Court Awards Commission During Notice Period But Not Beyond:

In Kraft v Firepower Financial Corp ( 2021 ONSC 4962) Justice Morgan had a somewhat unique situation.

It was not disputed that on two different transactions the Plaintiff salesman had done everything that was expected of him up to his termination date and the only issue was whether the transaction would actually close and thus the Defendant would receive the sale proceeds. On of the closings took place within the 10 month notice period and one had not closed within the 10 months nor by the date of the hearing.

The Judge awarded the Plaintiff his commission for the first transaction but not for the second one ..

This is what he said :

[26] On the other hand, I am not prepared to award the Plaintiff commission on the Schure Sports deal if and when it ever closes. The Plaintiff’s notice period has come and gone, and his entitlement to wages – whether salary, bonus, commission, or other incentive payment – does not go on forever.

[27] The notice period defines the time frame after which both the employee and the employer must put the employee’s wages flowing from his termination behind them. Otherwise, an employer and employee would be tied to each other indefinitely. I am of the view that a judgment in a case like this should bring finality to the issues between the parties.

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Court Increases Notice Period From 9 to 10 Months Due to COVID:

In Kraft v Firepower Financial ( 2021 ONSC 4962 ) Justice Morgan awarded 10 months notice to a 34 year salesperson in the financial industry with 5.5 years service.

However he did this is in a three step process.

First of all he determined that the relevant case law showed a range between 4 and 12 months.

Secondly, he then determined that the average of those cases was 9 months .

Thirdly he added a month because ” there was evidence that the pandemic impacted on the Plaintiff’s ability to secure new employment.”

In this case the termination took place in mid March 2020, the same week the Ontario government declared the pandemic emergency . Here is more of what the Judge said :

[18] Here, by contrast, the Plaintiff was terminated during the second week of March 2020, the very same week and just days before the Ontario government declared an emergency. Whatever policy considerations drove the provincial government to implement its emergency orders on one particular day that week and not another are not relevant to the analysis; the point is that the economy was already shutting down and remained closed during the Plaintiff’s inevitably prolonged job search. A global pandemic does not just emerge on the day of the government’s emergency decree. 

[19] Especially during the first half-year of the shutdown in response to the pandemic, there was uncertainty in the economy and the job market and fewer employers were looking to fill positions. I agree with cases that warn against the danger of applying hindsight to the reasonable notice analysis: Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998, at para 19. But as a number of my colleagues have commented, “[t]his degree of uncertainty, which existed on February 19, 2020, is one of the many factors that I consider in assessing the reasonable period of notice applicable to the circumstances of this case”: Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 2133, at para 64. 

I find that the manner in which the Judge approached the notice issue interesting because he actually set out a logical process as opposed to musing about the Bardal Factors and then seemingly plucking a number out of the air.
I wonder whether in determining  the average of the cases he had before him a objective determination of the most relevant cases. ( yes this is a shameless plug for my Wrongful Dismissal Database ) .
He then clearly told us by how much he was increasing the notice period because of COVID .
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Judge Awards 24 Months Notice + $25,000 Moral Damages:

In Russell v The Brick Warehouse ( 2021 ONSC 4822) Justice Vella awarded 24 months notice to a 57 yearly Senior Supervisor making $75k with 36 years service.

However the surprising part of this case is that the Judge also awarded $25,000 for certain events following the termination. In essence, the Defendant failed to tell the Plaintiff that if he did not accept their offer ( which was in excess of the ESA minimums) they would nevertheless pay him his ESA minimums.

This is what the Judge had to say about the employer’s behaviour

[51] In considering the factors that inform an award for moral damages, the court is to look at the manner in which the dismissal was carried out. This can include conduct at the time of the dismissal and following the dismissal provided it is related to the dismissal: See Doyle at paras. 26 and 39. 

[52] The termination letter provided to Russell, dated July 21, 2020, is the focus of this analysis. It provided a without prejudice offer to settle Russell’s termination and severance obligations by providing terms that were, generally, more generous than the statutory minimum entitlement, but less than his common law entitlement for other aspects of his compensation. Russell had three days to accept this offer and would have had to sign a Release in favour of the employer. 

