Barry Fisher's Employment Law Blog

In Schinnerl v Kwantien Polytechnic University ( 2016 BCSC 2026) Justice Steeves found that the plaintiff had failed to mitigate her damages when she turned down a full time job but accepted a part time job so that she could continue her PhD studies.

The Court commented as follows:

[36] In my view, the plaintiff was certainly entitled to negotiate a change from full‑time to part-time work so she could get closer to completion of her PhD studies. However, that is a separate matter from her duty to mitigate the damages she is entitled to from her dismissal by the defendant. By turning down full-time work at Douglas College but then seeking damages for full-time work she is essentially claiming that her former employer should pay for part of her continuing education. It is true that the education commenced with the defendant but its obligation to contribute ended under its educational leave policy as well as with the plaintiff’s dismissal.

[37] I can agree with the plaintiff that a dismissed employee is entitled to consider her long-term interests but I do not agree this means her former employer is required to pay for the interests of the plaintiff at issue here. Nor do I agree that the plaintiff is entitled to be placed in the best possible position in relation to her long-term career objective following her dismissal. The plaintiff relies on previous judgments but they can be distinguished on the facts because there was no alternate position available to the dismissed employee (for example, Haff v. Valeant Pharmaceuticals International Inc., 2013 BCSC 1720 (CanLII), at para. 70). Similarly, the efforts of a disabled former employee to refocus his vocational aspirations in the absence of alternate work is a different case than the subject one (Birch v. London Drugs Ltd., 2003 BCSC 1253 (CanLII), at para. 27).

[38] In my view the subject case is analogous to a previous judgment where it was held that a dismissed employee cannot elect to take further training with the cost of the training as a charge against the former employer (Cimpan v. Kolumbia Inn Daycare Society, 2006 BCSC 1828 (CanLII), at para. 107).

[39] In summary, the defendant’s obligation to pay notice to the plaintiff ended on June 13, 2016, when the plaintiff commenced employment with Douglas College. That was the date the plaintiff had the opportunity to work full-time and mitigate all of her damages after that date. She was entitled to choose not to take full-time employment but the cost of that choice does not lie with the defendant.

In Morison v Ergo-Industrial Seating Systems Inc. ( 2016 ONSC 6725) Justice Rogers held that reasonable notice for a 58 year old Regional Sales Manager with 8 years service making $211,000 annually was 12 months .

But the Judge did not stop there. The judge was very concerned about the defendants’ conduct and considered that in analyzing both the issue of aggravated damages and punitive damages.

This is what the Court said  about aggravated damages :

40. It is clear that an employer can allege just cause as a ground for dismissal and that abandoning cause at any stage, in the course of the action, does not necessarily mean that such conduct should attract aggravated damages. Provided the employer had a reasonable basis on which it believed it could dismiss an employee for cause, a finding of bad faith will not automatically follow: see Mulvihill v. Ottawa (City), 2008 ONCA 201, 90 O.R. (3d) 285, at paras. 49, 55 .
41 However, in this case, the evidence is rather clear that the plaintiff was simply not a good fit with his new immediate superior (Exhibit 1, tab 19 being a convincing example). It is equally clear that this superior knew someone she respected who expressed interest in Mr. Morison’s position. The defendant was interested in trying someone new who had what the defendant perceived was a more positive disposition towards the healthcare sector. The defendant was clearly entitled to these beliefs and to hire someone else. However, none of this constituted reasonable belief in just cause.
42. Considering all the evidence on this issue, I conclude that alleging cause was an integral part of the defendant’s negotiation strategy. The defendant was counselled in September 2012 that it would not be able to establish cause. The defendant alluded to a possibility of alleging cause in its dismissal letter. The defendant then alleged cause in its defence and adopted a rather aggressive position while providing no convincing evidence at trial that could support its alleged reasonable belief in cause or that it was reasonably justified in initially adopting a position of just cause.
43. This is exactly the kind of conduct mentioned in Honda v. Keays as an example of conduct in dismissal that could result in aggravated damages. I find that the defendant did not act fairly or in good faith in the manner of dismissal of Mr. Morison as the defendant was not candid, reasonably honest, nor forthright with Mr. Morison. The defendant, by its allegations made with no reasonable basis in support thereof, attacked the reputation of Mr. Morison by making misrepresentations regarding the reasons for his dismissal for financial gain (i.e. seeking a better outcome in its negotiations with Mr. Morison). This is a classic example of bad faith.

