Reasons on Summary Judgment Motion

Court File and Parties

Court File No.: CV-20-293 Date: 2022-04-29 Superior Court of Justice – Ontario

Between: WILLIAM GASCON also known as BILL GASCON, Plaintiff (Moving Party) And: NEWONT GOLDCORP INTEGRATED SERVICES INC., Defendant (Responding Party)

Counsel: W. Mouck, for the Plaintiff N. Chowdhury, for the Defendant

Heard: December 22, 2021 in Kenora, via Zoom

Before: Justice J. Fregeau

Introduction

[1] The plaintiff, William Gascon, was hired by Goldcorp Inc. (“Goldcorp”) as the General Manager of Goldcorp’s Mussselwhite Mine in 2013. In 2016, Mr. Gascon accepted the position of General Manager of Goldcorp’s Red Lake Mine and entered into an employment agreement with Goldcorp on July 18, 2016 (the “July 2016 Employment Agreement”).

[2] In April 2019, all issued and outstanding shares of Goldcorp were acquired by Newmont Mining Corporation (“NMC”), the parent company of the defendant, Newmont Goldcorp Integrated Services Inc. (“Newmont Goldcorp”). As a result, Newmont Goldcorp became the owner of the Red Lake Mine.

[3] Newmont Goldcorp chose to retain Mr. Gascon as the General Manager of the Red Lake Mine. On May 6, 2019, Mr. Gascon executed an Executive Employment Agreement establishing the terms and conditions of his employment with Newmont Goldcorp, effective April 18, 2019 (the “May 2019 Employment Agreement”).

[4] In the role of General Manager of the Red Lake Mine, Mr. Gascon was Newmont Goldcorp’s most senior employee on site, with responsibility for a workforce of over 900 employees plus approximately 200 contractors.

[5] Both employment agreements established Mr. Gascon’s annual base salary and the terms of his annual Long-Term Incentive (“LTI”) compensation.

[6] In November 2019, Newmont Goldcorp entered into an agreement to sell the Red Lake Mine to Evolution Mining Gold Operations Ltd. (“Evolution”). The anticipated completion date of this transaction was March 31, 2020. Between November 2019 and March 2020, Mr. Gascon, in his role as General Manager of the Red Lake Mine, assisted in facilitating the sale of the Red Lake Mine to Evolution.

[7] On March 24, 2020, Newmont Goldcorp learned that Evolution would not be retaining Mr. Gascon as an employee of Evolution after the purchase of the Red Lake Mine was completed. On March 30, 2020, Newmont Goldcorp provided Mr. Gascon with notice of termination of his employment effective March 31, 2020. Newmont Goldcorp acknowledges that Mr. Gascon’s termination was without cause.

[8] In August 2020, Mr. Gascon initiated a wrongful dismissal action against Newmont Goldcorp. Several of the claims advanced in the Statement of Claim have been resolved. The unresolved issues to be decided on this motion are:

1. Is Mr. Gascon entitled, contractually or at common law, to damages in lieu of a notional Long-Term Incentive (“LTI”) award of equity compensation from Newmont Goldcorp and, if so, in what amount;
2. If so, would the LTI award have vested immediately upon Mr. Gascon’s termination without cause or on a pro-rata basis as of his termination date of March 31, 2020;
3. Is Mr. Gascon entitled to moral or exemplary damages because of the manner of his termination and/or as a result of the defendant’s conduct in the period of time prior to his termination; and
4. Is Mr. Gascon entitled to damages of $4,197.36 to compensate him for expenses incurred in moving out of the company owned home following termination.

Background

[9] In August 2019, David Thornton, Vice President, Productivity of Newmont Goldcorp, advised Mr. Gascon that Newmont Goldcorp was entertaining the sale of the Red Lake Mine to potential purchasers.

[10] On September 17, 2019, Mr. Thornton told Mr. Gascon that Newmont Goldcorp had received substantial interest in the purchase of the Red Lake Mine. He also told Mr. Gascon that he would be “going with” the Red Lake Mine when it was sold. Mr. Gascon understood this comment to mean that Mr. Thornton anticipated his employment at the Red Lake Mine would continue with the purchaser of the Red Lake Mine after completion of the transaction.

[11] On or around November 24, 2019, Mr. Thornton advised Mr. Gascon that Newmont Goldcorp had entered into an agreement to sell the Red Lake Mine to Evolution and that the expected closing date of the transaction was March 31, 2020.

[12] On November 26, 2019, Mr. Gascon received an email from Rob Atkinson, Chief Operating Officer for Newmont Goldcorp. In this email, Mr. Atkinson wished Mr. Gascon “every success in the future” and thanked Mr. Gascon for his “time and service with Newmont Goldcorp”. At about the same time, Mr. Gascon received an email from Blake Rhodes, Senior Vice President of Strategic Development for Newmont Goldcorp. In this email, Mr. Rhodes thanked Mr. Gascon for the work he had done “to make this transaction happen”. Mr. Rhodes also advised Mr. Gascon that he had “expressed [his] very positive view of [him] to Jake [ Klein, CEO of Evolution]”. Mr. Gascon inferred that these comments, from senior Newmont Goldcorp executives, might mean that he would no longer be an employee with Newmont Goldcorp after the sale to Evolution was completed.

[13] On November 27, 2019, Mr. Gascon spoke with Mr. Thornton and asked him about the comments made to him by Mr. Atkinson and Mr. Rhodes. According to Mr. Gascon, he specifically asked Mr. Thornton if he still had a job with Newmont Goldcorp and Mr. Thornton told him that he did. On November 28, 2019, Mr. Gascon again asked Mr. Thornton about his future employment with Newmont Goldcorp. According to Mr. Gascon, Mr. Thornton again advised him that he would “go with” the Red Lake Mine.

[14] Mr. Thornton has a different recollection of the November 2019 discussions he had with Mr. Gascon pending the completion of the sale of the Red Lake Mine to Evolution. According to Mr. Thornton, pursuant to Newmont Goldcorp’s discussions with Evolution, he anticipated that Evolution would retain Mr. Gascon as the General Manager of the Red Lake Mine and that Evolution “would likely be making him an offer of employment”. Mr. Thornton deposes that he also “made it clear to Mr. Gascon that he would have to await further information” because Evolution “had not yet provided us with firm details of its plans”.

[15] Between March 12, 2020 and March 14, 2020, Mr. Gascon and Mr. Thornton engaged in an email exchange initiated by Mr. Gascon. The focus of the communication was Mr. Gascon’s compensation.

[16] On March 12, 2020, Mr. Gascon expressed surprise that he had not yet received his LTI grants or his merit increase, both of which were traditionally issued annually in either late February or early March. Mr. Thornton replied on March 13, 2020 and told Mr. Gascon that he understood the “confusion and frustration as to why the merit increase for the Red Lake workforce is delayed (and the long term incentives being delayed for Red Lake management team), but Evolution has a plan to replace them in a timely manner soon after closing…”.

