Iriotakis v. Peninsula Employment Services Limited

[Indexed as: Iriotakis v. Peninsula Employment Services Ltd.]

Ontario Reports

Ontario Superior Court of Justice

Dunphy J.

February 9, 2021

154 O.R. (3d) 373 | 2021 ONSC 998

Case Summary

Employment — Wrongful dismissal — Damages — Benefits — Deductions — Notice — 56-year-old plaintiff dismissed without cause from sales position after 28 months — Defendant paying four weeks of base salary plus benefits but no commissions — Plaintiff moving for summary judgment for wrongful dismissal — Plaintiff entitled to damages representing three months' working notice including base salary plus commissions accrued during that time pursuant to defendant's rules for calculating commissions — Canada Emergency Response Benefit payments were not deductible from damages on the facts.

The plaintiff was dismissed from his employment with the defendant without cause in March 2020. He was 56 years of age and had been employed in a sales position for almost 28 months, earning a base salary plus commissions. Upon his termination he was paid four weeks of base salary plus all benefits accruing during that period, but did not receive any amount in respect of commissions. He secured other employment about seven months later at a similar base salary. [page374] Mitigation was not an issue. The parties disagreed as to the period of reasonable notice, whether the plaintiff ought to be paid commissions following his termination and whether the plaintiff was entitled to other claimed payments arising from his termination. The plaintiff brought a motion for summary judgment for wrongful dismissal.

Held, the motion should be allowed.

The plaintiff was entitled to three months' notice. There was little doubt that the COVID-19 pandemic had some influence on the plaintiff's job search and would have been reasonably expected to do so when he was terminated. However, the impact of the pandemic on the economy in general and on the job market in particular was highly speculative and uncertain both as to degree and to duration at that time. The Canada Emergency Response Benefit ("CERB") could not be considered in precisely the same light as Employment Insurance benefits in calculating damages for wrongful dismissal. CERB was an ad hoc programme and neither employer nor employee paid into it or "earned" an entitlement over time beyond their general status as taxpayers. The level of benefit paid was considerably below the plaintiff's base salary, to say nothing of his lost commission income. On balance and on the facts, it was not equitable to reduce the plaintiff's entitlements to damages by the amount of any CERB payments he may have received given his limited entitlements from the defendant post-termination relative to his actual pre-termination earnings. Three months' notice represented a reasonable balancing of the relative brevity of the plaintiff's service, a consideration of his age and a consideration of his prospects.

The plaintiff was entitled to receive as damages an amount equal to the commissions on prior sales that would have accrued during his three months' working notice. When the plaintiff was hired in 2017, he acknowledged receiving and agreeing to sales, commission and bonus scheme rules. In 2019, those rules were changed to state that there would be no entitlements upon termination for any reason. The plaintiff could not have failed to understand that provision but he could not have known that it would be found to be unenforceable. Had the plaintiff been given the three months' working notice to which he was entitled, commissions on sales made by him between six and nine months prior to termination would have been both earned and payable by the terms of the rules. The amount so determined was not commission per se but damages calculated by the amount of money the plaintiff would have received under the rules but for the defendant's breach of contract.

The plaintiff was entitled to a car allowance of $600 per month for the three months' working notice he did not receive. He was also entitled to receive an amount in respect of RRSP, profit sharing, health care and cell phone benefits to be determined following written submissions if the parties failed to agree on the amount.

Bardal v. Globe & Mail Ltd., [1960] O.J. No. 149, 24 D.L.R. (2d) 140, [1960] O.W.N. 253, 1960 CanLII 294 (H.C.J.), apld

McGregor v. Atlantic Packaging Products Ltd., [2012] O.J. No. 2322, 2012 ONSC 2127 (S.C.J.); Samuel v. Benson Kearley IFG, [2020] O.J. No. 742, 2020 ONSC 1123, 60 C.C.E.L. (4th) 179 (S.C.J.), distd

Other cases referred to

Deschenes v. Little Employment Group Inc., [2003] O.J. No. 5394, [2003] O.T.C. 1136, 2003 CanLII 7172 (S.C.J.); Paquette v. TeraGo Networks Inc., [2016] O.J. No. 4222, 2016 ONCA 618, 269 A.C.W.S. (3d) 495, 34 C.C.E.L. (4th) 26, 28 C.C.P.B. (2d) 1, 352 O.A.C. 1 [page375]

Statutes referred to

Employment Standards Act, 2000, S.O. 2000, c. 41 [as am.], ss. 1(1) [as am.], 5(1), 11(1)

MOTION for summary judgment for wrongful dismissal.