However the Judge noted that to award monetary damages there had to be evidence of actual damages sustained. The Court commented as follows:

45. On this point, the evidence in this case is quite different from that in Middleton v. Highlands East (Municipality), 2013 ONSC 763, 8 M.P.L.R. (5th) 114, where the Court found, at para. 142, sufficient evidence of mental distress. Here, the evidence of mental distress caused by the manner of dismissal cannot be dissociated from the usual anguish and stress resulting from having one’s employment terminated. I point out that I am not concerned with the lack of a medical report (on which time was spent during closing arguments), but rather with the lack of convincing evidence of mental distress on which I could properly assess damages resulting from the manner of dismissal. By way of example, some of the plaintiff’s evidence on this related to how he was in a fog when he found out by a friend that he would be dismissed and how this was a horrible day, with other parts of his evidence relating to his financial distress. Despite mentioning that the allegations of cause got his back up and caused him some upset, his evidence in that regard was extremely superficial and lacked particulars. The evidence is not at all convincing and is simply not sufficient to warrant any damages in this context, since normal distress and hurt feelings resulting from a dismissal areensable. For these reasons, the facts relevant to damages in this case are quite different from those in cases such as Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, and Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, and do not give rise to compensable damages.
46. As indicated in Canada (A.G.) v. Robitaille, 2011 FC 1218, at para. 38, the employee’s testimony may be sufficient to establish such damages and the absence of medical evidence does not deny the damages suffered by the employee as long as there is evidence of such damages and evidence of a causal connection between the moral injury and the wrongful conduct.

However, there is no need to prove actual damages in order to award punitive damages. In the following strong language the Judge awarded punitive damages in the amount of $50,000:

52. In this case, the defendant committed an actionable wrong independent of the underlying claim for damages for breach of contract: the breach of its duty of good faith, as found above.
53. I find the facts of this case particularly troubling. Not only did the defendant assert cause when there was no reasonable basis for such an assertion, the defendant delayed in providing the plaintiff his record of employment, and significantly delayed in paying amounts owing under the Employment Standards Act, 2000, until June 15, 2015. This had a significant financial impact on the plaintiff and the employer had knowledge of the plaintiff’s financial circumstances. Moreover, the allegations of cause, made with no reasonable basis, were made for tactical and financial gain considerations.
54. I had the advantage of listening to the evidence and observing the witnesses and I find such conduct to be reprehensible. It exceeds what might be considered as ill-advised. The allegations of cause, made with no reasonable basis, and the significantly delayed payment of statutory amounts were intentional and financially impacted the plaintiff. These actions of the defendant were designed to financially benefit the defendant and the defendant had knowledge of the plaintiff’s precarious financial position. Such a conduct is “malicious, oppressive and high-handed” and “a marked departure from ordinary standards of decent behaviour”. A similar finding was made in Kelly v. Norsemont Mining Inc., 2013 BCSC 147, at para. 115.
55. Since I have awarded no amount for aggravated damages, the pitfalls of double-compensation or double-punishment mentioned in Honda v. Keays is avoided if I award punitive damages.
56 .Considering the facts of this case, I find that an award of punitive damages is rationally required to punish the defendant and to meet the objectives of retribution, deterrence, and denunciation. Employers cannot be allowed to behave in such a fashion without a clear message being sent by this Court that this is not acceptable.

The facts that justified an award of aggravated damages were virtually the same as those relied upon for punitive damages, which reinforces my belief that they are one and the same.

In order to get over the hurdle that the Plaintiff was not committed to a mental health facility as a result of the defendants’ actions,  the Court simply recast the defendants’ behaviour in the language of punitive damages and came to the same result.

To somewhat  paraphrase Michelle Obama, ” When the Employer goes low, the Court will go high.”

In Reeve v 2265480 Ontario  Ltd cob Hidden Valley Resort, ( 2016 ONSC 5273) Justice Glass of the Divisional Court overturned a Small Claims Court judge who actually said in his judgement that  in determining the notice period he was ” arbitrarily ” choosing one month.

Justice Glass determined that Plaintiff, who was employed as a Manager for only 3 months, was entitled to receive 4 months notice, in part because he had a managerial job, he had moved his family from Toronto to Huntsville, was not on probation, was not given any guidance as to his alleged performance problems and it took 9 months for him  to find a new job.

It is interesting to think what would have happened if the Small Claims Court judge  had not used the word ” arbitrary” and instead  had said ” Considering the relevant Bardal factors, I find that reasonable notice is one month”.

In Caskanette v Bong-Keun Choi Dentistry ( 2016 ONSC 6448) Justice Mitchell was hearing an appeal from the Small Claims Court where the Plaintiff was found to have dismissed with just cause. In the alternative, the Small Claims Court judge said that if he had found no just cause, he would have awarded a notice period of 4 months , which worked out to be worth $7,575.