[17] Mr. Gascon responded later the same day and clarified that his question “was about [his] own personal compensation” as an executive and employee of Newmont Goldcorp. Mr. Thornton replied and again suggested that Newmont Goldcorp was “working with Evolution” in regard to the merit increases and that “with respect to LTI’s, Evolution is still working through different options…”.

[18] This email chain continued with the following March 14, 2020 email from Mr. Gascon to Mr. Thornton:

Not sure why you keep bringing up Evolution, as I am employed by Newmont. From your previous responses, is it my understanding that Newmont will not be issuing my merit increase, RSU’s and PSU’s this year. Is that correct?

[19] Mr. Thornton responded on March 16, 2020:

We understand your frustration with the delay but unfortunately it is unavoidable in the context of the Red Lake sale transaction. Newmont has agreed not to issue merit increases or equity grants to any Red Lake employees (including you) prior to Closing and has negotiated with Evolution that Evolution will provide merit increases and replacement equity grants and any going-forward equity awards to applicable Red Lake employees following the sale and, as mentioned below, to compensate its new employees for any delay in transitioning them to Evolution compensation plans, including retroactivity of any merit increase.

As you know, we are currently targeting a closing date of March 31, 2020 and would ask for your cooperation in continuing to perform your job duties on a business as usual basis until Closing.

[20] In mid-March 2020, Mr. Gascon reviewed a form letter drafted by Newmont Goldcorp Human Resources to be distributed to employees that would be remaining at the Red Lake Mine after its sale to Evolution. This letter explained the details of the transition of their employment from Newmont Goldcorp to Evolution. Mr. Gascon’s name was not on the distribution list for this letter.

[21] Mr. Thornton deposes that, “about mid-March 2020…Newmont definitively learned that Evolution Mining would not be making an offer of employment to Mr. Gascon”. As noted in the introduction, Mr. Thornton personally became aware of Evolution’s decision not to retain Mr. Gascon on March 24, 2020. On cross-examination, Mr. Thornton testified that the decision to terminate Mr. Gascon was not made until “the end of March [2020]”.

[22] On March 18, 2020, Mr. Gascon instructed his lawyer to send a demand letter to Mr. Thornton asserting that Newmont Goldcorp’s conduct amounted to constructive dismissal. This letter was received by Mr. Thornton the same day. Newmont Goldcorp did not respond to this letter.

[23] On March 30, 2020, Mr. Gascon, together with Fern Gaspar, Newmont Goldcorp’s Human Resources Manager of the Red Lake Mine, met virtually with Mr. Thornton. Mr. Thornton confirmed that Mr. Gascon would not be receiving an offer of employment from Evolution. Mr. Gascon was told by Mr. Thornton that his employment with Newmont Goldcorp was terminated effective March 31, 2020 and Mr. Gascon was provided with a formal Notice of Termination which included a “without prejudice” resolution proposal.

[24] During his employment at the Red Lake Mine, Mr. Gascon resided in a residence owned by Newmont Goldcorp. Mr. Gascon alleges that during the March 30, 2020 meeting with Mr. Thornton and Mr. Gaspar, Mr. Thornton told him that he had two months to vacate this residence. Mr. Gascon further alleges that he requested an additional month to vacate and that Mr. Thornton told him he would get back to him, which he never did.

[25] Mr. Thornton deposes that he “expressly advised Mr. Gascon that if he required additional time to move out of his company housing, particularly during the COVID-19 period, he needed to only ask Evolution Mining’s Chief Operating Officer for more time”. Mr. Thornton further deposes that “if Mr. Gascon needed more time to secure new housing or to move his possessions out of the company housing, to the best of my knowledge, he made no request for same”.

The July 2016 Employment Agreement

[26] The terms and conditions of Mr. Gascon’s employment with Goldcorp as General Manager, Red Lake Gold Mine, commencing August 1, 2016, included the following:

1. Annual Base Salary - $280,000 CAD;
2. Annual Bonus – target of 50% of base salary;
3. Long Term Incentives – Restricted Share Units (“RSUs”), Stock Options and Performance Share Units (“PSUs”) awarded at the discretion of the company, commensurate with position and performance of both the individual and the company. An award in any year does not guarantee an award in any subsequent year. All awards are subject to approval by the board.

[27] RSU and PSU awards have no tangible value before they vest and the value of each award on vesting follows a calculation formula conditional on various factors. Each award follows a vesting schedule and is conditional on several factors, including that the employee continue working for the employer for the number of years it takes an LTI award to vest.

[28] Prior to the April 2019 acquisition of Goldcorp by NMC, RSU and PSU awards made by Goldcorp to its employees, including Mr. Gascon, were governed by Goldcorp’s RSU and PSU plans. The Goldcorp RSU and PSU plans provided that if there was a “Change of Control” of Goldcorp, as defined in the plans, and if Goldcorp or any successor corporation were to terminate an employee’s employment within 12 months of the Change of Control, then all outstanding RSUs and PSUs would immediately vest on the termination date.

[29] In each of 2017, 2018 and 2019, Mr. Gascon received RSU and PSU awards from Goldcorp, each of which were governed by Goldcorp’s contractual documents. The value of these LTI grants was ultimately determined to be $428,400.00, $439,110.00 and $497,658.00 respectively. Upon termination on March 31, 2020, Mr. Gascon became entitled to the unvested RSUs and PSUs awarded to him by Goldcorp in 2017, 2018 and 2019 because:

1. NMC’s April 2019 acquisition of Goldcorp was a Change of Control event under the Goldcorp plans; and
2. Newmont Goldcorp’s termination of Mr. Gascon’s employment within 12 months of the Change of Control event caused the 2017, 2018 and 2019 awards to become subject to the accelerated vesting under the applicable Goldcorp plans.

[30] As a result, post-termination Mr. Gascon became entitled to the total value of the unvested LTI awards which had been granted to him in accordance with Goldcorp’s RSU and PSU plans in 2017, 2018 and 2019. Mr. Gascon has received this compensation.

The May 2019 Employment Agreement

[31] NMC’s acquisition of Goldcorp closed on April 19, 2019. On May 6, 2019, Mr. Gascon executed an Executive Employment Agreement (the May 2019 Employment Agreement), effective as of April 18, 2019. Pursuant to this agreement, Mr. Gascon’s base salary increased to $400,000.00 per year plus LTI and bonus.

[32] For reasons not explained in the record on this motion, the parties to the May 2019 Employment Agreement are set out as Goldcorp Inc. and William Gascon. The recitals further state as follows:

A. The Executive is currently employed by Goldcorp Inc. pursuant to a written employment agreement (the “Current Employment Agreement”).

