In Carroll v Oracle Canada ( 2025 ONSC 4889) Justice Koehnen had a situation where the defendant initially only paid the ESA termination on the Plaintiff’s base pay and failed to pay him the commission he had earned over the 8 weeks statutory period. They finally paid the Plaintiff 8 months later.

The judge was not happy with this conduct and found that it was a breach of the duty of good faith and that the real purpose was to ” try to force a financially vulnerable employee into a less favourable settlement position ”

To punish the defendant and to encourage others to not play these games the Judge awarded punitive damages in the same amount as the delayed payment, namely $57,740.

Comments:

In the olden days, the SCC said in Wallace v United Grain Growers that the Court could award damages for bad faith actions in relation to the termination of employment. They gave, as an example, the use of hard ball tactics by an employer over severance issues. This case is a prime example of the how the Courts use the principle of bad faith to seek to regulate bad behaviour by employers.

The other risk that employers could encounter is that a failure to abide by the requirements of the ESA ( or the employment contract) could give rise to an argument that by doing so they have repudiated their own contract. That would mean that the employer could no longer rely on an otherwise valid termination clause and thus be required to pay reasonable notice.

If you like 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  Carroll v Oracle Canada ULC , 2025 ONSC 4889 Justice Koehnnen had a 61 year old Global Strategic Client Executive making in excess of $750K per annum with 3 years and 7 months service . He was awarded 12 months notice .

The Judge also made some interesting findings and comments :

1. People who make more money should get a longer notice period because there are less of these jobs available .
2. The absence of a letter of recommendation therefore tends to a longer notice period.
3. The Plaintiff’s income was based largely on commissions, which fluctuated from year to year. The judge used a 3 year average.
4. The judge denied the Plaintiff of the RSU that would have vested within the notice period because of the following language in the RSU Plan:

   Section 11 of the Amended and Restated 2000 Long-Term Equity Incentive Plan Stock Unit Award Agreement For Employees Outside the U.S. provides, among other things:

   (vii) this Award and the Shares subject to this Award, and the income and value of same, are not part of normal or expected compensation or salary for any purpose including, but not limited to, calculating any severance, resignation, termination, redundancy, dismissal, end of service payments, bonuses, long-service awards, pension or welfare or retirement benefits (including the 401(k) Savings and Investment Plan and the Deferred Compensation Plan) or similar payments and in no event should be considered as compensation for, or relating in any way to, past services for the Company, the Employer or any Parent, Subsidiary or Affiliate;

   (xiii) no claim or entitlement to compensation or damages shall arise from forfeiture of this Award resulting from the termination of Participant’s employment (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment agreement, if any), and in consideration of the grant of this Award to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any such claim against the Company, any Parent, Subsidiary or Affiliate or the Employer, waives the ability, if any, to bring any such claim, and releases the Company, any Parent, Subsidiary or Affiliate and the Employer from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, Participant shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim;

5. He awarded the value of benefits at 10% as ” Courts have consistently approved awards for benefits equal to 10% of salary.”

If you would like 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