Kimberly Sebag, for plaintiff.

Puneet Tiwari, for defendant.

[1] DUNPHY J.: — The plaintiff brought this motion for summary judgment in a wrongful dismissal case. Cause is not an issue nor is mitigation. Both parties agreed that summary judgment is the appropriate means of resolving their dispute.

Background Facts

[2] Cause not being at issue, I shall dispense with reference to much of what I would characterize as "atmospheric" evidence. The defendant chose to dispense with the plaintiff's services. It stands to reason that they found for their own business reasons that his continued employment with them added less value to their bottom line than the cost of employing him having regard to all of their available alternatives. This business conclusion and the reasons for it does not amount to an allegation of cause and simply has no bearing on the economic consequences of the decision to sever the employment relationship. The measure of damages resulting will not be impacted by a consideration of subjective atmospheric evidence proffered by either side.

[3] I venture the foregoing comment without intending to criticize counsel. Both swiftly eschewed any attempt to launch into such digressions as soon as the lack of an audience for them became apparent. They also very swiftly got down to brass tacks, wisely declining to advance long-shot arguments. There is a general willingness in our courts to entertain summary judgment motions or even short, hybrid trials in the case of wrongful dismissal with a view to ensuring that the procedures deployed to resolve a dispute are tailored in as pragmatic and proportionate a fashion as possible to the dispute at hand. This approach by the courts is only effective if the parties apply the same realistic and pragmatic view to their own case.

[4] Mr. Iriotakis was terminated from his employment without cause on March 25, 2020. He was then 56 years of age. His employment commenced on November 27, 2017 and was governed by an employment agreement dated November 14, 2017. He was thus employed for a few days shy of 28 months in total. [page376]

[5] His title was "Business Development Manager". Titles are not always very descriptive of the job. The word "Manager" does not denote a position involved in managing subordinate employees in this case. His position was in sales and involved working largely from home or on the road selling the various human resources and health and safety compliance services offered by the defendant to clients who might be interested in purchasing them.

[6] As a sales position, Mr. Iriotakis' compensation was very significantly commission based. He received a base salary of $60,000 per year¹ but his compensation for the last full year of his employment (2019) was $145,186.30. The basis of the calculation of his commission represents a significant component of the dispute between the parties and I shall return to it below.

[7] The parties were somewhat at odds about how "senior" Mr. Iriotakis' position ought to be considered. He was clearly well paid as the 2019 compensation indicates. There is no suggestion that he was in a supervisory or managerial role per se, but he did have significant responsibilities for developing customer relationships. He had 14 years of sales experience generally, but only two years of sales experience in what the defendant would consider a related area when he was hired (to which experience was of course added a further two and one-third years of experience gained working for the defendant). There was no lower rung on the sales ladder to compare him to within the Peninsula organization.

[8] The entire debate regarding the relative seniority or degree of responsibility of the employee's position is, in my view, a product of an overly literal approach to the application of the so-called "Bardal factors"² examined by our courts in considering the question of reasonable notice. These factors that are better understood as guidelines to approach the consideration of a problem rather than an exhaustive and mathematically determinative formula. For better or for worse, the determination of the level of reasonable notice at common law is a highly fact-specific exercise permitting few precise comparisons from case to case, an observation that does not preclude deriving helpful guidance as to appropriate ranges in particular.

[9] Upon his termination, the plaintiff was paid four weeks of base salary plus all benefits accruing during that four-week period. The plaintiff did not receive any amount in respect of [page377] commissions following his termination, the employer's position being that he neither earned nor became entitled to any commissions following the termination of his employment, including termination without cause.

[10] Mr. Iriotakis secured alternative employment starting October 19, 2020, just under seven months following the termination of his employment with the plaintiff. The base salary at his new position was slightly under his base salary with the plaintiff. It is too soon to assess whether his commission earnings will rival those he earned while employed with the plaintiff. As indicated, the defendant does not allege failure to mitigate in this case.

