In Marques v Delmar International ( 2016 ONSC 3448 CanLII ) Diamond J. properly found that entitlement to a bonus was to be calculated as of the end of the reasonable notice period, not the date of termination. The bonus plan guaranteed a ” minimum bonus of $25,000 after your first year of employment”
The Plaintiff first day of work was August 11, 2014. He was terminated on April 7, 2015.
After assessing the Bardal Principles the judge commented as follows:
The assessment of reasonable notice is certainly an art and not a science. The plaintiff’s age, management position and length of service all warrant consideration. The cases provided by the plaintiff demonstrate a range of reasonable notice periods.
The judge awarded him four months notice taking his notice period to end on August 7, 2015, four days short of his one year anniversary.
The Judge then said :
This is short of the 12 month anniversary of the plaintiff’s commencement dates, and as such the guaranteed $25,000.00 minimum bonus payment is not due and payable by the defendant.
The Plaintiff submitted case law to support a notice period of 7 months. The Defendant submitted no case law at all on the issue of notice.
It gets even worse. In fact the Plaintiff mitigated his damages as of July 27, 2015 which was 3.5 months after termination. Therefore the only real reason for the trial was this bonus issue . The Judge properly determined that the fact that the employee gets a job earlier or later than the notice period is irrelevant ( OCA in Holland v Hostopia ( 2015 ONCA 762 Can LII) . He identified that the determination of the notice period is an art and not a science. In other words he had a broad discretion in setting the notice period.
He exercised that discretion in such a way that the plaintiff failed to get a minimum $25,000 bonus because he missed the mark by a lousy 4 days.
This Plaintiff won the battle but lost the war.