[53] The termination letter was not fully compliant with the minimum statutory entitlements of the ESA insofar as it did not reflect an extension of Russell’s employment related long term disability, accidental death and dismemberment coverage or ongoing participation in the Group RRSP and DPSP programs during the statutory notice period. Furthermore, the termination letter provided that vacation pay would only be paid accrued to the date of termination. Under the ESA, vacation pay continues to accrue over the statutory notice period, or eight weeks beyond termination in Russell’s case. 

[54] More importantly, the termination letter did not advise that if Russell declined the offer, he would be immediately provided with his statutory entitlements under the ESA. I find this to be a serious defect with the termination letter, as it implies employees will know that they can demand their statutory entitlements forthwith upon rejection of these types of offers. This defect reflects a failure by The Brick to deal fairly with Russell. By failing to include this proviso in the termination letter, The Brick was not being honest and forthright with Russell. 

[55] Furthermore, while The Brick’s failure to immediately transfer the correct amount of severance and termination pay into Russell’s RRSP was largely due to a series of “inadvertent” missteps on its conduct post termination, it nonetheless reasonably caused Russell distress beyond the “normal” hurt feelings that accompany termination without cause. 

[56] There is some evidence in the record that supports the requisite degree of mental distress, recognizing that mental distress need not be proven by medical evidence: Groves v. UTS Consultants Inc., 2019 ONSC 5605 at para. 113. 

[57] I recognize that an employee, like Russell, does not have a statutory entitlement to have his severance and termination pay directed to an RRSP. However, there is no suggestion by The Brick that it would not accommodate such requests from terminated employees and Russell made this request on July 23, 2020 – three days’ after receiving the termination letter – and this request was repeated by his lawyer. Eventually, The Brick did arrange for a direct deposit into Russell’s RRSP. 

[58] Russell was without income or, to his knowledge, benefits for approximately seven and a half months post termination. His spouse was forced to go back to work full time and Russell had to use his savings to make ends meet for the family during this period. Russell has been receiving some medical treatment and medication for stress related issues according to his unchallenged evidence. There was no good reason for The Brick to have failed to advise Russell by at least July 23, 2020 (after receiving his counterproposal) or shortly thereafter that the majority of his benefits would be extended beyond termination, in compliance with the ESA. There was also no good reason for The Brick to have not immediately advised Russell that he would receive his statutory notice and severance pay in the event its without prejudice offer was rejected. This is no way to treat any employee, much less a long-term loyal employee of over 36 years. 

[59] The fact that The Brick offered for Russell to keep the funds totalling the net ESA entitlements does not relieve it from its errors and lack of timeliness (see the chronology and evidentiary cites at para. 16 of Russell’s factum). The whole point was that Russell wanted the funds deposited into his RRSP so that there would be no personal tax withholdings from it. The 

Brick had already taken far too long to get the statutory entitlements right irrespective of the date when it was provided with the RRSP bank deposit information by Russell’s lawyer. 

[60] Furthermore, The Brick used the same basic template termination letter, modified to the circumstances of each terminated employee, as was used for Russell. While no direct evidence was led on the issue of how the “template” termination letters were modified, the inference is either none of the termination letters reflected the advice to employees terminated at around the same time as Russell that if The Brick’s offer to settle was rejected, they would receive the statutory minimum entitlements, or the other letters did reflect that advice and it was omitted from Russell’s termination letter. Either way, this factor supports an award of moral or aggravated damages, in combination with the other factors reviewed. 

[61] Russell asks for an award of $50,000 as moral or aggravated damages. 

[62] In the circumstances of this case and having regard to awards made by this Court in other cases featuring similar types of unfair dealings during the course of termination, I am awarding $25,000.00 as moral damages for the following reasons: 

a) A lack of transparency and fair dealing by The Brick in the termination process by failing to advise that Russell would be provided with his full statutory (ESA) entitlements in the event he rejected the offer reflected in the termination letter; 

b) A lack of transparency and fair dealing by failing to advise Russell that his benefits would be extended consistent with his statutory notice period irrespective of whether he accepted The Brick’s offer; 

c) The failure of the offer to meet all of the statutory entitlements, including vacation pay accrued over the course of the statutory notice period; and 

d) Mental distress Russell suffered beyond the usual hurt feelings and distress of being dismissed, and which was reasonably foreseeable to The Brick arising from its lack of transparency and fair dealing in the manner of terminating his employment. 

