Month: March 2026

This is the ” any time ” and/or ” any reason ” set of cases heard together by the Ontario Court of Appeal .

The main issues argued were:

1. Standard of Review

2. Are either or both of these phrases contrary to the ESA?

3. Does the other language in the termination clauses save any alleged defect?

4. To what degree is any do we look at the parties intentions?

Things that I picked up.

1. There are apparently 47 separate provisions in Ontario statutes that prevent an employer from firing an employee even of they pay the ESA termination payments. These include the Employment Standards Act, the Occupational Health and Safety Act, The Human Rights Code, the Securities Act and the Labour Relations Act. Therefore, even if the clause says that if we fire you for any reason you will still get the ESA amounts, this is not what then law provides, , as theses statutory provisions protect the employee from even being fired. The statutory remedy can be reinstatement, which is not available under the common law.

2. Counsel for the employees stressed the fact that all employers have to do to be compliant with the ESA is to not use those terms. No one made a submission as to why these words would even be necessary.

3. The Court seems to want to bring some certainty to this whole issue, which may be one of the reasons why they heard the two cases together.

4.Employer counsel pointed out that many previous cases allowed this exact language. Employee counsel pointed out that in most of those cases, the issue was not addressed because it was not even raised.

5. There are recent cases where the Court of Appeal has found that certain termination clauses are legal, presumably putting to rest that it is “impossible ” to draft such a clause.

6. Some of the judges questioned how any average person could understand the complexities of the ESA termination provisions .

7. For the Baker case to be overturned, it may not be enough for the Court to find that the Judge was wrong in his ruling on the”any time’ argument because there were also issues with the “with cause” termination provision because of Waksdale. That issue does not arise in Li because the only alleged defect is the “any time for any reason” argument. It would very difficult, if not impossible, for a 3 panel Court of Appeal overturn a prior Court of Appeal decision. For that you would need a 5 panel Court, which apparently was requested but refused.

8. In Li the Employee counsel argued that the trial judge failed to even consider the reasons in Baker as to why the subject clause was illegal .Rather he simply said that because the overall termination clauses were different, he did not have to follow Baker.

The entire panel of Judges certainly ” got it” . They were well prepared and asked many penetrating questions of counsel.

I do not know who won. I, like you, must await the Courts’ reasons.

In  Kirchmair v. EXP Global Inc., 2025 ONSC 3103, Justice Healey had a situation where the Defendant intentionally withheld an earned bonus of $148,000 from the Plaintiff in order to coerce him into agreeing a new, less favourable,  bonus arrangement.

The bonus plan was non-discretionary and calculated on a mathematical formula with agreed payment dates .

This bonus  payment  was owing since  early 2017 and remained unpaid as of the trial in 2025, some 8 years later.

In addition the Defendant was consistently  late in paying past bonuses by approximately 7 months.

The Judge found that the Defendant acted  in bad faith in the following manner:

1. The refusal to pay the outstanding bonus and the persistent late payment of previous bonuses.
2. The attempt by the Defendant to coerce the Plaintiff into agreeing to a less favourable bonus structure by withholding his bonus payment.
3. Trying to build a case regarding his post termination conduct to lessen or eliminate their bonus obligation.

Even though there was no medical evidence of the mental stress suffered by the Plaintiff for the failure to receive his bonus, the Judge awarded the Plaintiff $150,000 in what was characterized  as moral damages.

Quere: Is it just a coincidence that the award for moral damages was equal to the amount of the unpaid bonus?

As personal aside, if someone owed me $148,000 for 8 years, you can be sure that I would be severely mentally distressed.

The total settlement including 21 months termination pay ( pursuant to the employment contract ) plus vacation pay on the bonus , plus the bonus plus the moral damages comes to $695,537.

Then you add PJI for 8 years and costs to be determined.

Here is an interesting side note. The decision is dated May 26, 2025. The lawyers only received it March 12, 2026. Apparently the Court admin staff forgot to send it out.

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 Gale v Fairmont Hot Springs Resort Ltd., 2025 BCSC 2690 (CanLII) Justice Stephens awarded a 9 months notice period to a 63 year old Director of Sales and Marketing with 3.4 years service. The plaintiffs’ compensation was a base salary of $142,00 plus a bonus up to 25% of his base.

The Plaintiff was given notice of termination on February 8, 2024 and was given working notice until February 29, 2024.

The fiscal year end of the Defendant was November 30, 2023 and was actually paid out in February of 2024. For the first 6 months of the fiscal year he was  paid a bonus of $52,300 but was paid nothing for the last 6 months of the fiscal period. His payout for the first 6 months of the fiscal year was three times the maximum entitlement. In the previous 2 years, his bonus was equal to 97% of the 25% maximum. The total bonus received in the 30 months that he achieved a bonus averaged $4,000 per month.

The relevant part of the employment contract regarding the bonus plan was as follows:

9. SLT Incentive Plan: You will be eligible to participate in the Company’s SLT Incentive Plan. The SLT Incentive Plan provides for a fiscal year annual performance incentive of up to 25% of your Base Salary (“Incentive Bonus”) subject to the achievement of the annual goals and objectives that are to be annually agreed to between the Company and you and approved by the Company’s Board of Directors. Whether any Incentive Bonus is issued and the amount of any such Incentive Bonus shall be at the sole discretion of the Company and any Incentive Bonus issued in any one year does not mean that you will be entitled to or receive an Incentive Bonus in any other year. Eligibility for any Incentive Bonus shall be subject to you not having ceased employment with the Company, regardless of the reason for or manner of termination, during the year for which the Incentive Bonus would be payable and for greater certainty, is not earned until the date that such Incentive Bonus is determined by the Company to be payable to you.

