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In Taylor v British Columbia ( 2026 BCSC 1047 ) Justice Leblanc had a situation where a civil servant who was dismissed without cause was entitled to 24 months severance. This is what the Judge said on this issue

[182]     It is not disputed that that defendant withheld the plaintiff’s severance payment for 15 months.

[183]     Paragraph 4 of Employment Termination Standards, B.C. Reg 379/97 [“Termination Regulation”] provides that if an employer terminates employment without cause and excuses the employee from performing the employee’s duties under s. 3(1)(d), the employer, in its sole discretion, may provide the employee with severance. The severance must be in the form of periodic payments unless the employer, in its sole discretion, considers a lump payment to be more appropriate.

[184]     In this case, the defendant exercised its discretion to make a lump sum payment. The amount of severance is established pursuant the Regulation and that amount is not in dispute.

[185]     The defendant presented the plaintiff with release paperwork (the “Severance Release”) that it stated had to be signed and returned to receive the severance payment. In the ensuing months, the plaintiff sought to regain her employment which the defendant communicated was not available. The plaintiff in turn communicated that she would not sign the Severance Release. Notwithstanding these positions, it was not available to the defendant to withhold the plaintiff’s severance once it had exercised its absolute discretion to make a lump sum payment.

[186]     Once the employer has exercised its discretion to pay severance, the Regulation does not prescribe terms that can attach to the payment of severance, other than the amount of the payment.

[187]     Accordingly, I find the defendant breached the terms of the Termination Regulation when it asked the plaintiff to release the defendant from liability in exchange for payment of severance. This was a breach of the contractual duty owed to the plaintiff.

[188]     Due to this contractual breach, the plaintiff’s source of income was abruptly stopped, and the plaintiff was forced to look for alternative income sources. The plaintiff exercised her pension early, which she testified had a negative impact on its value. While the plaintiff has not quantified the negative impact, I do accept the plaintiff’s evidence that she would not have relied on her pension at that time had she received the severance payment when she was terminated.

To punish this behaviour, the Judge awarded punitive damages of $200,000 . There were two matters that led to this award, by here I am only setting out what the Judge said about the delayed payment issue.

[226]     I also find the defendant’s withholding of severance payments, without legal explanation, to be worthy of punishment that has not been compensated for in the aggravated damages award I have made. The defendant acted in a high-handed and arbitrary way.

[228]     Further, while the defendant exercised its discretion to pay the plaintiff a lump sum, it was not then open to withhold the payment in exchange for the plaintiff agreeing not to commence legal action against it. Abruptly terminating the plaintiff and holding her severance payment ransom for a release of liability was high-handed, malicious, and arbitrary. It was also contrary to the statutory provisions on which the defendant sought to rely to limit the amount of severance payable.

My Comments:

It seems that this case could also be applicable where an employer refuses to pay a terminated employee certain amounts which are not in dispute in order to extract a release.

For instance, where an employment contract calls for a fixed termination payment but there is a dispute about an outstanding bonus earned prior to the termination, can the employer get into trouble if they refuse to pay the contractual termination payment without also resolving the bonus issue?

What about a situation where there is no dispute that the terminated employee is entitled to $10,000 in outstanding vacation pay but the parties  cannot agree on what reasonable notice the employee is entitled to? Can the employer refuse to pay the vacation pay unless the entire dispute is resolved?

For a copy of this case email me at barry@barryfisher.ca

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In COPE  v IAM Local 1922 ( 2026 CanLII 42517 ) Arbitrator Christopher White found that the Grievor was dismissed without just cause but as reinsatement was not a viable option, he instead awarded compensation in lieu.

Traditionally there have two ways of approaching how to calculate these damages . This is how the Arbitraor described the two methods:

  With respect to the method to be used in calculating damages in lieu of reinstatement, arbitral caselaw identifies two methodologies that have been widely used.  The first is the fixed-term method which assumes that, but for the improper termination, the terminated employee would have continued in employment with the unionized employer until an anticipated retirement date (e.g. age 65).  The damages calculated in respect of that period are then reduced to reflect contingencies that might otherwise have caused the employment to end at an earlier date.  Contingencies considered by arbitrators using this method vary widely and very much depend on the specific circumstances of the case.  The second method is the common law approach that calls on the arbitrator to utilize the factors generally considered by the courts in wrongful dismissal cases in their determination of a reasonable notice period where no just cause or contractual stricture otherwise governs.  Many arbitrators using this method provide an enhanced notice period to the grievor as compensation for the lost value and protections offered by the collective agreement that are unavailable to a non-unionized employee.