B. Pursuant to a Plan of Arrangement, Newmont Mining Corporation (“NMC”) will acquire all of the issued and outstanding shares of Goldcorp Inc. and Goldcorp Inc. will become a wholly-owned subsidiary of NMC (the “Arrangement”).

C. On the effective date of the Arrangement the name of NMC will be changed to Newmont Goldcorp Corporation (“Newmont Goldcorp”).

D. Subsequent to the closing of the transactions contemplated in the Arrangement (the “Closing”), Goldcorp Inc. will continue to employ the Executive. At some time subsequent to the Closing this Agreement will be assigned to Newmont Goldcorp Integrated Services Inc.

E. Subject to the Closing, the Corporation wishes to offer to the Executive and the Executive wishes to accept employment with the Corporation on the terms and conditions in this Agreement.

[33] According to Mr. Thornton, when NMC acquired Goldcorp in April 2019, Goldcorp RSU and PSU plans were “cancelled and ceased to exist”. However, pursuant to the terms of the May 2019 Employment Agreement, Goldcorp became a wholly-owned subsidiary of NMC upon NMC’s acquisition of all issued and outstanding shares of Goldcorp. The May 2019 Employment Agreement further states that Goldcorp Inc. will continue to employ Mr. Gascon subsequent to closing and that “at some time subsequent to closing…this Agreement will be assigned to NMC”. There is no evidence that this assignment ever occurred.

[34] Pursuant to Articles 2.1 and 2.2 of the May 2019 Employment Agreement, Mr. Gascon’s unvested Goldcorp RSUs and PSUs were assumed by Newmont Goldcorp, as was the vesting schedule.

[35] Article 11 of the May 2019 Employment Agreement establishes the terms of the LTI program:

11. LONG TERM INCENTIVE PROGRAM

11.1 From and after the Effective Date of this Agreement, the Executive is eligible to participate in the Corporation’s LTI program which is designed to align compensation with shareholder interests and the Corporation’s long-term performance. The LTI program includes two forms of long-term incentive: Restricted Stock Units (“RSUs”) and Performance-leveraged Stock Units (“PSUs”)

11.2 The Executive’s current RSU target value is 40 percent (40%) of the Executive’s Base Salary (the “RSU Target”). Such RSU Target may be reviewed and amended at the sole discretion of the Corporation.

11.3 The executive’s current PSU target value is 40 percent (40%) of the Executive’s Base Salary (the “PSU target”). Such PSU Target may be reviewed and amended at the sole discretion of the Corporation.

11.4 The vesting, exercise and termination of RSUs and PSUs are governed by the terms of the respective award grant agreement entered into with the Executive at the time the RSUs or PSUs are granted and any other terms contained in the LTI program as implemented by the Board from time to time at its discretion (collectively the “LTI Terms”).

11.5 The Executive acknowledges and agrees that a grant of RSUs and/or PSUs is conditional on the approval of the Board and that such RSUs and/or PSUs are not earned until they vest in accordance with the LTI Terms.

11.6 The Executive acknowledges and agrees that a grant of RSUs and/or PSUs is not guaranteed and that a grant received in one year does not guarantee receipt of a grant in any subsequent year.

11.7 The Executive’s eligibility for a grant of RSUs and PSUs and participation in the Corporation’s LTI program terminates on the Termination Date. The Executive will not be entitled to receive a grant or damages in lieu of a grant for any period of time after the Termination Date regardless of any severance or pay in lieu of notice of termination provided by the Corporation.

11.8 At any time, with or without notice, the Corporation may amend, change, or eliminate any LTI program including the Executive’s eligibility for any RSU or PSU grant(s).

[36] Article 17.3 of the May 2019 Employment Agreement states:

17.3 Following a termination of this Agreement without Cause, the vesting, exercise and termination of RSUs and/or PSUs will be governed by the LTI Terms.

The Plaintiff’s Position

[37] Mr. Gascon submits that LTI awards were an integral part of his compensation with Newmont Goldcorp and that Newmont Goldcorp’s failure to grant him an LTI award in March 2020 was arbitrary, unfair and unreasonable. Mr. Gascon further submits that the LTI award that Newmont Goldcorp should have granted him in March 2020 would have fully vested as a result of Newmont Goldcorp’s without cause termination of him on March 30, 2020.

[38] Mr. Gascon claims damages in the amount of $455,056.00 in lieu of the value of the LTI award which he contends Newmont Goldcorp should have granted him in March 2020. The damages claimed are equivalent to the average value of LTIs awarded to him by Goldcorp in 2017, 2018 and 2019.

[39] Mr. Gascon further submits that Newmont Goldcorp, between November 2019 and March 30, 2020, misled him, acted dishonestly and breached the duty of good faith owed to him when he repeatedly and reasonably inquired about the status of his employment with Newmont Goldcorp following the sale of the Red Lake Mine to Evolution. Mr. Gascon submits that Newmont Goldcorp’s conduct toward him in the period of time prior to his without cause termination is worthy of an award of exemplary damages against the defendant.

[40] Finally, Mr. Gascon claims damages in the amount of $4,197.36 as compensation for moving expenses incurred as a result of being forced out of his company-owned residence subsequent to termination.

[41] Mr. Gascon acknowledges that the granting of LTIs is discretionary and that a grant of LTIs to him in one year is not a guarantee of a grant of LTIs in any subsequent year. However, Mr. Gascon contends that an employer’s discretionary power to determine an employee’s incentive compensation cannot be exercised arbitrarily or capriciously. Mr. Gascon submits that he has never been provided with Newmont Goldcorp’s rationale explaining how it exercised its discretion to not grant him an LTI award in March 2020.

[42] Mr. Gascon submits that it is not seriously in issue that LTI awards were an integral part of his compensation, given that his LTI compensation accounted for over 50% of his total income from Goldcorp in 2017, 2018 and 2019 and that his “target” LTI compensation with Newmont Goldcorp was projected to be 80% of his base salary of $400,000.00.

[43] Mr. Gascon submits that his job performance throughout 2019 and early 2020 was unchanged from that in previous years in which he was awarded LTIs. Mr. Gascon contends that he also worked diligently and “around the clock”, between November 2019 and March 30, 2020 in both actively managing the Red Lake Mine and in facilitating the sale of the mine to Evolution which resulted in $375 million in cash proceeds and an enhanced stock value for Newmont Goldcorp.

[44] Mr. Gascon submits that it is inappropriate and unfair for Newmont Goldcorp to arbitrarily deny him, their most senior employee at the Red Lake Mine with responsibility for over 900 employees, this integral component of his total compensation.

