In  Silva v. Royal Bank of Canada, 2026 ONSC 3841 Justice Casullo had a situation where a 47 year old financial planner with 12 years service was terminated for allegations of just cause in relation to her obligations as a financial planner .

The Mutual Funds Dealers Association, of which the Defendant was a member, has certain reporting requirement;

1. Pursuant to MFDA Policy No. 6, Information Reporting Requirements, Part B, 6.1, Members [RMFI was a Member] shall report to the MFDA: 

(b) whenever a Member is aware, through a written or verbal complaint or otherwise, that the Member or any current or former Approved Person [Ms. Silva was an Approved Person] has or may have contravened any law or regulatory requirement, relating to: 

(i) theft, fraud, misappropriation, forgery, money laundering, market manipulation, insider trading, misrepresentation, or unauthorized trading; 

(ii) a breach of client confidentiality; 

(iii) engaging in securities related to business outside of the Member; 

(iv) engaging in an undeclared outside activity; or 

(v) personal financial dealings with a client. 

Upon her termination the Defendant the required report was filed.

They also filed another required from called a NOT which is described by the Judge as follows:

1. The NOT is a regulatory filing made with the OSC when a registered individual leaves a sponsoring firm. As noted at the beginning of these reasons, The NOT is filed with the National Registration Database using Form 33-109F1, and is notice to all interested parties that the individual is no longer authorized to act on behalf of the sponsoring firm. 
2. One of the NOT’s purposes is to provide regulatory oversight, ensuring that if an individual leaves amid allegations of misconduct, future employers can conduct appropriate due diligence during the hiring process. 
3. The NOT, completed by Ms. Papaevangelou, provided that Ms. Silva was dismissed for cause, and reported that she had been investigated for possible material violations of fiduciary duties, regulatory requirements or compliance procedures. Further, Ms. Silva had repeatedly or materially failed to follow compliance policies or procedures. The “Details” section sets out the following: 

The investigation determined that, contrary to RBC policies, the individual forwarded confidential client and RBC information to her personal email account and processed authorized transactions for clients prior to obtaining their signatures. 

The OSC conducted their investigation:

1. On October 30, 2018, four months later, the MFDA released the results of its review. The MFDA found Ms. Silva to be in breach of MFDA Rule No. 2.1.1(b) Standard of Conduct; MFDA Rule 5.1(b), Requirement for Records; and MFDA Rule No’s 2.5.1 and 1.1.2, Compliance by an Approved Person. 
2. The MFDA labeled the breaches as “minor in nature”. The MFDA took no action beyond a cautionary letter designed to prevent similar breaches in the future. Possible sanctions included a warning letter or formal disciplinary proceedings.

The Judge found that the Defendant failed to prove just cause and awarded 16 months notice

.However the Judge went on to award significant additional damages under the category of ” Loss of  Earning Capacity”