The arbitrator then decides that the enhanced common law approach is the better method:

I have carefully considered all the decisions provided to me and have come to the conclusion that the common law approach is to be preferred.  In particular, I find the reasons of Arbitrator Jones in Board of Governors of Mount Royal University v. Mount Royal Faculty Association (supra) to be particularly compelling.  Ultimately, the requirement to predict contingencies, especially when a long potential period of service remains in a grievor’s employment with the terminating employer, creates too much uncertainty and speculation.  It may be noted in any event that the contingencies applied by many arbitrators using the fixed term approach result in damage awards that are not dissimilar to those that would have been produced by an enhanced common law approach.  

The arbitrator then takes a two step approach to determine the proper notice period ;

First he determined that the common law notice period considering the usual Bardal Factors was 3 months .

Then he multiplies that number by 1.5 to take into consideration that the loss of a unionized position involves loss of the enhanced job security that flows from being covered by a collective agreement.

He therefore awarded 4.5 months notice in lieu of reinstatement .

For a copy of this case, email me at barry@barryfisher.ca

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This is the ” any time ” and/or ” any reason ” set of cases heard together by the Ontario Court of Appeal .

The main issues argued were:

1. Standard of Review

2. Are either or both of these phrases contrary to the ESA?

3. Does the other language in the termination clauses save any alleged defect?

4. To what degree is any do we look at the parties intentions?

Things that I picked up.

1. There are apparently 47 separate provisions in Ontario statutes that prevent an employer from firing an employee even of they pay the ESA termination payments. These include the Employment Standards Act, the Occupational Health and Safety Act, The Human Rights Code, the Securities Act and the Labour Relations Act. Therefore, even if the clause says that if we fire you for any reason you will still get the ESA amounts, this is not what then law provides, , as theses statutory provisions protect the employee from even being fired. The statutory remedy can be reinstatement, which is not available under the common law.

2. Counsel for the employees stressed the fact that all employers have to do to be compliant with the ESA is to not use those terms. No one made a submission as to why these words would even be necessary.

3. The Court seems to want to bring some certainty to this whole issue, which may be one of the reasons why they heard the two cases together.

4.Employer counsel pointed out that many previous cases allowed this exact language. Employee counsel pointed out that in most of those cases, the issue was not addressed because it was not even raised.

5. There are recent cases where the Court of Appeal has found that certain termination clauses are legal, presumably putting to rest that it is “impossible ” to draft such a clause.

6. Some of the judges questioned how any average person could understand the complexities of the ESA termination provisions .

7. For the Baker case to be overturned, it may not be enough for the Court to find that the Judge was wrong in his ruling on the”any time’ argument because there were also issues with the “with cause” termination provision because of Waksdale. That issue does not arise in Li because the only alleged defect is the “any time for any reason” argument. It would very difficult, if not impossible, for a 3 panel Court of Appeal overturn a prior Court of Appeal decision. For that you would need a 5 panel Court, which apparently was requested but refused.

8. In Li the Employee counsel argued that the trial judge failed to even consider the reasons in Baker as to why the subject clause was illegal .Rather he simply said that because the overall termination clauses were different, he did not have to follow Baker.

The entire panel of Judges certainly ” got it” . They were well prepared and asked many penetrating questions of counsel.

I do not know who won. I, like you, must await the Courts’ reasons.

In  Kirchmair v. EXP Global Inc., 2025 ONSC 3103, Justice Healey had a situation where the Defendant intentionally withheld an earned bonus of $148,000 from the Plaintiff in order to coerce him into agreeing a new, less favourable,  bonus arrangement.

The bonus plan was non-discretionary and calculated on a mathematical formula with agreed payment dates .

This bonus  payment  was owing since  early 2017 and remained unpaid as of the trial in 2025, some 8 years later.

