Philip Robert White

The Court of Appeal for Ontario dismissed the appeal of Gavin Bertsch from the Superior Court’s dismissal of his wrongful dismissal action against Datastealth Inc. The court upheld the enforceability of the employment agreement’s termination provision, which limited Bertsch’s entitlements on termination to the minimum requirements under the Employment Standards Act, 2000 (ESA).

The court found the clause to be unambiguous and compliant with the ESA, precluding any claim for common law damages.

Costs of $10,000 were awarded to the respondent.

This appeal addressed whether the trial judge erred in awarding eight months' damages for wrongful dismissal.

The appellant argued the trial judge improperly considered the respondent's prior service and the time it took him to find new employment.

The Court of Appeal affirmed the trial judge's decision, finding the eight-month notice period reasonable and within an acceptable range, emphasizing deference to the trial judge's assessment and the holistic application of Bardal principles.

The appeal was dismissed.

The plaintiff, a wrongfully dismissed regional sales manager, sought damages including lost commissions during an 8-month common law notice period.

The defendant argued that sales plan provisions limited commission entitlement to sales booked and billed prior to active employment termination.

The court applied the O'Reilly v. IMAX Corporation two-step analysis, finding that the 2017 Sales Plan did not unambiguously remove common law rights to commissions during the notice period.

Furthermore, changes in the 2018 Sales Plan regarding termination provisions were not properly communicated, lacked consideration, and potentially violated the Employment Standards Act, 2000.

The plaintiff was awarded damages for lost base salary, benefits, and commissions.

The plaintiff brought a motion for summary judgment seeking damages for wrongful dismissal after signing a release at the time of termination.

The employer relied on the signed release to bar the claim.

The court applied the unconscionability framework from Titus v. William F. Cooke Enterprises Inc. and held that the release was unenforceable due to a grossly improvident settlement, lack of independent legal advice, a significant imbalance of bargaining power at termination, and the employer’s conduct in presenting the release in a misleading and presumptive manner.

After setting aside the release, the court assessed reasonable notice under the Bardal factors.

Considering the employee’s nearly twenty years of service, age, and limited employment prospects, the court fixed reasonable notice at twelve months.