The Superior Court found that just cause was not proven and awarded the Plaintiff $7,575.

In their costs submission, Plaintiffs’ counsel ( who was 31 years at the bar) claims he spent 87.6 hours on the appeal, and another 20.5 hours by law clerks and students.

The Superior Court judge commented on the excessive amount of time spent by Plaintiff’s counsel and ultimately awarded costs of $10,000, inclusive of HST and disbursements. This is only $1,000 more than the Plaintiffs’  lawyer claim for HST and disbursements.

If in fact Plaintiffs’ counsel actually charged his client $56, 320 for the appeal and he recovered $17,375, then this “win” only cost her a mere $38,945. The plaintiff, by the  way, made $22,725 per annum in the job that she lost.

In Pisko v. Trican Well Service Ltd. ,( 2016 ABQB 500) Master Farrington found that a provision of the employment agreement offended the Alberta Employment Standards Act in that it excluded a certain rotational shift allowance from the calculation of wages when determining how much money was payable for each week of termination pay.

The contract provisions were as follows:
Clause 9: Compensation-your base salary will be $110,652.00 per year (“Base Salary”). In addition, you will receive a Rotational Assignment Allowance (“RAA”) of 25% of your base salary in accordance with the Rotational Policy, bringing your total compensation to $138,315.00 per year, less applicable statutory deductions. The RAA percentage is subject to change in Trican’s sole discretion.
Clause 14: Termination-In the event that this Agreement or your employment is terminated by Trican after completion of your probationary period, for any reason other than cause, Trican will provide you with either: (i) sixty (60) calendar days notice of such termination, i.e. the equivalent of one full rotation; or (ii) a severance payment equivalent to sixty (60) calendar days of your Base Salary, excluding the RAA and less applicable statutory deductions; or (iii) a combination of notice and Base Salary, excluding the RAA and less applicable statutory deductions, equivalent to sixty (60) calendar days total.
Clause 19: Severability-If any provision of this Agreement is determined to be void or unenforceable in whole or in part, it will not be deemed to affect or impair the validity of any other covenant or provision of this agreement.

Rather than declaring the whole provision invalid as it breached the ESA, the Master chose to ” rewrite the contract” so that it complied with the ESA. His comments were as follows:

Severability
25. The question then becomes whether all of Clause 14 of the employment contract (including the 60 day notice provision) is void, or whether some type of alternative result should flow. The plaintiff argues that all of Clause 14 is void and that Machtinger applies preserving the common law position on notice periods and reasonable notice.
26. The employment agreement in this case has a severability clause. The agreements in Machtinger did not appear to have had such a clause.
27. When one reviews the termination clause in this case there are three alternatives for the employer. The first alternative permits termination on 60 days notice. Nothing in that concept violates the Employment Standards Code in any way. The second alternative allows for a severance payment equivalent to 60 calendar days, but it excludes the RAA in the calculation of the payment. I have found that excluding the RAA from the calculation violates the Employment Standards Code. The third alternative, and the one chosen here, also excludes the RAA in the calculation of the payment in lieu of notice portion of the severance payment. Similarly, that provision, as drafted, violates the Employment Standards Code.

28. Machtinger was a case about an aggressive employer who attempted to take advantage of employees and who then asked for a fallback position that its contract be interpreted as if it had been drafted with the employment standards minimum notice periods as its severance obligation. The Supreme Court of Canada found that to be objectionable, as finding for the employer would have been an incentive for employers to attempt to take advantage of employees by attempting to shorten notice periods with no consequences to them if their attempts were not successful if they were allowed to have a fallback position based upon the employment standards minimum notice periods in any event. In Machtinger , there was a common law alternative on notice periods if the agreement was declared to be void. The readily available common law alternative to a void contractual notice period was the common law doctrine of reasonable notice.
29. In this case, the issue is not with respect to the notice period itself, but rather in the calculation of wages. The working notice provision allowed for 60 days notice. There was no suggestion in the evidence or argument that anyone was attempting to intentionally avoid the provisions of the Employment Standards Code in the drafting of the payment in lieu of notice provisions.