In addition the Defendant was consistently  late in paying past bonuses by approximately 7 months.

The Judge found that the Defendant acted  in bad faith in the following manner:

1. The refusal to pay the outstanding bonus and the persistent late payment of previous bonuses.
2. The attempt by the Defendant to coerce the Plaintiff into agreeing to a less favourable bonus structure by withholding his bonus payment.
3. Trying to build a case regarding his post termination conduct to lessen or eliminate their bonus obligation.

Even though there was no medical evidence of the mental stress suffered by the Plaintiff for the failure to receive his bonus, the Judge awarded the Plaintiff $150,000 in what was characterized  as moral damages.

Quere: Is it just a coincidence that the award for moral damages was equal to the amount of the unpaid bonus?

As personal aside, if someone owed me $148,000 for 8 years, you can be sure that I would be severely mentally distressed.

The total settlement including 21 months termination pay ( pursuant to the employment contract ) plus vacation pay on the bonus , plus the bonus plus the moral damages comes to $695,537.

Then you add PJI for 8 years and costs to be determined.

Here is an interesting side note. The decision is dated May 26, 2025. The lawyers only received it March 12, 2026. Apparently the Court admin staff forgot to send it out.

For a copy of this case, email me at barry@barryfisher.ca

To book a mediation, go to www.barryfisher.ca

To access the Wrongful Dismissal Database, go to www.wddonline.ca

 

 

 

In Gale v Fairmont Hot Springs Resort Ltd., 2025 BCSC 2690 (CanLII) Justice Stephens awarded a 9 months notice period to a 63 year old Director of Sales and Marketing with 3.4 years service. The plaintiffs’ compensation was a base salary of $142,00 plus a bonus up to 25% of his base.

The Plaintiff was given notice of termination on February 8, 2024 and was given working notice until February 29, 2024.

The fiscal year end of the Defendant was November 30, 2023 and was actually paid out in February of 2024. For the first 6 months of the fiscal year he was  paid a bonus of $52,300 but was paid nothing for the last 6 months of the fiscal period. His payout for the first 6 months of the fiscal year was three times the maximum entitlement. In the previous 2 years, his bonus was equal to 97% of the 25% maximum. The total bonus received in the 30 months that he achieved a bonus averaged $4,000 per month.

The relevant part of the employment contract regarding the bonus plan was as follows:

9. SLT Incentive Plan: You will be eligible to participate in the Company’s SLT Incentive Plan. The SLT Incentive Plan provides for a fiscal year annual performance incentive of up to 25% of your Base Salary (“Incentive Bonus”) subject to the achievement of the annual goals and objectives that are to be annually agreed to between the Company and you and approved by the Company’s Board of Directors. Whether any Incentive Bonus is issued and the amount of any such Incentive Bonus shall be at the sole discretion of the Company and any Incentive Bonus issued in any one year does not mean that you will be entitled to or receive an Incentive Bonus in any other year. Eligibility for any Incentive Bonus shall be subject to you not having ceased employment with the Company, regardless of the reason for or manner of termination, during the year for which the Incentive Bonus would be payable and for greater certainty, is not earned until the date that such Incentive Bonus is determined by the Company to be payable to you.

The first issue was whether the Plaintiff was entitled to a bonus for the period June 8, 2023 to November 30, 2023.

To me it seems obvious that the Plaintiff should have received this bonus because he qualified under the terms of the contract in that he was employed not only as of November 30 2023 but also at the time of payout in February as he was on actual working notice until February 29, 2024.

This what the Judge said :

[13]      On February 8, 2024, Fairmont wrote to advise Mr. Gale that Fairmont had terminated Mr. Gale’s employment on a without-cause basis. The termination letter provided for a period of working notice of three weeks, from February 8 to February 29, 2024, and notified him that his company benefits, including health and dental insurance, would be terminated effective February 29, 2024. The termination date was February 29, 2024.

However the Judge determined that in order to qualify for the bonus there had to be an analysis of the entitlement to a bonus over the notice period. This is what the Judge said on that issue.