My Comments:

This is another example of how the Courts are reacting to behaviours by the employer that in their opinion fall below the acceptable standard.

For instance ,the Court felt that not telling the Plaintiff that if did not sign the release he would still be paid his ESA minimums was wrong. However, within one month of his termination he retained an experienced employment counsel who would have told him this. In fact, within 10 days of his termination the employer not only paid the ESA minimums but overpaid it by paying it twice. Therefore how was the Plaintiff possibly misled?

The problems seem to arise from this “overpayment “. Once they realized this “overpayment” the Defendant  asked that the Plaintiff return the portion in excess of his ESA. The Plaintiff refused and instead the Plaintiff returned the whole net amount. Why did he not simply keep all the money and tell the defendant it was a credit to his common law entitlement?

Through a series of screw ups the ESA payment was not properly paid to his RRSP until 7 months later.

The Judge made references to  some without prejudice offers made by both the Defendant and the Plaintiff . Funny, I always  thought that offers that were not accepted were not even to be disclosed to the Court, let alone referred to or relied upon.

One of the basis for the moral damages was the failure to pay vacation pay on the termination pay. At 12% of 8 weeks salary  at $75,000 /year this would amounted to $1,385.  But in fact the Defendant paid twice the ESA amount , an overpayment of 34 weeks ( $50,480) which more than covered the vacation pay underpayment of $1,385. Remember, the Plaintiff chose to repay the entire amount ( presumably because he wanted it in RRSP not subject to tax withholding ) and now was complaining that he did not get his ESA payments for 7 months.

My personal feeing is that certain judges feel compelled by the Court of Appeal to cap notice periods at 24 months absent special circumstances. However they feel that the Plaintiff should receive more than this informal cap and therefore will find other creative ways of rewarding extra monies to plaintiffs they believe are deserving by focusing closely on the Employer’s actions at the time of and following the termination.

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Ont Court Says 3 Things: IDEL = Constructive Dismissal & CERB is not Deductible $ Punitive Damages for Not Paying ESA:

In Fogelman v IFG ( 2021 ONSC 4042) Justice Vella made three interesting decisions on some recent COVID related issues:

  1. IDEL Layoffs are Constructive Dismissals: This is what the Judge said :
  2. [45] O. Reg. 228/20 was enacted by the Ontario government as a measure to provide temporary relief to employers from paying statutory notice and severance under the ESA during the course of the COVID-19 pandemic by providing that, for purposes of the ESA, temporary lay-offs would not constitute constructive dismissal (subject to stated exceptions) within the meaning of that statute. Section 7 of O. Reg. 228/20 states: 

    7. (1) The following does not constitute constructive dismissal if it occurred during the COVID-19 period: 

    1. A temporary reduction or elimination of an employee’s hours of work by the employer for reasons related to the designated infectious disease. 

    2. A temporary reduction in an employee’s wages by the employer for reasons related to the designated infectious disease. 

    (2) Subsection (1) does not apply to an employee whose employment was terminated under clause 56(1)(b) of the Act or severed under clause 63(1) (b) of the Act before May 29, 2020.

    [46] Subsection 56(1)(b) of the ESA states: 

    56 (1) An employer terminates the employment of an employee for purposes of section 54 if, 

    (b) the employer constructively dismisses the employee and the employee resigns from his or her employment in response to that within a reasonable period; 

    [47] Furthermore, the Ontario Ministry of Labour bulletin entitled “COVID-19: temporary changes to ESA rules” states: “These rules do not address what constitutes a constructive dismissal at common law.” 

    [48] The ESA provides the answer to this issue under s. 8(1): 

    8 (1) Subject to section 97, no civil remedy of an employee against his or her employer is affected by this Act. 

    [49] In other words, s. 8(1) provides that the ESA does not supercede the civil remedies otherwise available to an employee at common law or in equity. 

    [50] As Mr. Fogelman was not pursuing his rights under the ESA but rather was pursing his civil remedies, O. Reg. 228/20 does not apply to Mr. Fogelman’s claims made under the common law pursuant to s. 8(1) of the ESA. 