The first issue was whether the Plaintiff was entitled to a bonus for the period June 8, 2023 to November 30, 2023.

To me it seems obvious that the Plaintiff should have received this bonus because he qualified under the terms of the contract in that he was employed not only as of November 30 2023 but also at the time of payout in February as he was on actual working notice until February 29, 2024.

This what the Judge said :

[13]      On February 8, 2024, Fairmont wrote to advise Mr. Gale that Fairmont had terminated Mr. Gale’s employment on a without-cause basis. The termination letter provided for a period of working notice of three weeks, from February 8 to February 29, 2024, and notified him that his company benefits, including health and dental insurance, would be terminated effective February 29, 2024. The termination date was February 29, 2024.

However the Judge determined that in order to qualify for the bonus there had to be an analysis of the entitlement to a bonus over the notice period. This is what the Judge said on that issue.

[97]      Damages, thus, must be awarded for bonuses earned during the notice period if the employee demonstrates that a bonus was an integral part of the employee’s compensation, having regard to four factors that are helpful in determining whether this is the case in any particular situation:

(1)        A bonus is received each year although in different amounts;

(2)        Bonuses are required to remain competitive with other employers;

(3)        Bonuses were historically awarded and whether the employer had never exercised his discretion against the employee; and

(4)        The bonus constituted a significant component of the employee’s overall compensation.

The Judge found that all four factors applied so he awarded a bonus for the period ending November 30, 2023.

However, since a 9 months notice period would only take the employee to November 9, 2024, the Plaintiff was not entitled to any further bonus after November 30, 2023. In fact the plaintiff would have had to be awarded a notice period ending February 28, 2025 ( 14 months ) to get any bonus over the notice period or the stub period that he worked from December 1, 2023 to February 29, 2024.

It is even more surprising how the Judge calculated the bonus owing for the last 6 months of the fiscal year. The Judge completed ignored the fact that in the previous 6 months the plaintiff received an extraordinary high bonus of $52,300 and instead simply took the average of the prior 2 complete years where he was paid 97% of the 25% as set out in his contract. This is what the Judge said :

[107]   Nevertheless, this bonus amount was paid for the first six months of the 2022/2023 year. There is no evidence to suggest the same amount would have been paid to Mr. Gale for the last six months of that fiscal year as well. However, there is also no evidence that Fairmont had determined that the bonus given in June 2023 satisfied Mr. Gale’s bonus for the entirety of the fiscal year. Instead, the wording of the June 7, 2023 letter assigns the bonus to only the first six months of the year.

[108]   Given the history of Mr. Gale’s previous bonus amounts and their quantum, and having regard to the maximum bonus for one year under the Employment Agreement of 25 percent of base salary, I find that Mr. Gale has an entitlement to a bonus for the second six months of the 2022/2023 fiscal year calculated as 97 percent of the maximum bonus for that six-month period, being 97 percent of $17,750, equalling $17,217.50 (97 percent x 0.5 x 0.25 x $142,000).

In essence the Plaintiff got a below average bonus for the period that he actually worked and zilch bonus over the notice period.

This was a similar result as in Adelman v. IBM Canada Limited, 2026 ONSC 420.

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 Brandt Tractor Ltd. v Melissa Morasse, 2026 ONSC 992 , Justice Backhouse head the following fact situation in a audial review of a HRT decision:

“Ms. Morasse was an employee of Nortrax Canada Inc.(“Nortrax”)2 She was on maternity leave when Nortrax sold its assets to Brandt and ceased to carry on business. Brandt hired all but 30 of the 650 employees of Nortrax. None of Nortrax employees who were on leave during the time of the asset transfer were contacted, interviewed or offered positions. The Tribunal found that Brandt discriminated against Ms. Morasse with respect to employment on the basis of sex and family status, contrary to the Human Rights Code, RSO 1990, c. H.19 (the “Code”) when it did not consider Ms. Morasse for employment with Brandt and her employment with Nortrax was terminated.”

The Court dismissed Brandt’s application finding that the HRT was correct in :

1. Even though Brandt as the successor employer had no legal relationship with the Complainant , it was a proper party to the complaint because :”

“Rather, it was Brandt’s own allegedly discriminatory conduct in its hiring process that wasthe basis of that determination.”

2. Even though Brandt claimed they did not know that the Complainant was on maternity leave, ” Brandt knew or ought to have known that its policy not to interview anyone on leave would affect persons away on protected leave. “

3.” Third, the Supreme Court of Canada has long recognized that identical treatment may resultin inequality.3 The fact that Brandt’s hiring policy was applied to all persons on leave andwas based on business-related considerations did not render it non-discriminatory”

4. “the prohibited ground need only be a factor and not the sole factor in the decision that led to the adverse impact “

For a copy of this decision, email me at barry@barryfisher.ca

To book a mediation, go to my calendar at www.barryfisher.ca

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