comment to a coworker while under the influence isn’t a laughing matter—it's a breach of your legal obligations as a worker.
How to:
Treat it as a Work Function: If something you say or do would be inappropriate at work, it is inappropriate at a work event.
The Transport Plan: While the employer has a Duty of Care, the personal and legal fallout of your actions fall on you. Arrange a safe ride home.
The Monday Morning Test: Before you say it or do it, ask: "Am I comfortable explaining this to my boss in a boardroom on Monday?"
The Bottom Line: We want you to enjoy the holiday, but as employment lawyers, we’ve seen how quickly a celebration can turn into litigation. Stay safe, stay professional, and keep your green beer—and your career—intact.
Choosing the Right Workplace Investigator
When a workplace complaint arises, the goal is rarely just finding the facts. The real goal is resolution. You want to know what happened, why it happened, and how to move forward to manage your risk going forward.
While there are many paths to conducting a workplace investigation, choosing an external employment lawyer to lead the process offers three distinct strategic advantages over other options, including conducting it internally.
The Protection of Privilege
In Ontario, the results of an internal or consultant-led investigation are often "discoverable." This means that if the matter ends up in court, your investigator’s notes, emails, and final report can be used as a roadmap by the opposing side to build their case against you.
When a lawyer is retained to investigate with the specific purpose of providing legal advice, the process is wrapped in Solicitor-Client or Litigation Privilege. This allows the organization to explore sensitive issues with the confidence that the work product is protected from disclosure.
It is important to note that privilege is not automatic; in many cases, an employer wants a non-privileged, neutral report to demonstrate to a court or regulator that they acted reasonably. However, in high-stakes situations where the primary goal is to obtain legal advice to prevent recurrence, or where the dominant purpose is preparation for litigation, only a lawyer-led process can offer this level of strategic protection.
Experience with the Law
Lawyers do not just check boxes. We assess evidence through the lens of a legal professional. A lawyer-led investigation is built on the framework of the Human Rights Code, the Occupational Health and Safety Act, and common law precedents.
We have experience analyzing cases to determine whether an incident falls under categories like discrimination, workplace harassment, or workplace sexual harassment, and apply it to the facts we find throughout the investigation. By applying these legal standards to the facts, we provide more than just a summary—we provide concrete, legally-grounded recommendations to help prevent future incidents from occurring.
The Weight of True Independence
When allegations involve senior leadership or systemic culture issues, internal investigations are no longer an option. Hiring an external lawyer signals to your board, your employees, and external stakeholders that you are committed to an impartial process.
Lawyers are bound by strict professional duties that demand a high level of integrity and attention to detail. We understand the high stakes of these files because we have seen the fallout when investigations are not completed thoroughly. Choosing an external lawyer ensures the inquiry is conducted with the independence required to make the findings hold up under scrutiny.
The First Paragraph: Introducing Alinea Workplace Law
An alinea marks a transition. It is the moment a writer pauses, shifts focus, and begins a new paragraph. It represents clarity, a fresh perspective, and the start of a new direction.
That is exactly why I founded Alinea Workplace Law.
I am thrilled to announce that on 16 March 2026, Alinea will officially launch.
Why Alinea?
Workplace law is often treated as a series of battles to be won or fires to be put out. But for the people involved, it’s about transitions.
Whether you are an employer trying to build a healthy, compliant culture or an employee facing an unexpected career shift, you don't just need a lawyer who just knows the statutes. You need a partner who understands the human and business realities of the modern office.
What to Expect
Alinea is designed to be different—not just in what we do, but in how we do it. Starting March 16, we will be offering:
A Clear Experience: No dense legalese or traditional barriers. We offer a tech-forward, conversational, and accessible approach to employment law.
Neutral Investigations: Drawing on my in-house experience, I provide impartial, thorough workplace investigations designed to resolve conflict.
Dual-Perspective Advocacy: By understanding the strategies used by both employers and employees, we provide sharper, more anticipatory advice for everyone we serve.
Join Us for the First Chapter
The workplace is changing faster than ever, and the law needs to keep up. I invite you to explore our new digital home and see how we’ve reimagined the legal process to be as professional as it is personable.
We officially open our virtual doors for consultations on Monday, March 16.
If you’re ready to start a new paragraph in your professional story, I’d love to help you write it.
Patrick Watson Founding Lawyer, Alinea Workplace Law