1. It has been accepted that damages for loss of earning capacity can be appropriate in a wrongful dismissal claim. The Court of Appeal in Boucher v. Wal-Mart Canada Corp, 2014 ONCA 419, 120 O.R. (3d) 481, at para. 103, commented that “a claim for future loss of income can arise in an employment context where a plaintiff has not recovered from the effects of the wrongdoer’s action and the plaintiff has thus suffered a loss of any earning capacity because of the wrongdoer’s tortious conduct.” This speaks to the principle of putting the plaintiff in the position she would have occupied had she not been wrongfully dismissed. 
2. The Court of Appeal declined to award Ms. Boucher with loss of opportunity damages. Ms. Boucher did not have an employment contract that guaranteed her employment to age 65. Instead, the Court of Appeal found she was entitled to be put in the position she would have been in if the contract had been performed: employment subject to dismissal in accordance with the terms of her contract. 
3. I find this case to be distinguishable from Boucher. While Ms. Silva was not guaranteed employment to age 65, her inability to find comparable employment was directly linked to the filing of the NOT by RBC. This wrongdoing has thus left Ms. Silva unable to work in the financial planning industry. 
4. In Ojanen v. Acumen Law Corporation, 2021 BCCA 189, the British Columbia Court of Appeal awarded $100,000 in loss of opportunity damages to Ms. Acumen, an articling student whose legal career was delayed by her wrongful dismissal. Ms. Ojanen’s employment was terminated for cause after the employer made unfounded allegations of plagiarism and disclosure of confidential information. Ms. Ojanen sought damages for the loss of income that she suffered as a result of not being able to become a lawyer at the end of her articling term. The trial judge found that Ms. Ojanen had no reasonable prospect for employment in the legal profession in Canada while the allegations brought by the Appellants were being pursued against her. 
5. In my view, Ms. Silva’s case is similar to Ojanen. Ms. Silva had no reasonable prospect for employment in the financial planning profession while the allegations brought by the NOT were filed. 
6. Ms. Silva testified that she had no intention of retiring before age 65 owing to her late arrival in Canada and desire to accrue CPP. This position was not shaken during cross-examination. 
7. Ms. Silva is currently 55 years of age. She has expressed a desire to return to the financial services industry as a financial planner. I am satisfied she will do so. 
8. Assuming she resumes her career given the dictates of my judgment, a damages award to age 60 would afford Ms. Silva five years to secure a position in the field, re-build her client base, and re-establish her clients’ trust. Five years is not unrealistic – both Ms. Silva and Mr. Agardi confirmed it took Ms. Silva eight years to build her first book of business. 
9. I am satisfied Ms. Silva has established on a balance of probabilities that she is entitled to an award for loss of earning capacity.
10. Ms. McKeating has quantified Ms. Silva’s future income and benefits losses at $1,919,272 if Ms. Silva were to retire at 60. This figure includes adjustment for negative contingencies, including disability and mortality. 
11. I award Ms. Silva $1,919,272, to which shall be added pre-judgment interest. 

The judge also said this about the Notice of Termination filed with the OSC:

Notice of Termination 

1. While I found that the wording contained in the NOT was not defamatory, in light of my reasons, it is now incorrect. RBC did not have cause to dismiss Ms. Silva. 
2. I order that RMFI file with the MFDA (now IIROC) a notice of correction of the NOT. If the parties cannot agree on the form of correction, I will remain seized of the issue to ensure that the final correction accurately reflects the outcome of the case 

My Comments:

The damage claim for Loss of Future earning capacity is a concept well known in the personal injury field. Under tort law, you are entitled to be put in the same position as if the tort  had not occurred . In other words, if you suffered a permenant  loss of an arm and your prior employment was that of a carpenter, then you would calculate how much more money you could earn in the future had you not lost that arm

But contract law is different. In contract, you are to put in the same position had the contract been complied with. In this case, had the Defendant not alleged just cause, they would owe her 16 months pay in lieu. Period.

The Judge seems to have awarded these extra damages because of the filing by the employer of the NOT . The employer is required by law to file such a notice . The OSC investigated and four months later they virtually cleared her. 

Therefore how can the employer be on the hook for filing a report that they are compelled by law to report. The OSC conducted the investigation and cleared her.

Yes there well have been a lingering stigma affecting her future career because of the Defendant’s position of just cause but how is that different from any employee who is fired for cause and then has to wait years for a Court to clear their name?

In this case, her name was cleared in 4 months. Therefore the stigma of the charges no longer exists.

The Judge also found that the Plaintiff was entitled to $150,000 for aggravated damages and $250,000 for punitive damages

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In Wilsher v Olympic Wholesale ( 2026 ONSC 3620) Justice Woodley awarded  19 months notice to a 55 year old Night Shift Supervisor with 17 years service.

Nothing special.

The Plaintiff was fired as he admitted for the many years as he had been a supervisor, he and all the night supervisors, had engaged in the practice  of “topping up” ” time cards. If an employee worked through his  or her lunch or break or is they completed their assigned work before the end of the shift, the supervisor would go into the time recording system and adjust the system to show they worked to the end of their shift, whcn in fact they had not.