[11] While the parties initially disagreed about the degree to which the employment contract governed the question of notice, that disagreement quickly became consensus as the termination provisions in the employment contract in question were examined before me. There is an active debate that continues concerning the effect of alleged ambiguities in an employment contract regarding what constitutes lawful cause for termination. There is no debate that a termination clause that purports to prescribe payments below the minima prescribed by the Employment Standards Act, 2000, S.O. 2000, c. 41 ("ESA") will be struck. Such was the case with the termination clause in the present case in that it purported to absolve the employer of all liability towards the employee in the event of termination for cause, in language sweeping enough potentially to include accrued but unpaid wages.

Issues to be Decided

[12] As I have indicated, the issues between the parties narrowed somewhat as the argument of the motion progressed. The question of contractual vs. common law reasonable notice was resolved following questions from the bench -- common law reasonable notice is to be applied. There is no dispute that the issues remaining ought appropriately to be resolved through summary judgment. Mitigation is not at issue. The remaining questions to be resolved are essentially three in numbers (although each raises subsidiary questions):

(a) What is the period of reasonable notice to be applied to the termination of the plaintiff's employment?

(b) What if any payment of commission is the plaintiff entitled to receive following the termination of his employment?

(c) What other payments if any is the plaintiff entitled to receive? [page378]

Analysis and Discussion

(a) What is the period of reasonable notice to be applied to the termination of the plaintiff's employment?

[13] The plaintiff takes the position that Mr. Iriotakis was entitled to receive "at least" six months' notice of the termination of his employment. The defendant submits that reasonable notice would be in the range of two to three months.

[14] There are few questions more vexing than that of determining reasonable notice under the common law of the employment contract as it has evolved over the years. Difficulty is not a reason not to undertake the task nor does conflict in the jurisprudence render subjective a task that is intended to be undertaken objectively and on a principled basis. The fact of the matter is that the legislature has had any number of opportunities to wrestle with the problem and lay down clear rules to be followed in all cases. They have not done so or, perhaps more accurately, they have consistently mandated only minimum standards leaving contract and the common law to fill in the remaining blanks. This indicates to me an implicit acceptance by the legislature that the fact-specific analysis demanded by the common law remains a viable and even desirable means of approaching the question.

[15] The plaintiff leaned heavily upon the case of McGregor v. Atlantic Packaging Products Ltd., [2012] O.J. No. 2322, 2012 ONSC 2127 (S.C.J.) where a 60-year-old employee with just two years and five months service was awarded six months' notice. There are a number of distinguishing features in McGregor that make it difficult to consider it as a precedent warranting a notice period of that order of magnitude here. McGregor was a case where the defendant unsuccessfully alleged cause -- not a reason in principle to find a longer notice period but such cases tend to err on the side of longer rather than shorter periods of notice. I consider this to be relatively minor point of distinction. More importantly, in my view, was the nature of employment for which he was hired and the circumstances surrounding his hire. Mr. McGregor was hired to open a new office and his 25 years of potentially valuable experience with a competitor was a key driver in that decision. Things did not ultimately work out and his employment was terminated but without fault or cause to be laid at his feet. Mr. Iriotakis by contrast had only a very brief period of comparable prior experience in sales (comparable in the eyes of his employer at least). This observation is not to denigrate Mr. Iriotakis' prior history so much as to cast it in the [page379] light of the degree of influence that prior history had on his hiring in this case.

[16] The plaintiff also relied upon Samuel v. Benson Kearley IFG, [2020] O.J. No. 742, 2020 ONSC 1123 (S.C.J.) where a 61-year-old insurance salesperson was found to be entitled to six months' notice after almost three years' service. The plaintiff in Samuel also had very extensive relevant industry expertise. In determining the notice period, Charney J. found that, given the Bardal factors "and, in particular the plaintiff's age at the time of dismissal" the six-month notice period was warranted. In my view, it would be an error to make age the dominant consideration in arriving at a determination of reasonable notice in a case such as the present one. Such a reliance would create needless obstacles in the way of employees securing fresh employment at Mr. Iriotakis' age and would be quite counterproductive in the long run. Age and the prospects of securing alternate employment are factors but these must be considered along with others and with a proper degree of balance. There were other important factors present in Samuel and McGregor including extensive industry-specific experience in both cases.

