M. Catherine Osborne

An appeal from a summary judgment decision concerning the entitlement of a wrongfully dismissed employee to exercise stock options and restricted share units during the reasonable notice period.

The employer argued that contractual language prevented vesting after dismissal, relying on precedent.

The court upheld the motion judge's finding that the employee was entitled to damages for lost opportunity to exercise awards that would have vested during the notice period, distinguishing the controlling precedent on the basis that the contractual language lacked sufficient clarity to unambiguously remove common law rights.

The employee's cross-appeal regarding damages calculation was also dismissed.

The court provided supplementary reasons for decision regarding the quantification of damages for the loss of Restricted Share Units (RSUs) and stock options following the plaintiff's wrongful dismissal.

The plaintiff was awarded a 24-month reasonable notice period.

The central issue was determining the appropriate timeframe for calculating the value of these equity instruments, specifically how long after vesting the plaintiff would have sold them.

The court rejected both the plaintiff's claim of immediate sale and the defendant's proposal of 13.7 months based on pre-termination sales activity.

Instead, by examining the plaintiff's actual sales activities during the notice period, the court determined that damages should be calculated on the basis that the plaintiff would have sold the shares five months after their vesting date.

The plaintiff, a senior executive with 22 years of service, was terminated without cause by the defendant.

He brought a motion for summary judgment seeking damages for wrongful dismissal.

The court granted summary judgment, fixing the reasonable notice period at 24 months.

The court held that the plaintiff's entitlement to commissions was not reduced by 50% under the employer's commission plan, as the reduction clause only applied to voluntary resignations.

The court also awarded damages for lost stock options, restricted share units, pension contributions, and certain benefits that would have accrued during the notice period, deferring the exact quantification of damages to a later date.

The applicant brought a motion to dismiss or adjourn a motion brought by the respondent Ontario Human Rights Commission, which was scheduled to be heard by a panel of the Divisional Court.

The applicant argued that the respondent failed to comply with a production order and a previous costs order.

The court ordered the respondent to pay the outstanding costs order but dismissed the motion to dismiss or adjourn, finding that the applicant's arguments regarding the timing of the respondent's motion should be made to the panel hearing that motion.

The respondent filed a human rights complaint which the Ontario Human Rights Commission decided not to deal with pursuant to s. 34(1)(b) of the Human Rights Code.

On an application for judicial review, the respondent sought production of a legal opinion prepared for the Commission by its in-house counsel.

The motions judge and Divisional Court ordered production, finding the Commission was not adverse in interest to the respondent.

The Court of Appeal allowed the appeal, holding that the legal opinion is protected by solicitor-client privilege, which is a fundamental civil and legal right not abrogated by s. 10 of the Judicial Review Procedure Act.