The Judge found that this was not just cause for the following reasons;

1. This had been a long standing and consistent  practice among the entire night workforce.
2. The plaintiff did not personally benefit from this practice.
3. The Union contract guaranteed 40 hours a week for the peeople he was supervising.

However the Judge found that there were many factors about the investigation that warranted additional damages.

[129]      In the present case, there is sufficient evidence that Olympic engaged in bad faith and unfair dealings when dismissing Willsher that would justify awarding an extended notice period to Willsher. This evidence, includes inter alia, the following:

1.    The “investigation” specifically targeted Willsher without any attempt to determine the nature and extent of the “topping up” practice.
2.    No other supervisors were interviewed about the “topping up” practice, nor were other supervisors’ edits of employees’ timesheets audited in the course of the “investigation” as, according to Peroff,[4] Olympic “was not required to prove the plaintiff’s case”.
3.    Willsher’s October 5, 2023 “interview”, conducted by Peroff and Sousa, closely resembled an interrogation and not an investigation or interview. The meeting was implemented without notice, without explanation, without due process, without representation and was conducted in a high-handed, one-sided and biased manner, intended to intimidate Willsher.
4.    Willsher’s replacement, Jacob Bailey, who assumed Willsher’s position as Night Shift Supervisor in October 2023, was terminated in December 2025 (immediately prior to trial) “for the same practice”[5] which supports a finding that Willsher’s termination was personal, directed, and intended to remove Willsher from the company, not to correct or prevent the “topping up” practice from continuing.
5.    The termination letter provided to Willsher on October 5, 2023, accused him of “fraudulent behaviour” and “theft of time”. Willsher’s ROE recorded “dismissal/suspension” and prevented him from obtain unemployment benefits. Further, Willsher was not provided with any references after 17 years of employment with Olympic and, as such, he was inhibited in his search for new employment and mitigating his losses.

[130]      Despite attempts to secure new employment, Willsher has been unable to find a new job and has suffered embarrassment and humiliation at the hands of Olympic. In these circumstances, Willsher is entitled to damages in the form of an extended notice period extended to the date of release of this decision which equates to a further 14 months’ notice, for a total notice period of 33 months.

My Comments :

Most judges punish bad behaviour by employers by awarding either punitive or aggravated damages. However this Judge ruled that :

“the actions of Olympic in terminating the employment of Willsher do not rise to a level that would warrant punitive damages.”

The Judge made the same comment about aggravated damages.

Instead the Judge awarded an 14 month extension  of the notice period, which given his salary of $62,000, amounted to an award of approximately $72,000.

So as far as I can see there are now at least 3 levels of employer misconduct that will bring about an award in excess of reasonable notice.

Bad = Extension of the notice period

Really Bad: Aggravated damages

Really Really Bad: Punitive Damages

However there is a bigger problem. The Supreme Court of Canada in Honda Canada v Keays ( 2008 SCC 39) said this  about extending the notice period to compensate for bad employer behaviour.

Moreover, in cases where damages are awarded, no extension of the notice period is to be used to determine the proper amount to be paid. The amount is to be fixed according to the same principles and in the same way as in all other cases dealing with moral damages. Thus, if the employee can prove that the manner of dismissal caused mental distress that was in the contemplation of the parties, those damages will be awarded not through an arbitrary extension of the notice period, but through an award that reflects the actual damages. Examples of conduct in dismissal resulting in compensable damages are attacking the employee’s reputation by declarations made at the time of dismissal, misrepresentation regarding the reason for the decision, or dismissal meant to deprive the employee of a pension benefit or other right, permanent status for instance (see also the examples in Wallace, at paras. 99‑100). 

Isn’t the law wonderful ?

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In Salina v Investors Group Financial Services Inc., 2026 BCSC 1168 (CanLII)

Justice Morishita had a situation where a dependant contractor had the following termination clause:

10. TERMINATION

This Agreement may be terminated at any time by either party, with or without cause and with or without notice or any compensation in lieu of notice and, without limitation, may be terminated by [Investors Group] upon the breach by the Consultant of any of the terms, conditions or provision of this Agreement. On any termination or pending termination of a Consultant, [Investors Group] shall provide its clients with the appropriate notice.

