Near cause is a legal concept whereby a court seeks a middle ground between the full notice period entitlement of a without cause dismissal and a termination for cause without notice. The court would reduce the dismissed employee’s entitlement to damages for the employer’s failure to provide proper notice of dismissal in circumstances where the employee has engaged in misconduct or has exhibited poor performance that falls short of just cause for dismissal.
Near cause is not recognized in Canada.
Near cause did find some support in the lower courts until the Supreme Court of Canada released its brief decision Dowling v Halifax (City)1in 1998. The Supreme Court refused to accept any arguments relating to near cause thereby ending the debate about its place in Canadian employment law.
The result is that an employee’s misconduct, negligence or incompetence that falls short of justifying his or her dismissal for cause is irrelevant and should not be considered when determining the employee’s entitlement to wrongful dismissal damages. In short, an employer either has cause for dismissal or it does not – there is no middle ground.
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- Dowling v. Halifax (City), 1998 CanLII 834 (SCC);