30. The preamble of the Employment Standards Code provides in part:
RECOGNIZING that legislation is an appropriate means of establishing minimum standards for terms and conditions of employment;
(Emphasis added)
31. There is support for considering the preamble of the Employment Standards Code in section 12(1) of the Interpretation Act which provides:
(1) The preamble of an enactment is a part of the enactment intended to assist in explaining the enactment.
32. The Employment Standards Code is meant to ensure that employees receive guaranteed minimum protections as set out in the Code. That is an important objective which must never be compromised. The Employment Standards Code is not, however, meant to necessarily serve as a conduit to remedies in excess of the minimum standards for every breach by an employer, regardless of the nature of the breach. In some instances, such as in Machtinger , the result of a breach and a declaration that a provision in an employment contract is void results in reliance upon common law remedies where they exist and are available to deal with the issue that rendered the contract void.
33. In this case the offending provision is with respect to the calculation of wages. The remedy for that type of breach is to calculate the wages properly. The remedy is not to rewrite the agreement of the parties regarding the applicable notice period when that notice period complied with the Employment Standards Code. I find that the issue of the notice period and the calculation of wages are two separate issues. While there may be some subtle differences between the calculation of income or wages for severance purposes under the Code and under the common law, there is no suggestion that any of that type of income is a factor in this case.
34 Trican argued that the severability clause was available to provide formal severance of the offending portions of Clause 14 of the letter agreement. I do not believe that it is necessary to formally do so based upon the facts of this case.
35 The Employment Standards Code provides for a minimum set of standards that must be met by an employer. The employment agreement permitted termination with notice. The notice that was given in this case was 16 days of working notice, plus a severance payment of 60 days including the RAA. The notice given and the payment made clearly exceeded the guaranteed minimums under the Employment Standards Code. In the circumstances, I find that it is sufficient for the employer to simply have paid more than the correct amounts without the exclusion of the RAA as has been done by the employer.
Conclusion
36 In accordance with Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.) , I find that the record before me is sufficiently complete to allow me to make a fair and just disposition on the merits, and that there are no material facts in dispute. Accordingly, I grant Trican’s application for summary dismissal. It has more than met its obligations under the employment agreement, as affected by the Employment Standards Code, and it has exceeded the minimum standards required under the Employment Standards Code when wages are properly calculated. There is an enforceable notice period provision in the employment contract. Trican has paid 60 days of payment in lieu of notice (including the RAA) when it was obliged to pay 44 days (including the RAA) having given 16 days of working notice. There are no further issues that remain.

At first blush this case looks like it is a license for employers to avoid illegal contracts by simply having the Court correct the contract by insuring that the Employer pays no less than the ESA.

However in this  case, the contract provided that the Employer had to pay 60 days of base pay, whereby the ESA provided that they had to pay 44 days of base pay plus the shift allowance. The base wage was $110,652 thus 60 days of that wage would equal $25,535 whereas 44 days of the full wage of $138,315 would be equal to $23,407.

In other words, at the end of the day, the contract termination amount exceeded the ESA minimum amount, so of course, the contract did not violate the ESA.

Therefore the Master’s comments would seem to be unnecessary verbiage ( obiter dicta ) and as such probably do not change the law on the enforceability of illegal ESA contracts.

Moreover some of the Masters comments are troubling from a policy perspective :

1) “There was no suggestion in the evidence or argument that anyone was attempting to intentionally avoid the provisions of the Employment Standards Code in the drafting of the payment in lieu of notice provisions.”

Why would this matter? How could any employee have evidence of the motivation behind a contract clause drafted by the Employer? Surely we look at the effect of the contract and not the motivation of the drafter.

2) Although the contract provided that the allowance ( RAA) was not to be included in calculating termination pay, in fact it seems that when actually paying out the termination pay, the Employer did include the RAA. The Court seemed to take that into effect when it decided that the termination provision was valid. However when examining the legality of a contract, you are only to look at its language, not how  one party acted on the contract. To do otherwise would mean that an Employer could avoid a finding of illegality by simply paying the ESA amount even though the contract called for a lesser payment. This is exactly the policy evil that the Supreme Court of Canada was trying to stop in Machtinger.

In Ozorio v Canadian Hearing Society ( 2016 ONSC 5440) Justice O’Marra awarded  24 months months notice to a 60 year old Regional Director with 30 years service making $102,000 per annum.

The judgement also lists  14 cases where a Court awarded 24 months notice or better.

