Gurlal Kler

Wrongful dismissal action by a senior executive seeking common law notice damages, bonus compensation, long-term incentive compensation, tax gross-up, benefits, and bad faith-related damages.

The court rejected inducement, fixed reasonable notice at eight months, and applied the common law framework governing incentive compensation during the notice period.

It held that the employee was entitled to a 40% STIP for 2019 and a prorated STIP through the end of notice, and to the value of LTIP units vesting within notice plus prorated value of unvested LTIP, because the forfeiture language in the grant documents was not sufficiently enforceable to remove common law entitlements.

Claims for tax gross-up and bad faith, punitive, and moral damages were dismissed, and limited benefits damages were awarded.

The defendant appealed an order striking its statement of defence in a wrongful dismissal action.

The statement of defence was struck after the defendant engaged in a months-long pattern of delaying and frustrating the scheduling of examinations for discovery, despite warnings from plaintiff's counsel and a case management judge.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Associate Justice's exercise of discretion.

The court confirmed that striking the pleading was a proportionate response to the defendant's egregious and ongoing dilatory conduct.

The plaintiff, a 61-year-old finance manager with nine months of service, was terminated without cause.

He brought a motion for summary judgment to determine the appropriate period of reasonable notice.

The court applied the Bardal factors, noting the plaintiff's short service, performance-based compensation, and the robust job market prior to the COVID-19 pandemic.

The court held that the pandemic, being a subsequent event, should not impact the notice period calculation and awarded two months' reasonable notice.

The plaintiff, a 61-year-old commission salesperson with 19.5 months of service, was terminated without cause shortly before the COVID-19 pandemic.

He brought a motion seeking 10 months of reasonable notice, while the defendant employer argued for two months.

The court assessed the relevant factors, noting the plaintiff's short tenure, non-managerial role, and the lack of evidence that his age or the pandemic significantly hindered his job search during the applicable notice period.

The court awarded a reasonable notice period of 2.5 months.

The court issued a consent timetable for a one-day summary trial, setting deadlines for the exchange of affidavits and the filing of a joint book of documents.