[97]      Damages, thus, must be awarded for bonuses earned during the notice period if the employee demonstrates that a bonus was an integral part of the employee’s compensation, having regard to four factors that are helpful in determining whether this is the case in any particular situation:

(1)        A bonus is received each year although in different amounts;

(2)        Bonuses are required to remain competitive with other employers;

(3)        Bonuses were historically awarded and whether the employer had never exercised his discretion against the employee; and

(4)        The bonus constituted a significant component of the employee’s overall compensation.

The Judge found that all four factors applied so he awarded a bonus for the period ending November 30, 2023.

However, since a 9 months notice period would only take the employee to November 9, 2024, the Plaintiff was not entitled to any further bonus after November 30, 2023. In fact the plaintiff would have had to be awarded a notice period ending February 28, 2025 ( 14 months ) to get any bonus over the notice period or the stub period that he worked from December 1, 2023 to February 29, 2024.

It is even more surprising how the Judge calculated the bonus owing for the last 6 months of the fiscal year. The Judge completed ignored the fact that in the previous 6 months the plaintiff received an extraordinary high bonus of $52,300 and instead simply took the average of the prior 2 complete years where he was paid 97% of the 25% as set out in his contract. This is what the Judge said :

[107]   Nevertheless, this bonus amount was paid for the first six months of the 2022/2023 year. There is no evidence to suggest the same amount would have been paid to Mr. Gale for the last six months of that fiscal year as well. However, there is also no evidence that Fairmont had determined that the bonus given in June 2023 satisfied Mr. Gale’s bonus for the entirety of the fiscal year. Instead, the wording of the June 7, 2023 letter assigns the bonus to only the first six months of the year.

[108]   Given the history of Mr. Gale’s previous bonus amounts and their quantum, and having regard to the maximum bonus for one year under the Employment Agreement of 25 percent of base salary, I find that Mr. Gale has an entitlement to a bonus for the second six months of the 2022/2023 fiscal year calculated as 97 percent of the maximum bonus for that six-month period, being 97 percent of $17,750, equalling $17,217.50 (97 percent x 0.5 x 0.25 x $142,000).

In essence the Plaintiff got a below average bonus for the period that he actually worked and zilch bonus over the notice period.

This was a similar result as in Adelman v. IBM Canada Limited, 2026 ONSC 420.

For a copy of this case, email me at barry@barryfisher.ca

To book a mediation, go to www.barryfisher.ca

To access the Wrongful Dismissal Database, go to www.wddonline.ca

In Brandt Tractor Ltd. v Melissa Morasse, 2026 ONSC 992 , Justice Backhouse head the following fact situation in a audial review of a HRT decision:

“Ms. Morasse was an employee of Nortrax Canada Inc.(“Nortrax”)2 She was on maternity leave when Nortrax sold its assets to Brandt and ceased to carry on business. Brandt hired all but 30 of the 650 employees of Nortrax. None of Nortrax employees who were on leave during the time of the asset transfer were contacted, interviewed or offered positions. The Tribunal found that Brandt discriminated against Ms. Morasse with respect to employment on the basis of sex and family status, contrary to the Human Rights Code, RSO 1990, c. H.19 (the “Code”) when it did not consider Ms. Morasse for employment with Brandt and her employment with Nortrax was terminated.”

The Court dismissed Brandt’s application finding that the HRT was correct in :

1. Even though Brandt as the successor employer had no legal relationship with the Complainant , it was a proper party to the complaint because :”

“Rather, it was Brandt’s own allegedly discriminatory conduct in its hiring process that wasthe basis of that determination.”

2. Even though Brandt claimed they did not know that the Complainant was on maternity leave, ” Brandt knew or ought to have known that its policy not to interview anyone on leave would affect persons away on protected leave. “

3.” Third, the Supreme Court of Canada has long recognized that identical treatment may resultin inequality.3 The fact that Brandt’s hiring policy was applied to all persons on leave andwas based on business-related considerations did not render it non-discriminatory”

4. “the prohibited ground need only be a factor and not the sole factor in the decision that led to the adverse impact “

For a copy of this decision, email me at barry@barryfisher.ca

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In Adelman v. IBM Canada Limited, 2026 ONSC 420 Justice Parghi awarded 24 months notice to a 59 year old Executive Director , Stategic Partnerships with 18.5 years service.

