In Grimaldi v. CF+D Custom Fireplace Design Inc., 2023 ONSC 6708 Justice Bordin was asked by the Plaintiff to award him vacation pay over the 5.5 months of reasonable notice that he was awarded.
This is what the Court ruled :
101] As in Cronk, to award the plaintiff damages for vacation pay, on top of an award of full salary for the period of notice to which he was entitled (which necessarily includes payment of his salary for any vacation he may have taken had he worked during that notice period) is to provide double indemnity, or put another way, to provide compensation for a loss that he has not suffered.
[102] I find Mr. Grimaldi is not entitled to vacation pay.
My Comments: This issue occasionally comes up in my mediation practice. The only exception to this rule would be if the employee received their vacation pay added to each pay check but for the majority of people who simply take their vacation and continue to be paid during their vacation, this case would apply .
However since under the ESA vacation pay is payable on total earnings, not just the base wage, what if during the notice period an employee would have received a bonus? As vacation pay is probably owing on that bonus, would it not be logical to award vacation pay on the bonus only?
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