In other words, this seemed to allow the defendant Investors Group to terminate with zero notice .

As the Judge notes, dependant contractors are not employees so they are not covered by the Employment Standards Act.

In Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 98 the Court cited the following as the basis for the implied term of reasonable notice:

“The presumption at common law that a contract of employment for an indefinite term is terminable only on reasonable notice would have been rebutted by the clear language of the contract specifying shorter notice periods.”

The issue then is zero notice a ” shorter notice period”

The Judge said NO.

[100]    In my view, “no notice” or “zero notice” is incompatible with “some other period of notice” or a “shorter period of notice.” “Some other period of notice” or a “shorter period of notice” implies some other amount, but not nothing. Because the Employment Standards Act does not apply to Mr. Salina, the shorter notice period could have been any amount of time, even one day.

[101]    Because the Termination Provision does not clearly specify any other period of notice, it does not rebut the common-law presumption of entitlement to notice and is therefore unenforceable.

What a difference a day makes.

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In Dhaliwal v. Richter International Ltd., 2025 ONCA 522 (CanLII) Justices Wilson, Rhaman and Copeland dealt with the issue of arbitrator bias.

The parties chose the arbitrator together. Then one party found out that the opposing lawyer was also using the same arbitrator on another file. That party brought a motion before the arbitrator requesting that the arbitrator recuse. The arbitrator refused and ordered costs against the party who brought the motion.

The losing party brought an application in ONSC to overturn the arbitration award. They lost. They appealed. They lost again.  They sought leave to the SCC. This was dismissed .

This is what the ONCA said:

[8]        We reject the appellants’ contention that the terms of the arbitration required the arbitrator to disclose that he and the respondents’ counsel were involved in another arbitration. The arbitrator was required to disclose circumstances that could give rise to a reasonable apprehension of bias. Simply being involved in a separate arbitration with one party’s lawyer is not, on its own, such a circumstance. The parties had no agreement that they could only select an arbitrator that neither had worked with before. Nor did the terms of the arbitration agreement require the arbitrator to disclose any previous involvement with the parties’ lawyers. We observe that it is not uncommon for lawyers to select arbitrators for the very reason that they have worked with those arbitrators before. There is no merit to the appellants’ submission that any non-disclosure created a reasonable apprehension of bias.

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In Khatib v GoEasy Ltd ( 2026 ONSC 3513) Justice Mathen made a number of interesting rulings on the issue of the entitlement to compensation for RSU’s and Stock Options ( SO) that vested after the termination date .

The relevant clause in the agreements was as follows:

4.1 Unless otherwise determined by the Company at any time and except as otherwise provided in a Participant’s written employment agreement with the Company, a Subsidiary or a Designated Affiliated Entity, on a Participant’s Termination Date, any RSUs credited to the Participant’s RSU Account which are not Vested RSUs shall terminate and be forfeited. In the event of termination of the employment of a Participant by an Employer for cause, all RSUs credited to the Participant’s Account shall terminate and be forfeited, whether or not such RSUs are Vested RSUs.

…

4.3 Neither designation of an employee as a Participant nor the grant of any Units to any Participant entitles any Participant to the grant, or any additional grant, as the case may be, of any Unit under the Plan. Neither the Plan nor any action taken thereunder shall interfere with the right of the Employer of a Participant to terminate a Participant’s employment at any time. Neither any period of notice, if any, nor any payment in lieu thereof, upon termination of employment, wrongful or otherwise, shall be considered as extending the period of employment for the purposes of the Plan. No cash or other compensation shall at any time be paid in respect of any Units that are forfeited or terminated hereunder, as damages or otherwise.

4.4 Participation in the Plan shall be entirely voluntary and any decision not to participate shall not affect the Participant’s employment with the Employer

There were very substantial monies tied to both RSU’s and SO that vested after the Plaintiff’s date of termination.

The Judge determined that the reasonable notice period was 8 months.

The first issue was whether the Plaintiff was entitled to compensation for those RSU’s and SO that vested within the 8 month notice period.