[17] As far as can be determined on the record before me, Mr. Iriotakis' experience base when hired (and when terminated) was not as specialized as was the case in Samuel and McGregor. Only a relatively brief period of his employment history had been in sales in a comparable role. He has, it would seem, gone on to find another sales job in a different industry again.

[18] The defendant for its part relied quite heavily on Deschenes v. Little Employment Group Inc., [2003] O.J. No. 5394, 2003 CanLII 7172 (S.C.J.) where a non-managerial sales employee of almost exactly the same age and length of service as Mr. Iriotakis was found to be entitled to three months' notice. This case is of some assistance but is both dated (in terms of the job market under consideration) and somewhat sparse in details as regards the manner in which the Bardal criteria were applied.

[19] I was asked to make findings about the job market and the possible impact of COVID-19 on Mr. Iriotakis. I have little doubt that the pandemic has had some influence upon Mr. Iriotakis' job search and would have been reasonably expected to do so at the time his employment was terminated in late March 2020. However, it must also be borne in mind that the impact of the pandemic on the economy in general and on the job market, in particular, was highly speculative and uncertain both as to degree and to duration at the time Mr. Iriotakis' employment was terminated. The principle of reasonable notice is not a guaranteed bridge to alternative employment in all cases however [page380] long it may take even if an assessment of the time reasonably anticipated to be necessary to secure alternative employment is a significant factor in its determination. I must be alert to the dangers of applying hindsight to the measuring of reasonable notice at the time when the decision was made to part ways with the plaintiff.

[20] Mitigation is a different question. Reasonable notice is assessed at the time the decision is made; mitigation is assessed in light of the actual efforts of the plaintiff in the actual circumstances he then faced. While taking no issue with the diligence of the plaintiff's mitigation efforts, the defendant asked that I take into account the Canada Emergency Response Benefit (or "CERB") payments received by Mr. Iriotakis during whatever notice period I might find applicable.

[21] I agree with the defendant that CERB cannot be considered in precisely the same light as Employment Insurance benefits when it comes to calculating damages for wrongful dismissal. CERB was an ad hoc programme and neither employer nor employee can be said to have paid into the program or "earned" an entitlement over time beyond their general status as taxpayers of Canada. The level of benefit paid (approximately $2,000 per month) was considerably below the base salary previously earned by the plaintiff to say nothing of his lost commission income. On balance and on these facts, I am of the view that it would not be equitable to reduce Mr. Iriotakis' entitlements to damages from his former employer by the amount of CERB given his limited entitlements from the employer post-termination relative to his actual pre-termination earnings. I decline to do so.

[22] I do agree that the plaintiff's age and the uncertainties in the job market at the time of termination both serve to tilt the period of reasonable notice away from the fairly short period of notice that his short period of service might otherwise indicate. However, these factors do not apply to the exclusion of the others. A balanced approach is what is called for.

[23] Having regard to all of the Bardal factors, I am of the view that three months' notice represents a reasonable balancing of the relative brevity of the plaintiff's service, a consideration of his age and a consideration of his prospects. Mr. Iriotakis is entitled to receive an amount of money equivalent to the earnings and the value of the benefits that he would have earned had he been given the three month's working notice that he was entitled to receive. Such payment is to be made without offset or deduction for CERB payments received by the plaintiff. [page381]

(b) What if any payment of commission is the plaintiff entitled to receive following the termination of his employment?

[24] The question of commission entitlements was the issue about which the parties were the farthest apart. The complication in this case stems from the way in which the plaintiff's commissions were earned and paid and, in particular, the fact that commissions were calculated and paid nine months in arrears based upon the payment history of the client to whom the sale was made and whether the contract in question was still alive or had been cancelled by the client in the interim.

[25] Grappling with this issue requires something of a deep dive into the plaintiff's original employment arrangements in November 2017 and changes made to the commission rules that took place in January 2019.

[26] Part 4 of the November 27, 2017 employment agreement between the plaintiff and defendant provided details of the remuneration to be paid to the plaintiff for his services. After describing his base salary and benefits entitlements, the agreement provided the following in relation to commission:

You will receive up to 10% commission of the net value on all new business secured. The details of the commission structure may change from time to time at the discretion of the company, but at the time of appointment are set out below. . . . Commission payments are paid on a monthly basis in accordance with the rules and conditions set out in the Sales, Commission and Bonus Scheme Rules. This will be provided to you during your induction and may be subject to review and amendment from time to time.