[45] Mr. Gascon submits that if he had been granted an LTI award in March 2020, it would have fully vested as a result of Newmont Goldcorp’s termination of him without cause on March 30, 2020. Mr. Gascon contends that he is therefore entitled to damages equivalent to the value of the LTI award that he did not receive.

[46] Mr. Gascon’s position on this issue is premised on his submission that he continued to participate in Goldcorp’s LTI plan in March 2020 pursuant to the terms of the May 2019 Employment Agreement. This submission is, in turn, premised on what Mr. Gascon submits is considerable ambiguity in the terms of the May 2019 Employment Agreement.

[47] Mr. Gascon submits that it is not in issue that the May 2019 Employment Agreement governs the terms of his employment with Newmont Goldcorp. This agreement defines Goldcorp Inc. as the “Corporation”. Mr. Gascon notes that Clause 11.1 of the May 2019 Employment Agreement states that “from and after the Effective Date of this Agreement [April 18, 2019] the Executive [Mr. Gascon] is eligible to participate in the Corporation’s [ Goldcorp Inc.’s ] LTI program…”.

[48] Mr. Gascon further submits that under the Goldcorp LTI plan and Change of Control provisions he is entitled to immediate vesting of unvested LTIs if dismissed within one year of a change in control of Goldcorp. Thus, according to Mr. Gascon, he should have been awarded LTIs in March 2020 for the reasons set out above and these LTIs would have fully vested as a result of his without cause termination on March 30, 2020 because that termination occurred within one year of a change of control of Goldcorp.

[49] Mr. Gascon submits that if Newmont Goldcorp’s intention was that he was to be subject to a Newmont LTI and Change of Control plan it should have drafted the May 2019 Employment Agreement accordingly and unambiguously. Mr. Gascon contends that any ambiguity as to the meaning or intention of any of the terms of the May 2019 Employment Agreement, which was drafted by the employer, should be interpreted in his favour.

[50] Mr. Gascon submits that he is entitled to an award of exemplary damages because Newmont Goldcorp failed to conduct itself in good faith in its dealings with him from September 2019 until his termination on March 30, 2020.

[51] On September 17, 2019, when discussing in general terms the interest shown in the Red Lake Mine, Mr. Thornton told Mr. Gascon that he would be “going with” the Red Lake Mine when it was sold.

[52] In late November 2019, shortly after Newmont Goldcorp entered into the agreement to sell the Red Lake Mine to Evolution, Mr. Gascon received emails from two senior company executives thanking him for his service to the company. When Mr. Gascon questioned Mr. Thornton about these comments and his future with the company, Mr. Thornton reassured him that he still had a job and repeated that he would “go with” the Red Lake Mine, according to Mr. Gascon.

[53] Mr. Gascon submits that he continued to work diligently for his employer between November 2019 and March 2020, despite the uncertainty as to his ongoing employment with the company as a result of the comments of Mr. Thornton and other executives.

[54] Mr. Gascon submits that he realized that he was not going to be retained by Newmont Goldcorp or hired by Evolution in mid-March, when he reviewed a form letter intended for Newmont Goldcorp employees that would be continuing their employment with Evolution, and realized that his name was not on that list.

[55] Mr. Gascon submits that Mr. Thornton had a duty of candour and an obligation to be truthful and to act in good faith when he asked Mr. Thornton in November 2019 about the status of his employment with Newmont Goldcorp, given the anticipated sale of the Red Lake Mine to Evolution and the comments the two senior executives made to him.

[56] Mr. Gascon submits that the record on this motion allows this Court to infer that Mr. Thornton knew at that time that Mr. Gascon would not have a position with Newmont Goldcorp after the sale of the Red Lake Mine to Evolution and that he failed to advise him of this because Mr. Gascon’s continued service to the company was essential to the completion of the sale of the Red Lake Mine to Evolution. Mr. Gascon submits that Mr. Thornton’s statements suggesting that Mr. Gascon would “go with” the Red Lake Mine when it was sold to Evolution were simply untruthful and an attempt to mislead him. Mr. Thornton, at the time those comments were made, simply did not know if Evolution intended to retain Mr. Gascon subsequent to closing nor did he have any control over that decision, according to Mr. Gascon.

[57] Mr. Gascon submits that he was a key, senior manager who was integral to the successful completion of a $375 million asset sale. Without any regard to the importance of his role to the company at this crucial juncture, Mr. Thornton was misleading and untruthful, according to Mr. Gascon. Mr. Gascon seeks an award of exemplary damages in the amount of $60,000.00 as a result of the employer’s breach of duty of good faith.

[58] Finally, Mr. Gascon seeks an award of damages in the amount of $4,197.36 as compensation for moving expenses he incurred when forced to vacate his company owned residence after termination.

The Defendant’s Position

[59] Newmont Goldcorp submits that it is not in issue that the fundamental purpose of LTI awards is to incentivize employees to work and to remain with the company and share in the company’s future success. Newmont Goldcorp contends that the May 2019 Employment Agreement does not entitle Mr. Gascon to an LTI award in 2020, a fact which Newmont Goldcorp suggests is conceded by Mr. Gascon when he acknowledges that LTI awards are discretionary.

[60] Newmont Goldcorp submits that Mr. Gascon’s contention that Newmont Goldcorp exercised its discretion arbitrarily when it declined to grant him an LTI award in 2020 is without foundation. Simply put, Newmont Goldcorp did not intend to retain Mr. Gascon after the Red Lake Mine was sold to Evolution on March 31, 2020. The company therefore exercised its discretion and made a reasonable and logical business decision not to grant him an LTI award pending closing, just as the company did with approximately 900 other employees who were not retained.

[61] Newmont Goldcorp does not dispute the suggestion that employers cannot arbitrarily decline to award employees discretionary or “bonus” compensation. However, Newmont Goldcorp submits that each case turns on its own facts. Cases addressing past, performance-based compensation must be distinguished from cases concerning future, retention, incentive-based compensation, according to Newmont Goldcorp.

[62] Newmont Goldcorp submits that the factual background establishes that there was nothing arbitrary or capricious about Newmont Goldcorp’s exercise of discretion to not award Mr. Gascon incentive-based compensation in March 2020.

[63] Newmont Goldcorp contends that the Red Lake Mine employees, including Mr. Gascon, were made aware as early as December 2019 that Evolution would be taking the employees of the Red Lake Mine, that Newmont Goldcorp did not intend to retain the Red Lake Mine employees and that Newmont Goldcorp would not be granting any Red Lake Mine employees RSUs in 2020.

[64] Newmont Goldcorp submits that Mr. Thornton’s representations to Mr. Gascon, including that he would be “going with” the Red Lake Mine and the statements contained in the March 2020 emails were not intended to be misleading. They simply reflected Mr. Thornton’s reasonable belief that Evolution would retain Mr. Gascon after it became the owner of the Red Lake Mine, according to Newmont Goldcorp.