The Judge made some interesting ruling about how one calculates various compensation items:

1. Valuation Date for RSU: At various times during the 24 month period certain RSU’s would have vested. That issue was not in dispute. IBM was arguing that the date upon which these RSU’s should be valued should be the date that they first became vested. The Plaintiff argued that because in the past he had not sold the shares upon vesting but instead waited an average of 402 days after vesting, that the valuation date should be 402 days after the vesting

The Judge agreed with the Plaintiff because there was evidence of this employee’s past practice. Absent such evidence the Judge would have found the IBM methodology ” a reasonable approach”.

2. Bonus in the Year Prior to Termination: The Plaintiff was terminated just before the payout of bonuses for the prior year. IBM determined that he was not entitled to a bonus for that year. The Judge determined that the process used by IBM to assess his entitlement to a bonus for the year that he worked was flawed. The was largely because of this statement :

[41] Notably, Mr. Adelman’s 2022 executive compensation statement, issued by IBM, states quite clearly that he was denied a bonus for 2022 because he had left the company by the time bonuses were paid out. The statement contains a note that states: “For 2022 he separated before AIP [annual incentive program] payment date (for 2023 cycle) so he is not eligible for AIP payment 

He was then awarded a bonus based on the average over the last two years, which came to $24,227.

3. Bonus Over the Notice Period : The Judge ruled that the first issue to be determined was whether “ the bonus was an integral part of the employee’s compensation package, such that there is a common law entitlement to damages in lieu of bonus. “

The Judge then set a four part test to answer this question

[26] The test for determining whether a bonus is integral is well-established. I am to consider whether Mr. Adelman received a bonus each year, albeit in different amounts; whether the bonuses were required in order for IBM to remain competitive with other employers; whether bonuses were historically awarded and IBM never exercised its discretion against Mr. Adelman, and whether the bonuses constituted a significant component of Mr. Adelman’s overall compensation (Wolfman v. Rocktenn-Container Canada, L.P., 2015 ONSC 1432, [2015] O.J. No. 1118 (Q.L.); Bain v. UBS, 2016 ONSC 5326, 274 A.C.W.S. (3d) 331, at para. 83, aff’d 2018 ONCA 190, 289 A.C.W.S. (3d) 550). 

Applying these criteria to the case in question the Judge ruled as follows:

A) The evidence disclosed that the Plaintiff did not receive a bonus every year.

B) There was no evidence that payment of bonuses was required for IBM to stay competitive, in fact an IBM witness testified that “IBM uses base salaries, and not bonuses, to maintain competitiveness within the market.”

C) The evidence showed that in any given year some eligible employees received zero bonus, including the Plaintiff’s supervisor.

D) The past bonuses were 16.6% and 3.6% of his base, which the Judge found was not a significant component of the Plaintiff’s compensation.

For a copy of this case, email me at barry@barryfisher.ca

To book a mediation, go to www.barryfisher.ca

To access the Wrongful Dismissal Database, go to www.wddonline.ca

 

In O’Driscoll v Suncor Energy 2026 ABKB 43 , Justice McQuire had a situation where the employer fired a shift supervisor for sleeping on the job.

The Plaintiff worked at an oil sands operation. He was assigned a company truck to do his job which included visiting various location within the job site .

The Defendant conducted an investigation of the Plaintiff because they noticed for lengthy periods of time on a certain night shift the GPS in the Plaintiff’s truck showed that the truck was stationary.

The Plaintiff gave an explanation that he thought it was important that night to watch one operation under way, so that is why his truck remained stationary. He denied sleeping on the job.

An investigation was commenced by a Suncor HR person who concluded that the Plaintiff had been sleeping on the job. He was fired.

The Judge was very critical of the investigation and accused the HR person of ” tunnel vision” in that she viewed the evidence that supported her conclusions in a radically different way than the evidence that did not support her conclusion.

The Judge found that the investigation was defective in the following ways :

1. It ignored the GPS evidence which showed that other supervisors had parked their trucks within a few feet of the Plaintiff’s truck and none of them testified that the Plaintiff was sleeping.

