Professional Documents
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BETWEEN
Andre Singer
Plaintiff (Appellant/
Respondent by way of cross-appeal)
and
Defendant (Respondent/
Appellant by way of cross-appeal)
On appeal from the judgment of Justice James F. Diamond of the Superior Court
of Justice, dated October 6, 2017, with reasons reported at 2017 ONSC 5906.
Feldman J.A.:
General Manager of one of two of its divisions, the East Division, without just cause
in December 2016. The appellant was 51 years old at the time, and had been
Page: 2
[2] The appellant brought a motion for summary judgment to determine the
issues of reasonable notice, loss of bonus for the 2016 year that he had worked,
loss of bonus during the notice period, and loss of benefits during the notice period.
[3] The motion judge awarded the appellant 17 months' salary in lieu of
reasonable notice, as well as an amount for his bonus for 2016. The motion judge
denied the appellant's claim for his bonus during the 17 month notice period in
2017 and part of 2018, as well as any amount for the loss of his benefits package
[4] The appellant appeals the dismissal of his claims for his bonus and benefits
from the award of 17 months' reasonable notice, saying it should have been
between 12 and 15 months, and from the award of a bonus for 2016. It will be most
[5] The respondent submits that the motion judge erred in principle by awarding
a period of reasonable notice that is outside the reasonable range for an employee
Page: 3
the character of the employment, while underemphasizing the other Bardal factors,
[6] The motion judge began his analysis at para. 13 of his reasons by reciting
all of the Bardal factors, and instructing himself to assess reasonable notice "in a
holistic manner", without giving disproportionate weight to one factor over another.
He was clearly alive to the very error the respondent alleges he committed.
[7] Furthermore, in his analysis, the motion judge cited a passage from Fisher
v. Hirtz, 2016 ONSC 4768, where Perell J. explained that a longer notice period is
generally justified for older, long term employees who are often at a competitive
passage demonstrates that he considered the other Bardal factors - age, length
[8] The motion judge also referred to the recent decision of Grace J. in Day v.
JCB Excavators Ltd., 2011 ONSC 6848 as a comparable. In Day, where a 51 year
old regional business manager's employment was terminated after over 14 years,
1 The Bardal factors, which are relevant to determining the period of reasonable notice
on wrongful dismissal, are derived from Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R.
(2d) 140 (Ont. H.C.),atp. 145.
Page: 4
Grace J. set the reasonable notice period at 17 months. The respondent objects
that in that case, there was evidence of poor prospects in the industry for re-
employment at the time. However, in this case, there was significant evidence of
the appellant's attempts to mitigate and his inability to find a comparable position.
This evidence addresses the factor of availability of similar employment that the
[9] The respondent also refers to three other cases from 1988, 2002, and 2009,
and 12 months were awarded respectively. It submits that those cases delineate
the correct range as 12 to 15 months. The same submission was made to the
motion judge. The motion judge was entitled to reject this submission, to refer to
the Day case as a very recent comparable, and to apply the Bardal criteria as he
did. I see no error in the approach taken or the result reached by the motion judge
[10] The appellant produced in evidence a document provided to him and other
the bonus or profit sharing plan of the parent company. The motion judge
operations manager and the appellant, and the appellant's past record of receiving
bonuses of between 3.87% and 6.02% of pre-tax profit, and found at para. 25 that:
[11 ] The motion judge awarded the appellant a bonus for 2016 based on 4.634%
[12] Before the motion judge, the respondent submitted that the appellant should
receive no bonus, on the basis that it discovered in 2015 that the appellant was
not a good manager and that they hoped he would improve in 2016 but he did not,
and was therefore not entitled to any bonus. In rejecting this submission, the
motion judge noted that the appellant's termination letter made no mention of any
concerns regarding his job performance. We note that in oral argument on the
appeal, counsel advised that the appellant was not told about any performance
[13] The respondent argues on appeal that the motion judge erred by awarding
the appellant a bonus for the 2016 year because: his division was not profitable
enough, it was underperforming, he had not created expected efficiency gains, and
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the company had denied other division heads a performance bonus in the past for
poor performance.
motion. It identifies no error of law or palpable and overriding error of fact by the
motion judge. There is no basis to interfere with the finding of the motion judge that
the appellant was entitled to share in the profit pool designated for bonuses for the
[15] The motion judge denied the appellant's claim for the loss of his benefit
package on the basis that the appellant did not prove that he suffered a loss. The
appellant gave no evidence that he replaced the benefits during the notice period.
[16] The motion judge cited no authority for this approach to the benefits issue.
However, the law in Ontario was settled by this court: in 1991 in Davidson v. Allelix
Inc. (1991), 7 O.R. (3d) 581 (C.A.), where the court stated at p. 589:
[17] The respondent refers to the 2010 decision of the New Brunswick Court of
Appeal in Jean v. Pecheries Roger L Ltee, 2010 NBCA 10, 354 N.B.R. (2d) 300
and submits that this court should follow that decision. The court there stated at
para. 56:
[18] I would not accept this submission. The argument asserted by the
respondent and accepted by the motion judge was specifically considered and
rejected by this court in the Davidson decision. If the law were to be changed, it
would have to be by a five-judge panel of the court, upon the order of the Chief
Justice.
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[19] The motion judge erred in law by rejecting the appellant's claim for benefits
during the reasonable notice period. The appellant proved on the motion that the
cost to replace his benefits for one year was $6,676, and is therefore entitled to
damages of $9,458, the replacement cost of his benefits over the 17 month notice
period.
[20] The motion judge rejected the appellant's claim to receive an amount to
compensate him for the loss of his bonus during the reasonable notice period. His
[21] I agree with the appellant that the motion judge erred in law by failing to
apply the two-part test set out by this court in Pacquette v. TeraGo Networks Inc.,
Page: 10
2016 ONCA 618, 352 O.A.C. 1, at paras. 30-31 for determining whether an
employee is entitled to be compensated for the loss of his bonus as part of his
[22] Had the motion judge applied the two-part test, based on his analysis
regarding the bonus owed for the 2016 year, he would have found that the bonus
anything in the Canerector Inc. Corporate Culture document that would limit that
[23] The respondent submits that the appellant would have known that it was the
company's policy not to pay any bonus to employees after their employment was
terminated, and that this was justified by the fact that part of the purpose of the
[24] Although that may have been the company's de facto approach, it was not
written into the document that governs the bonus payment scheme. Further, any
bonus plan will include both an aspect of incentive, as well as an aspect of reward
integral part of a compensation package and there is nothing in the bonus plan
for wrongful dismissal include compensation for loss of the bonus: Paquette, at
paras. 17-18; and Un v. Ontario Teachers' Pension Plan, 2016 ONCA 619, 402
[25] As the motion judge erred in law, his decision on the issue of bonus during
the notice period will be set aside and the amount claimed by the appellant,
$166,945, will be awarded for the 17 month notice period. This amount is based
on the average monthly value of the appellant's bonuses from the two years
preceding the termination of his employment (which were $120,000 for 2015 and
$115,687 for 2016), pro-rated to the end of the 17 month notice period.
Result
[26] In the result, I would allow the appeal on the issues raised by the appellant
and dismiss the cross-appeal. The appellant is entitled to damages for loss of his
2016 profit entitlement, for his loss of salary during the 17 month reasonable notice
period awarded by the motion judge, and also for the loss of the other components
[27] I would award the costs of the appeal and cross-appeal to the appellant,
by the appellant, I would refer the issue of costs of the motion back to the motion
judge to award based on the outcome of the appeal and on any offers to settle that
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