The Judge found that because the term ” Termination Date ” was not defined in the agreement. As such she ruled as follows

:[115]      Accordingly, I am persuaded that the lack of a definition for “Termination Date” in the grant documents creates an ambiguity over whether a termination date includes a period of notice. That ambiguity redounds to Mr. Khatib’s benefit: Paquette, at paras. 41, 46.

The Plaintiff was therefore entitled to the value of all of the RSU’s and SO that vested in the notice period, valued as of their  respective vesting dates.

The Judge then dealt with the issue of those RSU’s and SO which  vested after the 8 month notice period.

Having noted that there was no enforceable language allowing for the forfeiture of unvested RSU’s and SO, the Judge rejected the employers’ argument that it was implicit in these agreements that it only applied to employees who were either employed  or deemed to be employed when the vesting occurred . Rather the Judge said that absent language limiting the employee’s entitlement, he should be entitled to the  pro rata value of the RSU and SO. 

The second reason that the Judge awarded this pro rata share was because: “at least some employees were permitted to retain the pro-rated value of unvested stock units when they left the company. ”

However it seems that the employees who did receive pro rata value had an express provision in their employment contracts, a provision which this Plaintiff did not have.

This is how the Judge explained how to do the prorata calculation:

Assume the  vesting period is 3 years from date of the grant.

Assume the grant date is January 1,  2024.

The vesting date is therefore January 1, 2027

Assume that his termination date is April 30, 2025.

Therefore the end  of the reasonable notice period is December 31, 2025

The prorata share would be 66% as he was deemed to have been employed for 2/3 of the vesting  period

My Comments:

This is the first time that I am  aware of where an employee recovered compensation that would have only been received after the notice period .

In the leading case of Prozak et al v Bell Telephone co of Canada ( 1984 CanLII 2065) the Ontario Court of Appeal said that the plaintiff’s entitlement to commissions ended at the end of the notice period even though commissions from their original sale continued for a period far beyond that date.

One would have thought that the same principle would apply in this case.

If the Plaintiff had quit half way through the vesting period, would he then be entitled to 50% of the value ?

Just because  other employees  had different contracts that allowed this pro rata entitlement, why should this Plaintiff, who did not negotiate such a prevision , benefit from another employee’s contracts?

The Judge makes reference to the fact that ” at least some employees ” received this benefit. Presumably that means that the other employees who were terminated did not receive such a benefit.  Why was this Plaintiff put in the first group and not the second  less entitled group?

I am advised by defence counsel that they will be filing a Notice of Appeal .

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In Taylor v British Columbia ( 2026 BCSC 1047 ) Justice Leblanc had a situation where a civil servant who was dismissed without cause was entitled to 24 months severance. This is what the Judge said on this issue

[182]     It is not disputed that that defendant withheld the plaintiff’s severance payment for 15 months.

[183]     Paragraph 4 of Employment Termination Standards, B.C. Reg 379/97 [“Termination Regulation”] provides that if an employer terminates employment without cause and excuses the employee from performing the employee’s duties under s. 3(1)(d), the employer, in its sole discretion, may provide the employee with severance. The severance must be in the form of periodic payments unless the employer, in its sole discretion, considers a lump payment to be more appropriate.

[184]     In this case, the defendant exercised its discretion to make a lump sum payment. The amount of severance is established pursuant the Regulation and that amount is not in dispute.

[185]     The defendant presented the plaintiff with release paperwork (the “Severance Release”) that it stated had to be signed and returned to receive the severance payment. In the ensuing months, the plaintiff sought to regain her employment which the defendant communicated was not available. The plaintiff in turn communicated that she would not sign the Severance Release. Notwithstanding these positions, it was not available to the defendant to withhold the plaintiff’s severance once it had exercised its absolute discretion to make a lump sum payment.

[186]     Once the employer has exercised its discretion to pay severance, the Regulation does not prescribe terms that can attach to the payment of severance, other than the amount of the payment.