    [51] In the alternative, if I am in error regarding my conclusion, then, Mr. Fogelman was not captured by s. 7(1) of O. Reg. 228/20 because he was constructively dismissed within the meaning of s. 56(1)(b) of the ESA. Mr. Fogelman effectively resigned within a reasonable time thereafter (within days), and the constructive dismissal and Mr. Fogelman’s response occurred before May 29, 2020. Therefore, pursuant to s. 7(2) of O. Reg. 228/20, s. 7(1) did not apply to Mr. Fogelman’s termination by IFG. 

2. CERB is not deductible from wrongful dismissal damages. This is what the Judge said :

ii. Canada Emergency Response Income Support Payments  

[91] Mr. Fogelman applied for, and received, the income support payment under the Canada Emergency Response Benefit Act, S.C. 2020, c. 5, s. 8 (“CERB Act”), in the sum of $2,000 per month, for five months from April to August 2020. 

[92] IFG submits that I should reduce any award I make by the sum Mr. Fogelman received under the CERB Act. 

[93] The CERB Act does not offer much guidance on this topic. However, s. 12(1) does impose a repayment obligation on recipients of the income support payment should it be determined that the recipient should not have received it, or was overpaid: 

Return of erroneous payment or overpayment 

12 (1) If the Minister determines that a person has received an income support payment to which the person is not entitled, or an amount in excess of the amount of such a payment to which the person is entitled, the person must repay the amount of the payment or the excess amount, as the case may be, as soon as is feasible. 

[94] I have reviewed the legislation, and the decision of S.F. Dunphy J. rendered in Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998, at paras. 20-21. I agree with Dunphy J. that the CERB Act payments should not be treated as income for purposes of mitigation. 

[95] Accordingly, I decline to deduct the CERB Act income support payments received by Mr. Fogelman from the damages awarded. 

3) Awarding Punitive Damages: This is what the Judge said :

[113] I am concerned that IFG refused to provide Mr. Fogelman with any statutory entitlements under the ESA once it received notice that Mr. Fogelman considered the lay-off to be constructive dismissal. It is well established that an employer cannot lay-off employees absent a contractual right to do so, and that any such purported lay-off will be treated as a constructive dismissal at common law. Initially, it will be recalled, IFG took the position Mr. Fogelman had no employment contract. 

[114] Even after IFG acknowledged that an employment contract existed, IFG did not pay the notice and severance requirements stipulated by the employment contract. 

[115] IFG has not behaved well in its dealings with Mr. Fogelman over the termination. First, it took the position that Mr. Fogelman was an employee since 2009 and produced sworn evidence to this effect. This position was also reflected in its statement of defence.

[116] Then, later, by way of a supplementary affidavit, IFG changed its position and stated that Mr. Fogelman was actually an independent contractor for the first five plus years of his employment and produced an employment contract. IFG did not amend its statement of defence to plead the employment contract and its termination clause. 

[117] IFG admits it knew that Mr. Fogelman took the position that the lay-off was a constructive dismissal almost immediately following his termination. IFG used this position as the excuse for not advising Mr. Fogelman of the prospects of his being recalled to work, notwithstanding its advice, reflected in its letter to Mr. Fogelman dated March 16, 2020, that it would provide him with an update of his lay-off status. At no point did IFG provide any such update, and at no point did it recall Mr. Fogelman back to work. 

[118] Indeed, efforts by Mr. Fogelman’s lawyer to initiate settlement discussions and his demands that Mr. Fogelman be paid at least his minimum entitlements under the ESA were met with radio silence after an initial letter from IFG’s lawyer saying that IFG would consider the proposal and would respond. 

[119] IFG also made it difficult for Mr. Fogelman to effect service of the statement of claim, notwithstanding the pandemic. According to Mr. Fogelman’s affidavit evidence, which I accept, IFG’s lawyer declined to accept service, and when Mr. Fogelman contacted IFG to ask if he could come and serve the statement of claim, he was advised that IFG’s personnel had been instructed not to accept service of his lawsuit. As a result, Mr. Fogelman, through a private process server, had to serve an IFG official at his place of residence. Even then, the official sent back the statement of claim by courier saying that IFG personnel were not allowed to accept service. This pattern of conduct, during the course of a pandemic, was designed to make it as difficult as possible for Mr. Fogelman to proceed with his lawsuit. 