2. The Defendant had destroyed evidence of radio communications that night even though the Plaintiff testified that he had many numerous radio calls that night during the time they accused him of sleeping.

3. The investigator ignored evidence of other supervisors who said that they interacted with Plaintiff during the hours in question.

The Judge awarded the Plaintiff 16 months notice.

If you want a copy of this case, email me at barry@barryfisher.ca
To book a mediation, go to www.barryfisher.ca
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In Timothy Comeau v. Valcom Consulting Ltd, 2025 NBKB 253 (CanLII)
Judge DeWare had a situation where at the expiry of a series fixed term contracts that contained no termination clause, the Employer submitted a contract that contained a series of clauses that limited the Employee’s entitlement on termination to the ESA minimums ( which in NB is only 8 weeks ).

The Judge found that this was a material change to the employment relationship and therefore it constituted a constructive dismissal. This is what the judge said:

[27]     In the current circumstances, the Court must determine if the alterations to the March 2024 terms of employment were substantial. The alteration of the notice requirement upon termination is a substantial change to the previous terms of the relationship between the parties. It is difficult to conceive how this cannot be considered a substantial term of employment. The alteration to the terms of the contract surrounding layoff, suspension, and termination go to the heart of an employment contract. While the Defendant points out the Plaintiff never raised these terms with the Defendant but only expressed displeasure with the salary, the Plaintiff wasn’t aware of the other substantial changes to the employment contract until he reviewed it with his lawyer.

My Comments:

The pre-existing fixed term contract expired at the same time that the employer’s new contract proposal was presented to the employee.

One would have thought that the employers’ position would have been as follows:

” Your Honour, the employment relationship ended when the fixed term expired. No notice is required to end a fixed term contract upon its expiry. In subsequent negotiations, the parties were unable to reach an agreement on a new contract. That is not a dismissal. End of case”

For a copy of this case, email me at barry@barryfisher.ca
To book a mediation, go to www.barryfisher.ca
To access the Wrongful Dismissal Database, go to www.wddonline.ca

In the CIVIL RULES REVIEW : FINAL POLICY REPORT Submitted by the CRR Working Group which was released on December 15, 2025 my long sought reform to the OMMP has finally been realized.

Mandatory mediation of most civil disputes in Ontario will apply Province wide and no longer be limited to only Toronto, Ottawa and Windsor actions .

The highlights are as follows :

1. Mandatory mediation to be expanded throughout the Province.
2. Eliminating the judicial settlement aspect of pre-trial conferences, while retaining a discretion to schedule judicial settlement conferences where appropriate and where resources permit;
3. Adopting the Binding Judicial Dispute Resolution model of the Family Law Rules( Rule 43) for civil cases.
4. The exceptions would be as follows(i) Cases on the Application Track, where it will remain discretionary, except in certain estates, trusts, and Substitute Decisions Act cases (as per the existing Rule 75.1);
   (ii) Cases where a mediation has already been conducted before the One-Year Scheduling Conference;
   (iii) Proceedings under the Construction Act or the Bankruptcy and Insolvency Act;
   (iv) Proceedings under the Class Proceedings Act, except where certification is denied and a claim proceeds as a regular claim; and
   (v) Cases involving allegations of physical, mental, or emotional abuse, where it will remain discretionary.
5. Update the  Mediator’s Roster by:(i) Establish a province-wide roster of mediators, enabled by virtual mediation, which eliminates geographic constraints and ensures consistent access to mediators across
   Ontario;
   (ii) Establish a task force to update the roster rates to reflect current market conditions; and
   (iii) Create continuing professional development standards for roster mediators for quality assurance purposes.

My Comments:

This is something that I and many others ( notably Jennifer Egsgard, Bernie Morrow,  Mitch Rose and the late Michael Silver ) have been working  on for over  20 years to bring about. We have held many meetings, conducted surveys, written reports, spoken to MAG, the OBA and countless others trying to convince them that the OMMP was such a  success that it should be expanded throughout the Province.

Now it looks like it will finally come true.

Better late than never.

The report is too large to load onto this page . This issue starts on page 161 of the Report.

I can send you a copy  if you email me at barry@barryfisher.ca