(Emphasis added)

[27] The plaintiff agreed that he read and understood his employment agreement before starting and had informed himself about the commission structure, admitting that he did not find it particularly attractive (although he did find the base pay element to be attractive).

[28] Mr. Iriotakis was given a copy of the Sales, Commission and Bonus Scheme Rules that was applicable at that time (2017) and signed an acknowledgement of receipt dated December 1, 2017 during his induction period. He agreed that he read the Rules before signing and understood them to be part of starting his employment and that he had the opportunity to ask questions if he had any. The acknowledgement read:

By signing below, I agree that I have had sufficient time to review the commission and bonus scheme rules. I understand and accept Peninsula Employment Services Limited Commission and Bonus Scheme Rules. I ACKNOWLEDGE RECEIPT OF THIS COMMISSION AND BONUS SCHEME RULES AND CONFIRM TO THE ABOVE TERMS AND RULES. [page382]

[29] The Rules provided the means of calculating commissions on various types of sales, how to account for discounted sales and similar matters. The company would not provide an accounting of commissions until after the eighth month of an employee's service because commissions were calculated and paid only after nine months. The Rules notified the employee that the amount of commissions to be received, depended upon, among other things, the payment and cancellation history of the client to whom the sale was made. The 2017 Rules also provided the following in respect of the impact of the termination of employment:

To qualify for any commission or bonus payment you must be actively employed by Peninsula Employment Services Ltd. Entitlement to qualify for any commission or bonus payment will cease immediately upon termination of your employment with Peninsula Employment Services Limited.

(Emphasis added)

[30] Mr. Iriotakis agreed that he read and understood this provision at the time he signed it as well. By way of foreshadowing, the 2017 version of the Rules did not contain an explicit statement that commissions would not be earned or payable during any period of reasonable notice in the event of a without cause termination (beyond the reference to "must be actively employed" above).

[31] Before moving past this point, I should at least acknowledge that the nine-month lag time and loss of the right to commissions on termination of employment is not as confiscatory or one-sided as it might at first blush appear in this context. The product being sold on commission was a service contract with a duration longer than just one or two months. The commission was paid on the "value" of the contract, a value that would be speculative up front given the risk of a customer cancelling or failing to make payments. I have no evidence of the calculation of the "deal value" relative to the nine-month payment lag on commissions, but it is reasonable to assume that the value used to calculate commission is closer to the aggregate paid over nine months or longer than to one or two months' worth of payments. Furthermore, whereas the plaintiff had been on 100 per cent commission at his prior position, a prime attraction of his position with the defendant was the existence of a significant base salary that represents in economic terms at least something of a "pre-payment" of a portion of the value of the deals he was bringing in. In other words, unlike a 100 per cent commission arrangement, the employer here bears some of the risk of customer default [page383] or cancellation through the base salary and a departed employee who made the sale will no longer be in a position to placate the customer or otherwise mitigate default or cancellation risk. None of this alters the legal analysis of the contractual relationship between employer and employee here but it does at least place the relationship in a more balanced light.

[32] The Rules were changed in 2019. There is no need for me to quote these changes at length. The issue raised here is not the meaning of the words used -- for the meaning is quite plain and clear -- so much as whether and to what degree the terms of the Rules as revised were brought to the plaintiff's attention. For present purposes, the changes may be summarized as follows:

(a) The language used in the Plan was generally rendered in more direct, plain English and practical examples of the application of numerous provisions were added to explain their operation -- a revision as to style that lengthened the document somewhat compared to its 2017 predecessor;

(b) Significant changes were made to the opportunities to earn commission -- some terms were tightened while others provided the salesperson with greater flexibility and potential; and

(c) The language describing when commissions are deemed earned and payable and the effect of termination of employment was tightened somewhat with some potential ambiguities that existed in the prior versions clarified, but their essential terms remained unchanged.

[33] Mr. Iriotakis signed the revised Rules on January 10, 2019 at 12:36 p.m. In addition to signing the agreement at the end, he initialed every page including the page containing the paragraph with the "all-caps" title "F. NO ENTITLEMENTS UPON TERMINATION FOR ANY REASON".