[120] It is also my view that the failure to comply with the ESA is an independent wrong that is outrageous and reprehensible behaviour deserving of punitive sanction. The purpose of the ESA is to provide employees with minimum standards, including minimum notice and severance in the case of termination without cause. Employers cannot be permitted to ignore their obligations under the ESA while awaiting the outcome of a court proceeding where the termination was conceded to be without cause. It is critical that the courts protect the statutory rights of employees, especially in harsh economic times. I agree with Mr. Fogelman’s position that IFG’s refusal to pay anything to Mr. Fogelman was an attempt to play hardball with him.

[121] I have considered the compensatory aspects of the damages award and determined that “there is a shortfall between the amount of that compensation and the total amount required to accomplish the objectives of retribution and deterrence and denunciation of the defendant’s misconduct” to use the words of Cronk J.A. in Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669, 117 O.R. (3d) 481, at para. 228. 

[122] Having reviewed the case law submitted, and recognizing that IFG’s business has suffered an economic downturn in the wake of the pandemic, it is my view that an award of $25,000 is an appropriate award of punitive damages. This award proportionately meets the goals of retribution, deterrence, and denunciation of IFG’s misconduct. It also sends an appropriate message to employers that the mandatory requirements imposed upon them by the ESA, in favour of employees, must be abided by promptly. 

My Comments:

This is another in an increasing long line of cases about COVID related employment issues .

These are my concerns:

This case was heard on January 28, 2021 and released on June 2, 2021. The case of Taylor v Hanley Hospitality ( 2021 ONSC 3135) which came to the opposite conclusion on the IDEL issue was heard on April 2021 and released on June 7, 2021. In other words neither judge had the benefit of reading the others decision.

The Employer was whacked with a punitive damage award largely because they did not instantly pay the ESA minimums once the employee claimed that the layoff was a constructive dismissal However, if they would have won the IDEL argument , then the layoff would have been legal and no constructive dismissal would have occurred.

Moreover, since the entitlement to ESA termination pay and severance pay flows only from the ESA and not the common law, and the layoff was legal under the ESA but illegal under the common law, how can it flow that the employer should be punished for in effect following the exact wording of the ESA?

How can the employee claim a payment under a statute which the statute itself says there is no entitlement? You may agree or disagree with whether an IDEL layoff is a dismissal but certainly reasonable people ( including fellow judges of the same Court) can disagree without the punishment of punitive damages.

Some of the reasons for awarding punitive damages related solely to litigation tactics, which used to be covered in the costs aspect of the case but increasingly is finding its way into the punitive damages sphere. I am not convinced that this is a good development for the law where court time will be spent arguing over the various litigation tactics of each side before the issue of liability has even been determined. Why not shift these arguments to the cost aspect where the Court could award full indemnity costs as a way of regulating the litigation process?




Court Finds Tow Truck Driver is an Employee Not an Independent Contractor:

In Mazanek v Bill & Son ( 2021 ONSC 4512) Justice Steele found that a tow truck driver was an employee and not a independent contractor for the following reasons :

1) The fact that he was paid through a company and not personally was not important.
2) The Plaintiff drove a branded truck owned the Defendant . All the tools of the trade were owned by the Defendant.
3) The Plaintiff wore a Company uniform.
4) He was paid on a strictly hourly basis.
5) He had been an employee of the predecessor company when the Defendant took over the towing contract and continued using the Plaintiff’s services.
6) There was a GPS in the truck so the Plaintiff could be tracked by the Defendant at all times .
7) Most importantly, his duties of driving a tow truck was the business of the Defendant. It was central to the business, not an adjunct to the business.

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More on Court Finds That Limitation Period Restricts Vacation Pay Recovery to 2 Years:

In Mazanek v Bill & Son Towing ( 2021 ONSC 4512) Justice Steele awarded a 6 month notice period to a 44 year old tow truck driver with 5.5 years service. The employer failed to prove multiple allegations of theft and other misdeeds.

