Month: January 2026

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

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