[65] Newmont Goldcorp submits that it was only on March 24, 2020 that it learned that Evolution would not be hiring Mr. Gascon. As Newmont Goldcorp had no comparable role for Mr. Gascon, it provided him with notice that his employment with the company would be terminated without cause on March 31, 2020. It logically follows that it would be perverse to award Mr. Gascon or any other Red Lake Mine employee an LTI in these circumstances, according to Newmont Goldcorp.

[66] Newmont Goldcorp submits that the language of the May 2019 Employment Agreement clearly stipulates that Mr. Gascon has no entitlement to a 2020 LTI award:

11.5 The Executive acknowledges …that an [LTI] grant is conditional on the approval of the Board.

11.6 The Executive acknowledges…that an [LTI] grant is not guaranteed and that a grant received in one year does not guarantee receipt of a grant in any subsequent year.

[67] Newmont Goldcorp submits that the law is clear that the terms of an incentive plan’s eligibility criteria and formula for calculating a bonus are relevant to the inquiry into what benefits the employee would have been entitled to as part of his or her compensation. In other words, the parties are bound by the express terms of the employment contract, which in this case does not guarantee Mr. Gascon an LTI award in 2020, according to Newmont Goldcorp.

[68] Mr. Gascon’s assertion that the notional LTI award he suggests Newmont Goldcorp ought to have granted him in March 2020 should vest in accordance with Goldcorp’s plans defies common sense, in Newmont Goldcorp’s submission.

[69] Newmont Goldcorp candidly acknowledges that it simply does not know why Mr. Gascon’s May 2019 Employment Agreement has Goldcorp Inc. described as the Corporation/employer. The defendant further concedes that there is no evidence the agreement was in fact assigned to NMC, as contemplated in the recitals.

[70] However, Newmont Goldcorp notes the following in relation to this contract:

1. Clause 33.1 stipulates that notice to the “Corporation” is to be given to Newmont Goldcorp;
2. Clause 2.1 states that Newmont Goldcorp is to assume granted and unvested Goldcorp RSUs;
3. Clause 2.2 states that the “Corporation” will assume granted and unvested Goldcorp PSUs; and
4. Clause 11.4 states that LTIs awards are governed by the terms of the respective award grant agreement…at the time the LTIs are granted.

[71] Newmont Goldcorp submits that it follows that any LTI award granted to Mr. Gascon in 2020 would be governed by Newmont Goldcorp’s LTI plan and not Goldcorp’s. Newmont Goldcorp contends that Mr. Gascon essentially acknowledged this fact when he conceded, on cross-examination, that the Goldcorp shares he had previously received pursuant to Goldcorp’s LTI plan were exchanged for Newmont shares in 2019 when Newmont acquired Goldcorp.

[72] Newmont Goldcorp submits that even if Mr. Gascon successfully establishes his entitlement to a notional LTI award, it would be subject to pro-rata vesting pursuant to the Newmont Goldcorp LTI plan such that it would have a value of approximately $9,000.00 as of the date of his termination.

[73] Newmont Goldcorp submits that Mr. Gascon’s claim for damages to compensate him for expenses incurred when he was required to move out of his company owned residence is without merit. Clause 17 of the May 2019 Employment Agreement establishes Mr. Gascon’s entitlements upon termination without cause and compensation for moving expenses upon termination without cause is not included, according to Newmont Goldcorp.

[74] Newmont Goldcorp contends that Mr. Gascon is not entitled to an award of moral/exemplary damages due to the manner in which he was terminated. Newmont Goldcorp submits that Mr. Gascon, as a seasoned mining professional, would have known that Mr. Thornton had no control over whether he was going to “go with” the Red Lake Mine upon its sale to Evolution.

[75] Newmont Goldcorp further submits that any uncertainty in Mr. Gascon’s mind about his future with the company would have been dispelled upon his receipt of the two emails in November 2019 wherein two senior Newmont Goldcorp executives thanked him for his service and “wished him well” in the future.

[76] Newmont Goldcorp submits that the facts do not support the suggestion that it breached its duty of good faith and fair dealing when it terminated Mr. Gascon on March 30, 2020 or in the period of time leading up to that termination.

Discussion

Appropriateness of Summary Judgment

[77] Rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) requires a court to grant summary judgment if,

(a) The court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) The parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[78] The proper approach to a motion for summary judgment was set out in Hryniak v. Mauldin, 2014 SCC 7, at para. 66 and concisely summarized by the Ontario Court of Appeal in Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98 at para. 24:

(1) First, the motion judge should determine if there is a genuine issue requiring a trial based only on the evidence before him or her, without using the enhanced fact-finding powers under Rule 20.04(2.1);

(2) Second, if there appears to be a genuine issue requiring a trial, the motion judge should determine if the need for a trial can be avoided by using the enhanced powers under Rule 20.04(2.1) which allows the motion judge to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. If necessary, under Rule 20.04(2.2) the motion judge may order that oral evidence be presented by one or more parties.

[79] The evidentiary obligation on a summary judgment motion is well established. Each side must “put its best foot forward”. The motion judge is entitled to presume that the evidentiary record is complete and there will be nothing further if the issue were to go to trial. Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292 at para. 54.

[80] In general terms, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. A fair and just determination will result when the record and process allows the judge to make the necessary findings of fact and apply the law to the facts.

[81] A process that does not give a judge confidence in his conclusions cannot be a proportionate way to resolve a dispute. The standard for fairness is whether the summary judgment process gives the judge confidence that he or she can find the necessary facts and apply the relevant legal principles in order to resolve the dispute.

[82] Mr. Gascon, the moving party on this summary judgment motion, submits that he has adduced all the evidence he intends to rely on at trial in his affidavit evidence on this motion. He urges the court to determine all issues by way of summary judgment.

[83] Newmont Goldcorp, citing Meridian Credit Union Limited v. Baig, 2016 ONCA 150, at para, 17, submits that on a motion for summary judgment, the Court is permitted to dismiss an action, even in the absence of a cross-motion requesting such relief. Newmont Goldcorp contends that there is no merit to Mr. Gascon’s claims and requests that the action be dismissed on this motion.

[84] Having considered the evidence and the submissions of the parties, and after much consideration, I have concluded that there is a genuine issue requiring a trial on Issue #1 - Is Mr. Gascon entitled to damages in lieu of a notional LTI award in March 2020 and, if so, in what amount. I have further concluded, in regard to Issue #1, that it is in the interests of justice that the powers provided by Rule 20.04(2.1) be exercised with the benefit of oral evidence to be presented at a mini-trial, as provided for in Rule 20.03(2.2).

[85] In my view, there is no genuine issue requiring a trial on the following issues:

Issue #2 - If it is determined that Mr. Gascon is entitled to a notional LTI award as of March 1, 2020, would such award have vested immediately upon Mr. Gascon’s termination without cause on March 31, 2020 or would it have been subject to a pro-rata vesting.