[34] The plaintiff suggested that the employer cannot rely on the new Rules because there is no evidence that specific provisions such as the "no entitlements upon termination for any reason clause" were brought to his attention. With respect, I cannot agree with that bald assertion.

[35] There can be no question that Mr. Iriotakis read and was aware of the terms of the 2019 Rules -- his signature and initials on every page attest to this in black and white and carry more weight than his convenient post-litigation denial. The language used in the Rules was clear and understandable. He was given ample time -- several days in fact -- to review the language at his leisure and to ask questions if he had any. He admitted to having read and understood the 2017 Rules and employment contract, including the provisions reserving the right to the employer [page384] to amend the Rules in future. He had every opportunity and reason to review the 2019 revisions with the same diligence and care he showed in 2017 given the relative importance of commission in his overall remuneration. I do not accept his convenient denial of having done so.

[36] The revised Rules provided him with enhanced earnings opportunities, and he had the opportunity to profit from these. On cross-examination, he conceded that he had. The suggestion that there was no consideration for the modification to the terms of his employment at that time is meritless.

[37] I am thus left with the following issue. The Rules as revised quite explicitly exclude any entitlement to accruing commission during any period of common-law reasonable notice following actual termination of employment. While the predecessor Rules were arguably less clear on this subtle point, I have found that the plaintiff read the revised Rules in 2019 and cannot fail to have understood them if he did so. Whether he turned his mind to the prospects and consequences of termination is of course another matter.

[38] What he could not have known -- and a discussion with his employer would not have clarified the point -- was that the provisions of his employment contract precluding common-law damages upon termination would be found to be unenforceable (as I have found).

[39] The plaintiff takes the position that to the extent the plaintiff's contract of employment with the defendant purports to deprive him of commissions on sales made prior to the termination of his employment that are payable afterwards, such provisions are void as contrary to ss. 1(1) and 11(1) of the ESA that require the payment of all "earned" "wages" and s. 5(1) of the ESA that prohibits contracting out of its minimum standards. In this regard, I agree with the plaintiff in part.

[40] It is helpful to subdivide this issue into three parts for clarity. First, there is the consideration of commissions arising on sales made prior to termination in fact but which would have become payable during the notice period but for the termination of the plaintiff's employment. The second would be commissions arising from sales made prior to termination that would have become payable beyond the notice period but for the termination of the plaintiff's employment. These first two amounts can be calculated with precision no later than nine-months post-termination because the only variable -- the cancellation or payment history of the client to whom the plaintiff made an actual sale -- will have become known. Finally, there is a third category which involves speculation and is unknowable: the amount of [page385] commission that would have become earned and payable on sales made during the notice period if the plaintiff had not been terminated. Of these, only the first is, in my view, a component of damages that can be ordered in this case.

[41] While the Rules purport to exclude the payment of commission becoming payable during a common law notice period, such exclusion in my view violates ss. 1(1), 5(1) and 11(1) of the ESA and is of no force or effect.

[42] I have found that the plaintiff was entitled to reasonable notice of the termination of his employment and, in the absence of such notice, to damages in lieu of that notice. Had the plaintiff been given three months working notice -- as he was entitled to receive -- commissions on sales made by him between six and nine months prior to the termination of his employment would have been both earned and payable by the terms of the Rules whether or not he made a single incremental sale subject only to the passage of time and a determination of the actual payment history of the relevant clients during that period of working notice. Having deprived the employee of the notice to which he was entitled, the employer must put the employee in the same position -- as far as money can do -- as the employee would have been in at the end of the working notice he or she failed to receive: Paquette v. TeraGo Networks Inc., [2016] O.J. No. 4222, 2016 ONCA 618, at para. 16. The amount so determined is not commission under the Rules per se but damages calculated as the amount of money that the plaintiff would have received under the Rules but for the breach of contract by the employer. Had he been working as he was entitled to so, he would have been providing services to the employer and the exclusion in the Rules would have had no application. With the passage of time, that amount can now be calculated with precision and without difficulty (although I do not have the necessary data before me).

