Month: December 2025

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

 

 

In  Kirke v Spartan Controls Ltd, 2025 ABCA 40, Justices Watson, Kirker and Grosse had a fact situation in which the Plaintiffs’ shares in a private company were governed by a Unanimous Shareholder Agreement which contained the following two clauses that dealt with the right of the Company to buy back the Plaintiff’s shares:

2.4 In the event any Shareholder’s employment or association with the Company is terminated, for any other reason than above stated, before reaching normal retirement age, then the Company shall have the exclusive right (but not the obligation) to purchase all (but not less than all) Shares then owned by such Shareholder. Such right may be exercised by notice in writing to such Shareholder at any time within ninety (90) days after his employment terminates. 

… 

2.6 The Company may at any time, by Ninety (90) days notice in writing to the Shareholder, require that the Shareholder sell all or a part of the Shares then owned by such Shareholder to the Company. Upon the elapse of the notice period to the Shareholder [sic] shall have the obligation to sell and the Company shall have the obligation to buy such Shares set out in the notice. 

The plaintiff was terminated and the Defendant demanded the buy back of the shares within 90 days of his actual date of termination.

The trial judge found , and the Court of Appeal agreed, that relying on section 2.6 (but not 2.4 ) that the Defendant had the right to buyback the shares after 90 days of the actual date of termination.

[13] The summary trial judge accepted that the SHPS payments were a part of Mr. Kirke’s employment compensation and therefore, as a starting point in the analysis, Mr. Kirke had established an entitlement to claim SHPS payments during the reasonable notice period. The summary trial judge was not satisfied that section 2.4 of the USA unambiguously took away Mr. Kirke’s common law right because the word “terminated” could be interpreted as referring to the end of the reasonable notice period. However, he found that section 2.6 of the USA plainly enabled Spartan Controls to trigger a buy back of shares at any time on 90 days’ notice and that this agreed upon term unambiguously limited Mr. Kirke’s common law right to damages. Reassured by the principle from Hamilton v Open Window Bakery Ltd, 2004 SCC 9, that the defendant’s least onerous method of performing a contract should be the basis for calculating damages, the summary trial judge assessed Mr. Kirke’s damages to include the loss of SHPS payments for the limited period of 90 days from the date of receipt of notice.

My Comments:

Most of the RSU or stock option agreements that I see in my mediation practice only contain a clause similar to Article 2.4 which speaks  of the right to repurchase shares, or the forfeiture of shares, in relation of the termination of employment.  This case makes it clear that absent express language ( which may have to comply with the ESA) referring simply to “termination of employment ” actually means ” lawful termination of employment” or in another words,  the relevant day is not the actual day the employer terminates the employment but rather the last day of the reasonable or contractual notice period .

Foe 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  Liggett v. Veeva Software Systems, Inc. and Veeva Systems Inc., Ontario Superior Court Justice Des Rosiers was faced with the following RSU termination clause.

3. Vesting This option vests and becomes exercisable in accordance with the vesting schedule set forth in the Grant Notice.

In no event will this option vest or become exercisable for additional shares after your Service has terminated for any reason, as further described in Section 5 below.

5. Termination of Service

If your Service terminates for any reason, this option will expire immediately to the extent this option is unvested as of your termination date and does not vest as a result of your termination of Service.

For purposes of this option, your Service will be considered terminated as of the date you are no longer actively providing services to the Company or any Parent or Subsidiary (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are providing services or the terms of your service agreement, if any), and will not be extended by any notice period of any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where you are providing services or the terms of your service agreement, if any. Unless otherwise determined by the Company,

(i) your right to vest in this option under the Plan, if any, will terminate as of such date, and (ii) the period, if any, during which you may exercise any vested portion of this option after termination of your Service will commence on such date. The Committee shall have the exclusive discretion to determine when you are no longer actively providing services for purposes of your option grant (including whether you may still be considered to be providing services while on a leave of absence).

The judge found that this clause was invalid for the following reasons:

First, the provision “in the event of termination of your Service” violates the ESA since the date of notice is not the date of termination of the employment contract, as statutory entitlements require a minimum notice period of 1 week per year of service: s. 57. 

[49] Second, the language of “the date that you are no longer actively providing services to the company” is the very clause that was discussed in Matthews and found not to deprive the employee of their right to bonus or benefits arising during the notice period. 

[50] Third, Mr. Liggett also raises the discretionary nature of the entitlement as another indicia of ambiguity. In the vesting clauses applicable to the stock options and the RSUs, an additional paragraph is inserted that provides as follows: “The Committee shall have the exclusive discretion to determine when you are no longer actively providing services for the purposes of the restricted stock unit, including whether you may still be considered to be providing services while on a leave of absence.” 

[51] I agree with the plaintiff that this discretionary authority, without providing guidelines for the exercise of such discretion, gives an ambiguous message to employees as to whether they are or are not entitled to the vesting of the stock options. 

[52] Finally, the contract is particularly convoluted in its format and readability. To understand what is applicable, one must read a section of the contract and then replace such section with the appropriate country in which an employee works. To understand the applicable clause requires a cutting and pasting between different sections of a lengthy contract. 

The Judge then succinctly summarized how Courts should view these types of clauses that purport to limit recovery of RSU’s in a termination.

[54] It is incumbent on employers to state clearly to the employees what will happen upon termination. As referenced above, language that violates the ESA voids the termination clauses because employees may be misled as to their entitlement and not recognize that they are forfeiting rights the common law gives them. I conclude that a similar approach must be used in interpreting contractual language that seeks to deprive employees of bonus or stock options to which they would have been available during the notice period. 

My Comment:

I am advised by counsel that this matter is not being appealed.

This case confirms that the method of analyzing  RSU clauses is no different than the method  applied  in examining termination clauses that do not involve equity.

This would seem to be a different approach than the one applied in  Wigdor v. Facebook Canada Ltd., 2025 ONSC 4861.

The Ontario Court of Appeal is hearing the Wigdor appeal on April 23, 2026 so perhaps we will have more clarity on that issue soon.

There is no proper citation for this case, so if you like a copy 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 Chan v. NYX Capital Corp. 2025 ONSC 4561 the Court had to determine the proper notice period for a 47 year old middle manager making $175,0000 / year ( 15 years of prior experience) who only worked for three months.

The Judge awarded a reasonable notice period of 3 months .

Of particular interest is what the Judge said about the difficulty that the Plaintiff would have in explaining to a potential employer why he was let go after only three months and how that would  affect the notice period. This is what the Judge said:

Finally, I consider the availability of similar employment. In my view, this factor urges toward a longer notice period. The courts have recognized that where an employee has a very short period of employment, a longer notice period may be warranted. In Grimaldi v. CF+D Custom Fireplace Design Inc., 2023 ONSC 6708, the court awarded 5.5 months of notice to a plaintiff who had been employed for five months. The court reasoned that the longer notice period was warranted for Mr. Grimaldi, because a very short period of employment, particularly for someone of Mr. Grimaldi’s age and experience, made the search for other employment more difficult because it would “require him to explain to prospective employers why he was terminated so soon after being hired” (at para. 49).

The Court also found that because termination clause contained numerous references to ” any time and  for any reason ” and ” at any time ” that the entire termination clause, including the reference to probationary employment, made the termination clause illegal as it offended  the ESA. This whole issue will soon be addressed by the Court of Appeal in a upcoming appeal of two cases involving the same issue.

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