Issue #3 - Is Mr. Gascon entitled to moral or exemplary damages due to the manner of his termination and/or because of the defendant’s conduct in the period of time prior to his termination; and

Issue #4 - Is Mr. Gascon entitled to damages to compensate him for expenses incurred in moving out of the company owned home following termination.

[86] My reasons for these conclusions are as follows.

Issue #1 – Mr. Gascon’s Claim for Damages in lieu of a Notional LTI Award in March 2020

[87] It is clear from the evidence, in particular the terms of the May 2019 Employment Agreement, that the granting of LTI awards, comprised of RSUs and PSUs, is discretionary and that the receipt of an LTI award in one year does not guarantee the receipt of an LTI award in any subsequent year.

[88] Newmont Goldcorp does not dispute that the law requires an employer to exercise its discretion in a fair, reasonable, and non-arbitrary manner when awarding discretionary compensation. Newmont Goldcorp suggests that it met this standard in exercising its discretion to not award Mr. Gascon an LTI award in March 2020 because, simply put, Mr. Gascon was not being retained by the corporation after the Red Lake Mine was sold to Evolution on March 31, 2020.

[89] This, in and of itself, is suggested by the defendant to be a reasonable and non-arbitrary basis for Newmont Goldcorp to have declined to grant an LTI award to Mr. Gascon one month earlier. Mr. Thornton’s affidavit evidence provides no additional information as to the reasoning behind Newmont Goldcorp’s decision not to grant Mr. Gascon an LTI award in March 2020.

[90] However, as noted by Wilton-Siegel J. in Chann v. RBC Dominion Securities Inc., at para. 79, the fact that the decision to terminate the employee’s employment had been made “did not remove the need to approach the process of decision-making in the same manner as in past years. The [employee] was contractually entitled to have his remuneration determined on the same basis as in prior years and for other employees in the same year”.

[91] As this decision explains, Mr. Gascon was contractually entitled to have Newmont Goldcorp consider an LTI award in his favour at the usual time (the beginning of March according to Mr. Thornton) using the usual criteria that were applied to all other employees. It follows that Mr. Gascon may have been contractually entitled, despite the wording of the May 2019 Employment Agreement and his imminent termination, to an LTI award from Newmont Goldcorp in March 2020.

[92] There is no evidence in the record before me as to the criteria used by Newmont Goldcorp to determine this form of compensation in years past or in the subject year for employees who did in fact receive an LTI award. These criteria may or may not include consideration of the probability that Mr. Gascon would cease to be an employee in the near future, for whatever reason. Newmont Goldcorp acknowledged at the hearing of this motion that the LTI award criteria did in fact include some consideration of an employee’s performance over the previous year. To what extent is unknown.

[93] The fact that Mr. Gascon’s receipt of the benefit of an LTI award granted in March 2020 is dependent on his remaining an employee until vesting occurs in accordance with the plan may result in him receiving only a small portion of the award, but it does not impact his entitlement to the award itself.

[94] Mr. Gascon notes that the record adduced by Newmont Goldcorp on this motion is thin and devoid of any evidence as to the rationale behind its decision not to grant him an LTI award in March 2020, but for the fact that he was not going to be retained by Newmont Goldcorp after the sale of the Red Lake Mine. Mr. Gascon submits that this is a deliberate, strategic decision by Newmont Goldcorp, contrary to the evidentiary obligation on a party in a summary judgment motion to “lead trump or risk losing”.

[95] Mr. Gascon urges the Court to find that Newmont Goldcorp, on the basis of the record before me, acted arbitrarily and capriciously when it exercised its discretion to not grant him an LTI award in March 2020. Mr. Gascon submits that this Court should find that he was entitled to an LTI award from Newmont Goldcorp in March 2020 and award him damages in lieu thereof.

[96] In addressing the quantum of damages in lieu of a notional March 2020 LTI award, Mr. Gascon notes that he received LTI awards in the amounts of $428,000, $439,000 and $497,000 in the years 2017, 2018 and 2019 respectively, the average of these three figures being $455,000. Mr. Gascon submits that he is entitled to an award of damages equivalent to the average of these three previous LTI awards.

[97] However, the LTI awards that Mr. Gascon received in 2017, 2018 and 2019 were Goldcorp awards. If it is determined that Mr. Gascon is entitled to an LTI award in March 2020, it would be a Newmont Goldcorp LTI award. To award damages in lieu of a Newmont Goldcorp LTI award simply based on the average of previous Goldcorp LTI awards is, in my opinion, unfairly arbitrary. Further evidence is required on the issue of the quantum of a notional March 2020 LTI award.

[98] For these reasons, I have concluded that the issues of Mr. Gascon’s entitlement to an LTI award in March 2020 and, if entitled, the quantum, require oral evidence in a mini-trial, as provided for in Rule 20.04(2.1) and (2.2).

[99] In my view, it is simply not possible to reach a fair and just determination on these issues without further and better evidence directed to the questions of entitlement to, and the quantum of, a notional LTI award. As tempting as it may be to decide the issues on the record before me as it stands, that would be, in my opinion, unfair to the parties, arbitrary and contrary to the interests of justice.

Issue #2 – If Mr. Gascon was entitled to a LTI award from Newmont Goldcorp in March 2020, when would it have vested?

[100] Mr. Gascon’s position on this issue was clearly set out in both his written and oral submissions – if he had received an LTI award from Newmont Goldcorp in March 2020 it would have fully vested upon his termination on March 30, 2020.

[101] Mr. Gascon interprets the May 2019 Employment Agreement to state that he continued to participate in the Goldcorp LTI plan after Newmont Goldcorp acquired Goldcorp. Mr. Gascon further submits that pursuant to the change of control provisions in the Goldcorp LTI plan, upon his March 30, 2020 termination without cause, he became entitled to an immediate vesting of unvested LTI’s because he was terminated within one year of April 2019 change of control of Goldcorp.

[102] Mr. Gascon submits that the relevant terms of the May 2019 Employment Agreement are ambiguous and that this ambiguity should be construed in his favour.

[103] Newmont Goldcorp submits that Mr. Gascon’s assertion that a March 2020 notional LTI award from Newmont Goldcorp is governed by the Goldcorp LTI plan “defies common sense”. Newmont Goldcorp submits that Goldcorp shares ceased trading when it was acquired by NMC on April 18, 2019 and that Goldcorp’s LTI plan was cancelled and ceased to exist.

[104] Newmont Goldcorp submits that it is simply not possible for the vesting of a Newmont Goldcorp March 2020 LTI award to be governed by the cancelled Goldcorp LTI plan. Any LTI award granted by Newmont must be governed by the applicable Newmont Goldcorp plan and subject to pro-rata vesting in the event of a without cause termination, according to Newmont Goldcorp.