What I found even more interesting however was the judges detailed comments about the prior offers that the Employer had made. Here are those comments:

7. On November 18, 2015, the defendant’s new President and CEO, Ms. Julia Dumanian, met with the plaintiff and “without any warning” according to the plaintiff presented her with a “voluntary separation offer”. The terms of the offer would have provided the plaintiff with $93,000, less than her annual salary, in exchange for a release. Ms. Dumanian left the offer with the plaintiff for her review and any independent advice. On or about November 25, 2015, the plaintiff declined the offer as in her view it was unfair and inadequate given her long tenure and senior role in the organization,
8. On November 30, 2015, the defendant sent the plaintiff a termination letter then offering 12 months’ pay (approximately $97,000) and limited contribution of benefits for 2 months. No offer was made to provide the plaintiff with a letter of reference or any out-placement counselling services to assist her with alternative employment.
9. In lieu of acceptance, the defendant chose to pay the plaintiff her regular salary from November 30, 2015 to July 27, 2016, the minimal 34 week period for statutory notice and severance pay compliance under the Employment Standards Act, 2000 S.O. 2000 C. 41, in addition to benefit coverage for 8 weeks.

12. The defendant’s position has changed considerably since its original offers. Initially, the offer was basically 12 months’ salary in lieu of notice however, in its written and oral submissions the defendant urged the court to find that the reasonable notice period in the circumstances of this case is one of 18 to 20 months, relying on cases set out in Appendix B – a tacit acknowledgment of the inadequacy of the original offers.

I assume that when a judge refers to a fact in their judgement it is because they find that fact relevant in determining the outcome.

In effect the judge took into account the fact that the Employer had made settlement offers which he found to be grossly inadequate in deciding what the proper notice period would be.

Funny, I always thought that offers were always without prejudice  and thus were not admissible.

Who cares what offers anyone made, other than for the purpose of determining  costs after the decision has been rendered ?

What if the Employer had offered 23 months from the start and the Plaintiff didn’t accept it ? Would the judge still have found that reasonable notice was 24 months? I doubt it .

This consideration of offers as a factor in determining what is reasonable notice is a throwback to the previously discredited concept of ” ballpark justice ” that flourished for a short time in the 1980’s and 90’s. In those cases the Court would determine whether the Employers’ offer was “in the ballpark ” of reasonable notice and if it was, the Court would often award the Employers’ offer. Thus if the ballpark was between 12 and 15 months, and the Employer offered or paid 12 months, then the Court would find that 12 months was reasonable.

Thus  the Court , instead of determining what they thought was reasonable notice , was simply examining if the Employers actions or its offers were reasonable. The Court was in effect abdicating its role to determine the proper notice period  to the Employer rather than doing that job themselves.

The net effect of this was of course that notice periods over time would go down because  to get into the safe zone of ballpark notice, all you had to do was pay or offer the low end of the notice period.

However Courts of Appeal across Canada finally rejected this doctrine and re-emphasized that the Court decides what is reasonable notice, not the parties. ( see Walsh v. UPM-Kymmene Miramichi Inc. ( 2003 NBCA 32) .

In my opinion the only information that the judge should have considered is what the Employer actually did, not what they offered to do. In this case the only relevant information was that the Employer paid the Plaintiff the bare statutory minimums and not a penny more.

If Employers want to get credit for being reasonable, they can simply pay the Plaintiff what they feel is reasonable notice, without a release,  preferably by way of salary continuance so as to not lose the advantage of mitigation.

In this case the Employer at trial  apparently thought that the plaintiff should get at least 18 months notice. Can you imagine the effect on the Court if the Employer had told the Plaintiff in a with prejudice letter that the Employer intended to keep the Plaintiff on full salary and benefits until the earlier of 18 months or when the Plaintiff mitigated her damages by finding another job ?

I strongly suspect the Court would look more kindly upon such an Employer and either consciously or subconsciously moderate the notice period in the Employers’ favour.

In my experience as an employment law mediator I rarely see employers take the     approach set out above. Most employers adopt the same position as the defendant in this case of paying out only the minimum statutory payments and litigating over the balance. Those are the employers who  often get hit with headline grabbing notice periods.

 

 

In Evans v Paradigm Capital ( 2016 ONSC 4286) Justice Gans determined that a 44 year old Senior Institutional Salesperson with 4.5 years service was entitled to 11 months notice.

In deciding what level of compensation that the Plaintiff was entitled to for the notice period the Plaintiff argued that it should be based on her three year backward average , which came to $621,000 per annum.

The Defendant argued that it should be based on her rate of pay as of the date of termination, which came to $149,000.