At no time during his employment was he paid statutory vacation pay as he was wrongly considered to be an independent contractor. The Court considered the usual factors and found that he was an employee and not an independent contractor .

This finding that the Plaintiff was in fact an employee governed by the Employment Standards Act led to a claim for vacation pay for the entire period of employment. However  the Judge found that the Limitations Act restricted claims for unpaid vacation pay to the date 2 years from the commencement of the claim. However the comments on this issue  was very brief on this issue, one single paragraph in an award of 80 paragraphs. This is all that the  judge said on the vacation pay issue :

[77] As I have determined that Mr. Mazanek was an employee of Bill & Son, he is also entitled to damages on account of vacation pay under the ESA. Mr. Mazanek claimed damages for accrued but unpaid vacation. Bill & Son argues that if there was any vacation pay due and owing it would only be due and payable two years preceding the commencing of the action. Any claimed amount preceding that date would be statute barred under the Limitations Act. I agree. 

My Comments:

The Judge did not list any of the counterarguments that I assume were made by the Plaintiff’s lawyers. This issue has come up before me in many mediations and  it would appear that the issue may not be as cut and dry as set out in this case.

For instance, since the Plaintiff was treated by the defendant as a contractor and not an employee, how could he “discover ” his entitlement to vacation pay until a Court , the Ministry of Labour or CRA declared him to be an employee?

This principle of discoverability was set out in the leading case of Evangelista v. Number 7 Sales Limited ( 2008 ONCA 599) in which the Ontario Court of Appeal said as follows:

[43]         Finally, the appellant argues that the trial judge erred in allowing public holiday and vacation pay going back to 1996 notwithstanding the two year statutory limitation period in s. 96(3) of the Act and/or the two year limitation period in the Limitations Act 2002, S.O. 2002, c. 24, Sch. B

[44]         Section 96(3) of the Act does not apply to civil lawsuits.  It applies to filing complaints with the Ministry of Labour.[2]

[45]         As to the Limitations Act, 2002, the appellant first paid the respondent vacation pay in December 2003.  The trial judge accepted the respondent’s evidence that he was not aware of his entitlement to vacation or public holiday pay before that time.  The trial judge held that the respondent’s lack of awareness as to his entitlement went to the issue of discoverability.  As a result, the respondent’s action, which was commenced in July 2004, was well within the two year limitation period in the Limitations Act, 2002

[46]         I see no basis to interfere with the trial judge’s conclusion that the respondent’s entitlement to public holiday and vacation pay should not be reduced on the basis of the operation of a limitation period. 

In this case it was only when the Court determined that the Plaintiff was in fact an employee and not a contractor that the Plaintiff could have ” discovered ” that he was entitled to vacation pay. Therefore , following the logic of the Court of Appeal in Evangelista, should he have not been awarded his unpaid vacation pay for his entire period of employment?

I am not sure that this case is the final word on this issue.

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Divisional Court of Ontario Clarifies that $2.5 Million Payroll for ESA Severance Pay is NOT Just Ontario Payroll:

In Hawkes v Max Aicher ( North America ) Lt ( 2021 ONSC 4290 Dambrot J. overturned a OLRB decision on judicial review and hopefully has ended the debate about whether when calculating the $2.5 million payroll threshold you only look at the payroll in Ontario or whether you look at the payroll of the the whole company and any related companies.

The Court found that the OLRB was plainly wrong and said as follows:

“The calculation of payroll under s. 64 of the ESA is not restricted to Ontario employment; employment outside of Ontario, including employment outside of Canada, must be included.”

Winning counsel was Wade Poziomka and Andrew Astritis at Ross McBride.

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Judge Ignores Outliers in Determining Commissions over Notice Period :

In Hawes v Dell Canada ( 2021 BCSC 1149) Justice Iyer had to determine the amount of commission that would have been earned over the notice period, much of which had not yet occurred.

This what the Judge said

[24] The parties’ disagreement about the calculation of the commission component of damages revolves around Mr. Hawes’ commission earnings for 2018. He made a couple of large sales to one of his public sector clients that year, earning a significantly larger commission. Mr. Hawes’ commission earnings from 2013 – 2019, the last full year of employment are:

2013 $162,156

2014 $133,166

2015 $163,822

2016 $66,709

2017 $166,042

2018 $346,959

2019 $167,328

[25] Mr. Hawes argues that the best indicator of what he would have earned in commissions during the notice period is the average of his last three years, which is $226,776.