[105] I conclude that there is no genuine issue requiring a trial with respect to this portion of Mr. Gascon’s claim. It is a matter of contractual interpretation.

[106] While I accept the submission that the May 2019 Employment Agreement was poorly drafted and is ambiguous, there can be no dispute that it was the intention and understanding of both parties that Mr. Gascon became an employee of Newmont Goldcorp upon NMC’s acquisition of Goldcorp in April 2019 and that the May 2019 Employment Agreement governs that employment relationship.

[107] It was further understood and intended that the May 2019 Employment Agreement, drafted with Goldcorp Inc. as a party, would be assigned to Newmont Goldcorp. This is expressly set out in the recitals to the agreement.

[108] It follows that it must have been the intention of the parties that the LTI program referred to in the May 2019 Employment Agreement was the Newmont Goldcorp LTI program and not the Goldcorp LTI program.

[109] The long-term compensation plan is tied to the value of a public share price. Goldcorp shares ceased trading upon NMC’s acquisition of Goldcorp in April 2019. Goldcorp’s LTI plans were cancelled, and the May 2019 Employment Agreement expressly provided for Newmont Goldcorp to assume Goldcorp unvested RSUs and PSUs. The Goldcorp RSUs were to be converted to Newmont Goldcorp RSUs and the Goldcorp PSUs were to be adjusted to track the Newmont Goldcorp stock price.

[110] The interpretation of the May 2019 Employment Agreement must be consistent with the intention of the parties. For the reasons stated above, it simply could not have been the intention of the parties that an LTI award granted to Mr. Gascon by Newmont Goldcorp in March 2020 would be governed by the Goldcorp LTI plan such that this unvested LTI award vested immediately upon Mr. Gascon’s March 30, 2020 without cause termination due to a change of control of Goldcorp in April 2019.

[111] There is no genuine issue requiring a trial on this claim by Mr. Gascon. If it is determined that he is entitled to a notional LTI award in March 2020, I find that such award would be subject to the pro-rata vesting provisions contained in the Newmont Goldcorp LTI plan and that the award would not have vested immediately as a result of his March 30, 2020 termination.

Issue #3 – Is Mr. Gascon entitled to moral or exemplary damages due to the manner of his termination or because of the defendant’s conduct in the period of time prior to his termination?

[112] In his Statement of Claim, Mr. Gascon seeks $250,000.00 in moral and exemplary damages from Newmont Goldcorp on the basis that the defendant failed to act in good faith toward him, a fiduciary employee, in the period of time prior to his March 30, 2020 termination and in the manner of his termination. At the hearing of this motion, Mr. Gascon submitted that an award of moral or exemplary damages in the amount of $60,000.00 was appropriate.

[113] The defendant submits that this claim is without merit.

[114] In Doyle v. Zochem Inc., 2017 ONCA 130, the Ontario Court of Appeal, at paragraph 12, citing Wallace v. United Grain Growers Ltd., reiterated that there is an obligation of good faith in the manner of dismissal of an employee and that damages are available where an employer engages in conduct that is “unfair or is in bad faith by being…untruthful, misleading or unduly insensitive”. At para. 13 of Doyle the Court confirmed that the time frame to be considered is not “limited to the moment of dismissal. Pre and post termination conduct may be considered in an award for moral damages, so long as it is a ‘component of the manner of dismissal’”.

[115] In Doyle, at para. 23, the Court emphasized that the question of moral damages is a fact specific exercise. The Court noted, at para. 23, that the trial judge had found that the employer held out to the employee a promise that she would be given a chance to improve her job performance and told her that her job was not in jeopardy even though the decision to terminate her had already been made. The Court found this to be “evidence of untruthful, misleading or unduly insensitive conduct” justifying the trial judge’s award of moral damages.

[116] In Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, at para. 40, the Court noted “a measure of uncertainty” in the jurisprudence as to the impact of the common law duty of good faith and honest performance of contracts on employment law generally. The Court therefore reaffirmed two important principles:

1. The duty of honest performance - meaning simply that the parties must not lie to or otherwise knowingly mislead their counterpart about matters directly linked to the performance of the contract - is applicable to employment contracts; and
2. When an employee alleges a breach of the duty to exercise good faith in the manner of dismissal, courts may examine a period of conduct that is not confined to the exact moment of termination itself.

[117] In my opinion, the pre-termination conduct of Newmont Goldcorp from the fall of 2019 to the date of Mr. Gascon’s termination on March 30, 2020 is a component of his dismissal and is relevant to the issue of whether Mr. Gascon is entitled to an award of exemplary damages and, if so, in what amount.

[118] In the late summer and early fall of 2019, Mr. Thornton told Mr. Gascon that Newmont Goldcorp was actively trying to sell the Red Lake Mine and that Mr. Gascon would be “going with” the mine when it was sold. Mr. Gascon, General Manager of the Red Lake Mine, with approximately 30 years’ experience in the mining industry, understood this to mean that Mr. Thornton anticipated that the purchaser of the mine would retain Mr. Gascon after the transaction was completed. There was no discussion about what might happen with Mr. Gascon’s employment with Newmont Goldcorp if the purchaser of the Red Lake Mine chose not to employ Mr. Gascon.

[119] While Mr. Thornton did not expressly advise Mr. Gascon that this was nothing more than an assumption on his part, I find that Mr. Gascon understood that Mr. Thornton had no ability or authority to ensure a purchaser of the mine would hire him concurrently with its acquisition of the Red Lake Mine.

[120] In November 2019, Mr. Thornton told Mr. Gascon that the Red Lake Mine had been sold to Evolution and that the deal was expected to close on March 31, 2020. Shortly thereafter, Mr. Gascon received two emails from Newmont Goldcorp executives, essentially thanking him for his service and wishing him well in the future. Mr. Gascon understood these emails to mean that his employment with Newmont Goldcorp would, in all likelihood, end upon the sale of the Red Lake Mine to Evolution.

[121] Therefore, as of late November 2019, Mr. Gascon understood that Newmont Goldcorp anticipated that Evolution would hire him after the completion of its purchase of the Red Lake Mine but that Newmont had no control over this. Mr. Gascon also understood that his employment with Newmont Goldcorp was likely to terminate upon the sale of the Red Lake Mine to Evolution. However, this had not been clearly expressed to him by Mr. Thornton.

[122] Mr. Gascon chose to confront Mr. Thornton about the emails he had received from other Newmont Goldcorp executives and specifically asked him if he still had a job with Newmont Goldcorp. According to Mr. Gascon, he was told that he did and was again told that he would “go with” the mine when sold.