This is what Gans J. said about this issue:

55 In the first place, as the Ontario Court of Appeal observed, there is no hard and fast rule that mandates a trial judge to adopt an averaging absent compelling reasons to the contrary.23 The British Columbia Court of Appeal adopted the following statement from Harris in Wrongful Dismissal, looseleaf (Toronto: Carswell, 1989) at 4-52.9:
Whatever assessment of damages is made, the standard of salary is not to be an average of prior years, but rather should be based on the income of the employee at the date of termination. In Lawson v. Dominion Securities Corp., [1977] 2 A.C.W.S. 259, the Ontario Court of Appeal stated:
The governing principle is that damages for wrongful dismissal are “prima facie the amount that the plaintiff would have earned had the employment continued according to the contract subject to a deduction in respect of any amount accruing from any other employment which the plaintiff, in minimizing his damages, either had obtained or should reasonably have obtained”. McGregor on Damages 13th edition, para. 884 at p. 594. The judgment appealed from erred in measuring damages by the remuneration of the dismissed employee in the year or years prior to his dismissal: Findlay v. Howard (1919), 58 S.C.R. 516.
(See also Cappelli v. Promospec Specialty Advertising Ltd. (1997), 31 C.C.E.L. (2d) 202, 97 C.L.L.C. 210-026, 39 O.T.C. 328, 1997 CarswellOnt 3704 (Ont. Gen. Div.).)
On the other hand, in some cases the plaintiff’s earnings in the last year of employment may not be representative of his or her usual earnings. The court undoubtedly has jurisdiction to look at preceding years in order to determine a “representative income” for the plaintiff.24
(Emphasis added)
56 Assuming without deciding at this moment in time, whether such a method would permit me to include an amount in respect of the Shareholders’ Bonus, which is very much in issue, I am not persuaded that the use of an averaging of Total Remuneration is appropriate in the circumstances of this case. In my view, the income averaging method is more appropriate in circumstances where the size of the income pool is uncertain; when the dismissed employee is, for example, a commissioned salesperson; or when there is marked volatility in the employee’s remuneration as a result of his or her own efforts over the preceding years leading to termination.
57 In the instant case, the math is fairly straightforward — it is simply a matter of multiplying the ‘last percentage allotment’ established by the Compensation Committee against the Performance Bonus and Shareholders’ Bonus ‘pots’, both of which latter numbers are derived from the charts and appendices that were filed on consent as part of the JBDs. The computation is not dependent on what success — or otherwise — Evans might have enjoyed or suffered in the period of reasonable notice. The trickier issue is determining the appropriate percentage allotment for inclusion in the calculation.
58 While the Performance Bonus could be said to be subject to an upward adjustment had the Compensation Committee determined in any quarter that such were warranted, having regard to the fact that Evans’ client base was dramatically altered for 2009, I am at a loss to see how she might have improved upon her relative ratings during the notice period after this alteration. She had been allotted a 0.5% participation rate for seven straight quarters prior to the moment of termination as a result of point allocation generated from a reasonably static client roster. This track record, as it were, undercuts the notion that she was perhaps on an up-tick. It would not, therefore, be unreasonable to fix her Performance Bonus percentage at the number with which she ended in 2008, being 0.5%. As a corollary, I would not reduce the percentage because her relative performance might very well have declined in light of the loss of clients. In my view, Paradigm can’t have it both ways.
59 Finally, I find the decision of my colleague Wilton-Siegel J. in Chann, supra, in circumstances not too dissimilar to the instant case, to be most instructive:
First, the plaintiff suggested that a three year average of bonus payments should be used as the base rather than the level of the bonus payment in fiscal 2001. This approach may be appropriate in circumstances where bonuses fluctuate only moderately. However, it is not appropriate for the investment banking business in which significant fluctuations occur from year to year. In this industry, bonuses are adjusted yearly for all employees to address results within the most recent fiscal year and performance in prior years is discounted quickly. I see no basis for departing from this approach in the case of the plaintiff. The plaintiff also suggested his 2001 bonus was already reduced to a certain extent as a result of the defendant’s determination in that year that his origination activities were unsatisfactory. I do not see a reason, however, to use a three year average to reduce the effect of that determination which was made while the plaintiff was employed and was, therefore, not included in the plaintiff’s claim.25
60 In the result, I would hold that the plaintiff should recover the sum of $68,750 for the fixed portion of the salary for the 11-month period of notice, and $86,771.21 for her share of the Performance Bonus for the same period.26

This is often a fundamental issue in cases where the compensation is varied and complicated. This case reminds us that using a backward average is only appropriate where it is unfeasible to determine what would have happened if the Plaintiff had been given the chance to work out the notice period. Creative counsel can often put together a compelling case showing what would have actually occurred over the notice period. This can sometimes benefit the plaintiff or , as in this case, benefit the employer.

This is especially important where an employee’s compensation comes from a definable source, like a list of ongoing long term clients for whom responsibility has been transferred to another employee after dismissal. By simply tracking what sales were actually made to those same clients over the notice period, you can have a pretty good picture of what would have happened if the Plaintiff had been allowed to work out her notice period.