[26] Dell argues that Mr. Hawes’ unusually high commission in 2018 and his unusually low earnings in 2016 should be excluded as outliers, and that his average commissions from the other five years from 2013 to 2019 represent the best estimate of what he would have earned in the notice period. This figure is $158,502.

[27] It is clear from the authorities that, where an employee’s earnings are variable, there is no set formula. The court must award what is fair in the circumstances to approximate what the employee would have earned during the notice period. Sometimes courts have used the average of the past five years of commission earnings: Veach v. Diversey Inc., [1993] B.C.J. No. 2420. Where an employee’s commission earnings have been on an increasing or declining trend in the years prior to dismissal, it may be preferable to use only the last year’s earnings: O’Reilly, at para 43. Where the past is not a reliable indicator, the court has made an estimate based on the whole evidentiary record: TCF Ventures at para 43.

[28] Mr. Hawes’ annual commission earnings were not inclining or declining. The evidence shows that were usually in the range of $162,000 to $167,000. It is not appropriate to take the average of the last three years of commission earnings because 2018 was an outlier and the evidence shows Mr. Hawes was very unlikely to have comparable sales during the notice period. Further, there is some evidence that the pandemic-driven economic downturn was likely to adversely affect sales to Mr. Hawes’ client list and his sales in 2018 would have increased his quota during the notice period. Considering all of the evidence, I find that the best estimate of what his annual commission would have been during the notice period is $165,000.

My Comments :

The calculation of incentive income can be very important in wrongful dismissal cases especially where that type of income forms a significant portion of the total compensation plan .

This case clearly sets for the various ways that Courts have dealt with this issue and that there is not one perfect way of doing it.

What this judge effectively did was use the  statistical  median  rather than the average, which is found by ordering the set from lowest to highest and finding the exact middle.

If we arrange the numbers from lowest to highest it looks like this








The exact middle number is $163,822 .

The Judge found the right number to be $165,000.

The advantage  of the medium rather than the average is that it ignores the distorting effect of outlier numbers.

What I find interesting is that neither party led any evidence as to what sales there actually were in the Plaintiff’s territory after he left, as presumably his territory and/or clients were given to another sales rep. If this evidence was ascertainable, it would have provided the Court with a more reliable basis for determining the actual income loss.

By the way, I never took a stats course and math was my second worse mark in high school.

P.S. My worst mark was French.

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Countinho v Taylor : Which One Will Prevail?

In Coutinho v Ocular Health the Court decided that IDEL did not change the common law of constructive dismissal so that the layoff, even though allowed under the ESA, was still a dismissal under the common law .

In Taylor v Hanley Hospitality the Court decided the opposite and said that IDEL oveturned the common law and thus a IDEL layoff was not a dismissal.

Ocular Health is seeking leave to appeal from Divisional Court ( to be heard in writing on September 22, 2021) . This is going to Div Ct because it is an interlocutory motion as the case will now proceed to a trial to determine the reasonable notice period.

But because the decision in Taylor brought the case to an end, the decision was final and thus the appeal will be to the Court of Appeal.

Will we possibly have two different decisions on the same legal issue ? 

I am advised by a good friend of mine who adores civ pro that the more likely result is that the Div Ct will defer to the Court of Appeal and not hear argument until the Court of Appeal renders their decision.

I hope so. We need an answer to this issue ASAP.

As someone said to me recently, ” I am getting whiplash reading your blogs .”

Court Rules That IDEL Leave is NOT a Constructive Dismissal:

In Taylor v Hanley Hospitality ( 2021 ONSC 3135 ) released June 7, 2021, Ferguson J. ruled that Countinho v Ocular Health Centre ( 20121 ONSC 3076 was wrongly decided and thus does not have to be followed. .The Plaintiff was put on IDEL leave on March 27, 2020, then recalled and returned to work on September 3, 2020.