[123] However, for approximately four months thereafter, Mr. Gascon was left to speculate about his future employment with Newmont Goldcorp while working diligently to facilitate the sale of the Red Lake Mine to Evolution. Mr. Thornton’s repeated suggestions to Mr. Gascon that he would “go with” the mine appear to me to have been clumsy attempts to placate and/or mislead Mr. Gascon, a senior employee who was essential to the successful completion of the sale to Evolution.

[124] Mr. Thornton deposes that it was Newmont Goldcorp’s “understanding” that Evolution intended to retain Mr. Gascon as the General Manager of the Red Lake Mine and that it would “likely be making him an offer of employment”. He further deposes that he “made it clear to Mr. Gascon that he would have to await further information”.

[125] What Mr. Thornton never made clear to Mr. Gascon was Newmont Goldcorp’s intention regarding his future employment with Newmont Goldcorp if Evolution did not retain Mr. Gascon.

[126] I am unable to conclude exactly when Mr. Thornton, and/or Newmont Goldcorp, made the further decision that Mr. Gascon would be terminated if Evolution did not hire him. However, Mr. Thornton has repeatedly emphasized that Mr. Gascon was not granted an LTI award at the usual time (early March) because Newmont Goldcorp was not retaining him after the Red Lake Mine was sold to Evolution. That being the case, Newmont Goldcorp - and Mr. Thornton - must have known well prior to early March 2020 that they would be terminating Mr. Gascon if Evolution did not hire him.

[127] In the March 2020 email exchange between Mr. Gascon and Mr. Thornton, Mr. Gascon’s focus is on the issue of his compensation, specifically the LTI award he had anticipated receiving in early March 2020. Mr. Gascon does not ask Mr. Thornton about his future employment with Newmont Goldcorp. From this, I infer that Mr. Gascon was likely resigned to the probability that his employment with Newmont Goldcorp would not continue after the sale of the Red Lake Mine to Evolution.

[128] However, at no time between November 2019 and March 30, 2020 did Mr. Thornton tell Mr. Gascon that he would not have a job with Newmont Goldcorp if Evolution did not hire him. Mr. Gascon was left to speculate and draw his own conclusions about his future employment.

[129] Mr. Thornton became aware of Evolution’s decision not to retain Mr. Gascon on March 24, 2020. Mr. Gascon’s termination followed on March 30, 2020. There is no evidence that the manner of termination, or the defendant’s conduct between November 2019 and March 30, 2020, caused Mr. Gascon any mental distress beyond that normally accompanying a dismissal.

[130] I am cognizant of the fact that Mr. Rhodes, Senior Vice President of Strategic Development for the defendant, “put in a good word” for Mr. Gascon with Evolution’s CEO in November 2019. I also recognize that various documents pertaining to the sale and transition of the mine to Evolution, circulated to all 900 employees of the Red Lake Mine in late 2019 and early 2020, contained information that suggested to Mr. Gascon that he would not be receiving his 2020 LTI compensation. I also accept, as stated by Mr. Thornton in his affidavit and as emphasized by Newmont Goldcorp at the hearing of this motion, that Mr. Gascon was, during the relevant period of time, being paid $400,000/year to “do his job”.

[131] However, Mr. Thornton knew as early as November 2019 that Mr. Gascon, Newmont Goldcorp’s most senior employee at the Red Lake Mine and an instrumental party in the completion of the $375 million sale of the mine, was concerned about his future employment. Mr. Thornton was obviously not able to provide Mr. Gascon with any guarantees. The duty of honest performance – meaning that parties must not knowingly mislead their counterpart about matters directly linked to the performance of the contract – simply required Mr. Thornton to tell Mr. Gascon the truth as it was known to Mr. Thornton in November 2019 and as the sale transaction proceeded into 2020.

[132] As noted above, Mr. Thornton must have known as early as February 2020 that Newmont Goldcorp would be terminating Mr. Gascon upon the sale of the Red Lake Mine if Evolution did not hire him because he cited this as the rationale for Mr. Gascon not receiving an LTI award in March 2020. Once again, as of the date of his March 16, 2020 email to Mr. Gascon, Mr. Thornton may not have known for a certainty that Evolution was not going to hire Mr. Gascon. However, he did know that Newmont Goldcorp would not be retaining him if Evolution did not hire him.

[133] Mr. Thornton never advised Mr. Gascon of this fact. In his March 16, 2020 email to Mr. Gascon, Mr. Thornton again misled Mr. Gascon. He implied that Evolution would be hiring him and asked for Mr. Gascon’s “cooperation in continuing to perform [his] job duties on a business as usual basis until Closing”. Surely the contractual duty of honesty and good faith in the employment context demands more of an employer in these circumstances.

[134] Mr. Gascon deposes that he “sought numerous opportunities to have a frank discussion with representatives of the Defendant about the future of my employment and was denied repeatedly”. On the whole of the evidence, I accept this statement as true and accurate. One can speculate as to Mr. Thornton’s reasons for his conduct in his interactions with Mr. Gascon. However, in my view they are irrelevant.

[135] I find that Mr. Thornton’s conduct toward Mr. Gascon in the four months prior to his without cause termination on March 30, 2020 was untruthful, misleading and unduly insensitive. This finding supports an award of moral or exemplary damages in favour of the plaintiff in the amount of $50,000.00 and I so order.

Issue #4 – Mr. Gascon’s claim for moving expenses

[136] During his employment with Newmont Goldcorp, Mr. Gascon resided in company-owned housing in Red Lake. As a result of his termination on March 30, 2020, he was required to vacate this residence within two months because the home became the property of Evolution on March 31, 2020.

[137] Mr. Gascon incurred $4,197.00 in moving expenses when relocating from the company owned residence and he seeks damages in this amount.

[138] Article 17 of the May 2019 Employment Agreement establishes Mr. Gascon’s entitlements upon termination without cause. Article 17 does not require that Newmont Goldcorp compensate Mr. Gascon for moving expenses upon termination without cause. Article 34.1 of the May 2019 Employment Agreement states that the agreement constitutes the entire agreement between the parties.

[139] There is no basis to Mr. Gascon’s claim for damages to compensate him for expenses incurred in moving out of company housing after termination. This claim is dismissed.

Summary

[140] I have addressed Issues #2, #3 and #4 on this summary judgment motion. I have directed, pursuant to Rules 20.04(2.1) and (2.2) that a mini-trial be conducted on Issue #1. I order that the plaintiff and Mr. Thornton provide oral evidence at the mini-trial which is to be conducted before me virtually as scheduled by the Trial Coordinator in consultation with counsel. I would anticipate that two days would be required.

[141] Costs of this motion are reserved to the mini-trial unless otherwise resolved by the parties. If counsel deem it necessary, I may be spoken to in regard to the conduct of the mini-trial.

The Hon. Justice J. Fregeau Released: April 29, 2022