[187]     Accordingly, I find the defendant breached the terms of the Termination Regulation when it asked the plaintiff to release the defendant from liability in exchange for payment of severance. This was a breach of the contractual duty owed to the plaintiff.

[188]     Due to this contractual breach, the plaintiff’s source of income was abruptly stopped, and the plaintiff was forced to look for alternative income sources. The plaintiff exercised her pension early, which she testified had a negative impact on its value. While the plaintiff has not quantified the negative impact, I do accept the plaintiff’s evidence that she would not have relied on her pension at that time had she received the severance payment when she was terminated.

To punish this behaviour, the Judge awarded punitive damages of $200,000 . There were two matters that led to this award, by here I am only setting out what the Judge said about the delayed payment issue.

[226]     I also find the defendant’s withholding of severance payments, without legal explanation, to be worthy of punishment that has not been compensated for in the aggravated damages award I have made. The defendant acted in a high-handed and arbitrary way.

[228]     Further, while the defendant exercised its discretion to pay the plaintiff a lump sum, it was not then open to withhold the payment in exchange for the plaintiff agreeing not to commence legal action against it. Abruptly terminating the plaintiff and holding her severance payment ransom for a release of liability was high-handed, malicious, and arbitrary. It was also contrary to the statutory provisions on which the defendant sought to rely to limit the amount of severance payable.

My Comments:

It seems that this case could also be applicable where an employer refuses to pay a terminated employee certain amounts which are not in dispute in order to extract a release.

For instance, where an employment contract calls for a fixed termination payment but there is a dispute about an outstanding bonus earned prior to the termination, can the employer get into trouble if they refuse to pay the contractual termination payment without also resolving the bonus issue?

What about a situation where there is no dispute that the terminated employee is entitled to $10,000 in outstanding vacation pay but the parties  cannot agree on what reasonable notice the employee is entitled to? Can the employer refuse to pay the vacation pay unless the entire dispute is resolved?

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In COPE  v IAM Local 1922 ( 2026 CanLII 42517 ) Arbitrator Christopher White found that the Grievor was dismissed without just cause but as reinsatement was not a viable option, he instead awarded compensation in lieu.

Traditionally there have two ways of approaching how to calculate these damages . This is how the Arbitraor described the two methods:

  With respect to the method to be used in calculating damages in lieu of reinstatement, arbitral caselaw identifies two methodologies that have been widely used.  The first is the fixed-term method which assumes that, but for the improper termination, the terminated employee would have continued in employment with the unionized employer until an anticipated retirement date (e.g. age 65).  The damages calculated in respect of that period are then reduced to reflect contingencies that might otherwise have caused the employment to end at an earlier date.  Contingencies considered by arbitrators using this method vary widely and very much depend on the specific circumstances of the case.  The second method is the common law approach that calls on the arbitrator to utilize the factors generally considered by the courts in wrongful dismissal cases in their determination of a reasonable notice period where no just cause or contractual stricture otherwise governs.  Many arbitrators using this method provide an enhanced notice period to the grievor as compensation for the lost value and protections offered by the collective agreement that are unavailable to a non-unionized employee.

The arbitrator then decides that the enhanced common law approach is the better method:

I have carefully considered all the decisions provided to me and have come to the conclusion that the common law approach is to be preferred.  In particular, I find the reasons of Arbitrator Jones in Board of Governors of Mount Royal University v. Mount Royal Faculty Association (supra) to be particularly compelling.  Ultimately, the requirement to predict contingencies, especially when a long potential period of service remains in a grievor’s employment with the terminating employer, creates too much uncertainty and speculation.  It may be noted in any event that the contingencies applied by many arbitrators using the fixed term approach result in damage awards that are not dissimilar to those that would have been produced by an enhanced common law approach.  

The arbitrator then takes a two step approach to determine the proper notice period ;

First he determined that the common law notice period considering the usual Bardal Factors was 3 months .

Then he multiplies that number by 1.5 to take into consideration that the loss of a unionized position involves loss of the enhanced job security that flows from being covered by a collective agreement.

He therefore awarded 4.5 months notice in lieu of reinstatement .

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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.

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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

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