In Cheong v Grand Pacific  Travel &Trade, ( 2016 BCSC 1321) Justice Warren held that a Employee Handbook containing a ESA only termination provision was unenforceable for the following reasons:

1) The handbook came into existance after the Plaintiff was hired and no consideration was provided for her giving up her common law right to reasonable notice upon termination.

2) The handbook did not state that it intended to be a contractual agreement.

3) As the handbook provided that the Employer could unilaterally ” repeal, amend , modify add to or delete from the handbook at any time” the Court found that this is inconsistent with a contract as ” It almost goes without saying that a contract cannot be unilaterally varied “.

4) Many of the provisions refer to theft that the Company” may” provide this or that but is not required to do so. The Court commented that ” Such discretionary language is not reflective of a contract document but, rather, a document intended for informational purposes only”.

5) There was no manifest acceptance by the employee, i.e. her signature acknowledging that she was bound by the terms of the handbook. Nor did her silence constitute acceptance.

I find  the third reason the most interesting as almost every employee handbook I have ever read contains such a boilerplate clause. Moreover some handbooks, especially US based ones, contain an express clause stating that” nothing in this handbook is intended to create a contractual relationship”. This is often mixed in with a clause reinterating the American “at will” concept.

It is now open to counsel to argue that these seemingly boilerplate clauses have the effect of making the booklet unenforceable at least in regards to the enforceability of the termination clause.

There is simply no substitute for  clearly setting out in the employment agreement at the time of hiring the termination provisions that the parties agree on. Why employers continue to try to limit their termination obligations in anything other than the proper way always amazes me.

 

In Lin v Ontario Teachers’ Pension Plan Board ( 2016 ONCA 619)  the Court was faced with the following language in two bonus plans :

87] Again, the relevant language in the 2009 AIP is as follows:

In the case where a Participant resigns or the Participant’s employment is terminated by [Teachers’] prior to the payout of a bonus (normally the first pay period in April), no bonus shall be earned or payable to the Participant.

[88] The language in the 2008 LTIP is similar. It provides that:

In the case the Participant resigns or the Participant’s employment is terminated by [Teachers’], the Participant’s Dollar Grants not yet vested at the time of termination shall be forfeited forthwith without any right to compensation.

The Court found that this language was not sufficient  to take away the Plaintiffs’ common law right to his full compensation over the notice period. The Court said it this way :

[89] I reject the appellant’s assertion that these terms restrict Lin’s entitlement to compensation for lost bonuses in the event of wrongful dismissal. The wording does not unambiguously alter or remove the respondent’s common law right to damages, which include compensation for the bonuses he would have received while employed and during the period of reasonable notice. A provision that no bonus is payable where employment is terminated by the employer prior to the payout of the bonus is, in effect, the same as a requirement of “active employment” at the date of bonus payout. Without more, such wording is insufficient to deprive a terminated employee of the bonus he or she would have earned during the period of reasonable notice, as a component of damages for wrongful dismissal: Bernier v. Nygard International Partnership, 2013 ONCA 780, 14 C.C.E.L. (4th) 155, affirming 2013 ONSC 4578, 9 C.C.E.L. (4th) 41; Paquette, at para. 31.

[90] And, as Goudge J.A. explained in Veer v. Dover Corporation (Canada) Limited (1999), 45 C.C.E.L. (2d) 183 (Ont. C.A.), at para. 14:

[T]he termination contemplated must, I think, mean termination according to law. Absent express language providing for it, I cannot conclude that the parties intended that an unlawful termination would trigger the end of the employee’s option rights. The agreement should not be presumed to have provided for unlawful triggering events. Rather, the parties must be taken to have intended that the triggering actions would comply with the law in the absence of clear language to the contrary.

Again what does an employer need to do so as to deprive a terminated employee of his bonus over the notice period ?

This is the language that the Teachers tried to rely upon but failed because having asked for the employees’ consent these changes they backed down when the senior managers refused to agree to these changes.

In the event that a Participant resigns his or her employment with [Teachers’] or the Participant’s employment with [Teachers’] is terminated for any reason (whether with or without Cause), the Participant shall on the Termination Date forfeit any and all rights to be paid a bonus under the Plan (or any amount in lieu thereof) or to accrue any further bonus under the Plan. For further certainty, in the event a Participant’s employment terminates after completion of a calendar year in respect of which a bonus had been earned by the Participant under the Plan but prior to payment of that bonus, no bonus (or any amount in lieu thereof) shall be paid to the Participant.