[43] The same line of reasoning produces the opposite result as regards the other two categories of commission described above. At the end of the notice period, the plaintiff had no right to be employed and no eligibility to receive commissions under the Rules that governed his ability to earn them. The commissions on prior sales were not fully earned while the plaintiff was still an employee because they remained contingent on the future payment history of each client pursuant to the Rules that created his entitlement in the first place. Such amounts do not fall within the definition of "wages" that have been "earned" under ss. 1(1) and 11(1) of the ESA. The terms of the Rules are clear and unambiguous on this point. [page386]

[44] The same reasoning applies with greater force in the case of putative earnings during working notice not given. Had reasonable working notice been given, the plaintiff would have been entitled to his base salary and the portion of commissions on prior sales that became earned and payable during that notice period. Any new sales made would have generated no commissions earned during the period of his active service under the Rules that governed his entitlements. Whether he is assumed to have made new sales at, below or above the rate he was making them before his termination would have no impact on his earnings during that period. To the extent it is relevant, it is hard to imagine how he could have had much in the way of imputed sales during the three-month notice period at all events given that this time frame in fact coincided with the period of hardest pandemic lock-down.

[45] Accordingly, I find that the plaintiff is entitled to receive as damages and amount equal to the commissions on prior sales that would have accrued due in respect of prior sales during the three months of working notice that he was entitled to but did not receive. The information necessary to calculate this entitlement is by now available to the defendant. I am directing that this be calculated forthwith, and the underlying data made available for inspection on request should the plaintiff wish to verify it. If there is any difficulty in finalizing this figure, the parties may address the matter in written submissions to me to be delivered at the same time as costs submissions referred to below.

(c) What other payments if any is the plaintiff entitled to receive?

[46] The plaintiff had a $600 per month car allowance. He is entitled to receive this amount for the three months working notice he did not receive.

[47] There are four relatively minor items of claimed damages that I do not have sufficient information before me to resolve and time limits prevented the parties from addressing properly in argument. These are as follows:

(a) Cell phone plan -- it is agreed that the plaintiff lost the benefit of his employer paid cell phone and plan. It is not clear whether he already had his own phone and plan in addition to the employer phone or whether he was required to acquire a new phone and plan after returning his work telephone. I shall leave the parties to resolve this or they may elect to allow $75 per month x three months or $225 as damages for loss of this benefit; [page387]

(b) $137.50 per month x 3 or $412.50 in contributions to RRSP and Profit-sharing plan: there was some confusion at the close of argument on this matter. If the parties are unable to agree on this amount, they may state their positions on this and reference the applicable evidence in written submissions to be delivered at the same time as costs submissions; and

(c) $200 per month x 3 or $600 in health spending allowance: this was a benefit payable against actually incurred expenses. There is no evidence that any eligible expenditures were incurred during the three-month notice period. If the parties are unable to resolve this question among themselves, written submissions may also be made at the same time as the costs submissions are made.

Disposition

[48] Accordingly, I find that the plaintiff is entitled to receive the following payments:

(a) payment of three months' remuneration -- both base salary and actual accruing commission that would have been earned had he been given three months' working notice prior to the termination of his employment -- less the amounts paid to him on termination;

(b) $600 in respect of his car allowance; and

(c) an amount in respect of RRSP, profit sharing, health care and cell phone benefits to be determined by me following written submissions if the parties fail to reach agreement in accordance with my reasons.

[49] If the parties are unable to resolve the matter of costs, I will receive submissions from them in writing.

[50] Costs submissions should not exceed five pages exclusive of an outline of costs and both sides should expect to provide an outline in order to inform my assessment of the reasonable expectations of the parties. Cases should be attached in list format only providing they are reported and electronically available. I will grant the parties two weeks to discuss the matter. If they are unable to resolve the matter of costs, the plaintiff's submissions should be delivered (electronically) via my assistant three weeks from today with the defendant's response following one week later.

[51] The same order is made -- mutatis mutandis -- as regards the calculation of the precise amounts required to satisfy my [page388] judgment. I expect that I have provided the parties with sufficiently precise directions to calculate all required payments. Should there be any issues in that regard, the parties should discuss the matter and, if unable to resolve it, written submissions should be prepared and delivered to me for a decision.

[52] Orders accordingly.

Motion allowed.

Notes

1 His guaranteed minimum remuneration for his first year of employment was $85,000 - a guarantee that had fallen away prior to his termination.

2 Bardal v. Globe & Mail Ltd., [1960] O.J. No. 149, 1960 CanLII 294, 24 D.L.R. (2d) 140 (H.C.J.), at p. 10.

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