In essence the Court found that the ESA provisions displace the common law which says that in most cases a temporary layoff is a termination . Furthermore to rule otherwise would make the ESA amendments irrelevant as it would not protect employers from lawsuits.

Here is part of the Judges’ analysis :

[21] I agree with the defendant’s submissions regarding this case:

(i) no matter which authority one wants to consider on the point – it offends the rules of statutory interpretation to give an interpretation that renders legislation meaningless. That issue was never addressed in Coutinho; 

(ii) Coutinho never addressed the consequential analysis – what does IDEL and the Regulation actually mean if not what Tim Hortons says it means?;

(iii) what we see from the cases is that s. 8(1) simply sets out that the ESA does not set out an exclusive forum for addressing matters set out in the Act. The employee can make a complaint under the Act or seek redress in the courts; 

(iv) the courts have never said that the Act does not or cannot displace the common law. In fact, they have said the opposite. The Court of Appeal addressed this in Elsegood4 (relied upon by the plaintiff in this case):

(v) if we paraphrase and apply that reasoning to this case, we get this: 

(a) the irony is that Elsegood was a constructive dismissal case; 

(b) the court put it succinctly: “Simply put, statutes enacted by the legislature displace the common law”; 

(c) in Elsegood, the court addressed the fact that s. 56 provides that a person was terminated “for the purposes of section 54″ of the ESA. The employer was arguing that the employee was not terminated at common law. The court disagreed. The court found that “A s. 56(1) termination is a termination for all purposes”. The court stated that it is a “faulty premise that the common law continues to operate independently of the ESA”.

v) if we paraphrase and apply that reasoning to this case, we get this: 

(a) The employee was on a leave of absence (IDEL) for all purposes; 

(b) The employee was deemed not to be laid off for all purposes; 

(c) The employee was not constructively dismissed for all purposes; 

(d) The employee cannot be on a leave of absence for ESA purposes and yet terminated by constructive dismissal for common law purposes. That is an absurd result. That is the same kind of “untenable” result that the employer was seeking in Elsegood.

(vi) in summary, s. 8(1) has never been interpreted to go as far as the court went in Coutinho and the courts have never before held that s. 8(1) prevents the ESA from displacing the common law. The Court of Appeal, which is binding on this court and the court in Coutinho, has said the opposite, in a constructive dismissal case;

(vii) S. 8(1) of the Act merely confirms that the ESA is not the exclusive forum to seek redress for issues involving the Act;

My Comments :

We now have two cases within two months which come to completely opposite conclusions. I am sure that this will be heading to the Court of Appeal soon. Hopefully they will give us a clear and concise answer.

Insofar as this Judge is concerned, an employee could be put on IDEL from March 2020 to July 3, 2021 ( 17 months) and have no remedy in law.

Presumably to this judge  the pre-COVID rules would also displace  the common law. This would mean that employers could temporarily layoff any employee for up to 35 weeks. Does the mean that an employee could be recalled from IDEL on July 3, 2021 and then immediately be put on a 35 week temporary layoff, again without any legal recourse? That would mean that employee could be without pay for up to 25 months without any legal recourse.

That would certainly be a very big change in the law.

Does this now mean that instead of terminating an employee, any employer could just  issue a temporary layoff notice of 35 weeks.? When they issued a recall notice 35 weeks later, many employees would either have started another job or simply did not wish to return to such unstable employment. Furthermore I am not sure that the ESA allows for the employee to claim that the layoff is a sham ( for instance because the employer immediately hires a replacement ) and therefore the temporary layoff is a disguised termination. This could easily lead to abusive employer behaviour.

In this particular case, the employer did in fact recall the employee after 5 months. What would be the result if instead of alleging constructive dismissal the Plaintiff claimed breach of contract for non-payment of wages? The law of contract allows the innocent party to either sue on the contract ( thus only claiming lost wages ) or to repudiate the contract ( by claiming constructive dismissal ). In this case, the employees’ loss would be limited to the actual loss which was 5 months, so suing for back wages vs claiming constructive dismissal damages would produce the same result. My quick reading of the IDEL rules would only seem to exclude the right to claim constructive dismissal, not wages owing from a breach of contract.

The one thing you can say about employment law in Ontario is that it certainly not getting easier or more predictable .

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