Employment contracts can be frustrating, but they can also be frustrated. The former is a simple fact of life, while the latter is a key principle of contract law.
“Frustration” occurs where an unanticipated event destroys the heart of the contract to the point where it can no longer be fulfilled. When a contract becomes frustrated, the parties are relieved of any obligation they were contractually bound to perform. The legal concept, while simple in theory, has been difficult for employers to apply, particularly in the case of absences due to the critical illness or injury of an employee.
In the recent case of The Estate of Christian Drimba v Dick Engineering Inc., 2015 ONSC 2843 (“Drimba”), an Ontario court examined the concept of frustration in the case of the terminal illness of an employee who subsequently passed away. The case provides guidance to employers about the factors a court or tribunal may look at when making such a determination.