“Termination Date” was defined as:

The date on which a Participant ceases to be employed by or provide services to [Teachers’] and, for greater certainty, does not include any period following the date on which a Participant is notified that his or her employment or services are terminated (whether such termination is lawful or unlawful) during which the Participant is eligible to receive any statutory, contractual or common law notice or compensation in lieu thereof or severance payments unless the Participant is actually required by [Teachers’] to provide services during such notice period.

Would that clause have ben enforceable? Could the Plaintiff apply for relief from forfeiture ?

The real issue is why do employers work so hard at first devising bonus plans that inspire employees to succeed and then work even harder to deprive those same employees of bonuses which in many cases they have already earned?

I strongly suspect that if employers devised plans that were fairer to terminated employees ( for instance providing for pro rata bonuses) , the Courts would be much more willing to uphold the contractual provisions, even if they did not provide for the  full common law entitlements that the employee would normally be entitled to.

I understand why you would not want to pay a bonus to an employee who has quit or was fired for just cause, but why the same treatment for an employee that you decide no longer fits your plans? Why should that employee be deprived of the bonus that he would have earned if he had been terminated legally, i.e. by providing reasonable working notice.

I thought that there was a general legal principle that a person should not benefit from their own illegal or wrongful conduct.

Why not apply that overriding tenet of justice rather that adhering to the out dated concept that an employment contract is simply a commercial contract between sophisticated parties of equal bargaining strength?

 

In Pacquette v TeraGo Networks ( 2016 ONCA 618 ) the Ontario Court of Appeal reviewed a decision in which Perell J. had denied the Plaintiff his bonus over the 17 month notice period because there was a provision in the bonus plan which required the employee to be ” actively employed” at the time of payout in order to receive his bonus.

The Court held that there was a two step process in calculating damages in a wrongful dismissal action:

First, because it was found that the bonus was an intergral part of the Plaintiff’s compensation plan, his damages are to be calculated on the basis of what they would have been had he been permitted to work out his notice period.

Secondly, the Court is to then look at the language of the relevant plan to see if there is anything which would disentitle the Plaintiff to the bonus over the notice period

To quote the judgement:

30] The first step is to consider the appellant’s common law rights. In circumstances where, as here, there was a finding that the bonus was an integral part of the terminated employee’s compensation, Paquette would have been eligible to receive a bonus in February of 2015 and 2016, had he continued to be employed during the 17 month notice period.

[31] The second step is to determine whether there is something in the bonus plan that would specifically remove the appellant’s common law entitlement. The question is not whether the contract or plan is ambiguous, but whether the wording of the plan unambiguously alters or removes the appellant’s common law rights: Taggart, at paras. 12, 19-22.

The Court went on to find that the term “active employment” did not have the effect of limiting the bonus entitlement over the notice period.

A term that requires active employment when the bonus is paid, without more, is not sufficient to deprive an employee terminated without reasonable notice of a claim for compensation for the bonus he or she would have received during the notice period, as part of his or her wrongful dismissal damages.

How then can an employer effectively deprive an employee of their bonus over the notice period? What language will be sufficient?

The Court had this to say about Kieran v. Ingram Micro Inc. (2004), 33 C.C.E.L. (3d) 157 (Ont. C.A.),

[38] Kieran is a stock option case. The issue was whether Mr. Kieran’s time for exercising stock options upon the termination of his employment was extended by the common law notice period where he had been dismissed without cause. The stock option plans provided that he had 60 days from the termination of his employment for any reason other than death, disability or retirement to exercise any rights then vested. “Termination of employment” was defined as the date the employee “ceases to perform services for” the employer “without regard to whether the employee continues thereafter to receive any compensatory payments therefrom or is paid salary thereby in lieu of notice of termination.”

[39] Lang J.A. explained, at para. 56, that under Ontario law, “Mr. Kieran would be entitled to damages for the loss of the plans, as they formed part of his compensation, absent contractual terms to the contrary. In the presence of contractual terms, those terms govern”. She then concluded that the plans were unambiguous as they “specifically provided that Mr. Kieran’s employment terminated on the date he ceased to perform services, without regard to whether he continued to receive compensatory payments or salary in lieu of notice.” Accordingly, Mr. Kieran’s right to exercise the stock options was not extended by the period of reasonable notice. He was not entitled to damages for the stock options.

Therefore this case, although interesting on its facts, simply stands for the proposition that the words ” actively employed ” are ineffective in denying a plaintiff a payment that would have occurred over the notice period, however smart employers will probably be changing their plans immediately to include Kierans’ type language rather than the active employment clause.