COURT FILE NO.: CV-18-00595946-00CL DATE: 20240102 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CRAIG BOYER, Plaintiff AND: CALLIDUS CAPITAL CORPORATION, Defendant

BEFORE: Cavanagh J.

COUNSEL: Peter H. Griffin and Jonathan McDaniel, counsel for the Plaintiff David C. Moore, counsel for the Defendant

HEARD: October 5, 2023

ENDORSEMENT

Introduction

[1] The Plaintiff, Craig Boyer, was formerly employed by Callidus Capital Corporation (“Callidus”). Mr. Boyer left his employment with Callidus on September 6, 2016.

[2] Mr. Boyer brings this motion for summary judgment against Callidus for amounts he claims in relation to his employment with Callidus and the termination thereof.

[3] For the following reasons, I grant Mr. Boyer’s motion, in part.

Background Facts

Mr. Boyer’s employment at Callidus

[4] Mr. Boyer joined Callidus as a Vice President of underwriting and portfolio management in July 2009. Callidus was a lender to distressed businesses in Canada and the United States which was private at that time, before its initial public offering in 2014. Mr. Boyer remained in the same role until 2016.

[5] Mr. Boyer’s employment agreement was oral.

[6] Mr. Boyer first reported to Sam Fleiser who was Callidus’ then Chief Executive Officer. After Mr. Fleiser left Callidus in 2012 or 2013, Mr. Boyer reported directly to David Reese who joined Callidus as its Chief Operating Officer in 2011.

[7] Mr. Boyer was responsible for underwriting and portfolio management.

Mr. Boyer’s compensation at Callidus

[8] In or around 2014, Callidus introduced a deferred bonus program and stock option plan for certain Callidus employees. Mr. Boyer participated in both.

[9] Under the stock option plan, Callidus granted periodic options to certain employees, typically at year end.

[10] Mr. Boyer was entitled to four weeks’ vacation per year.

Mr. Boyer’s departure as an employee of Callidus

[11] In June or July 2015, Mr. Boyer gave Mr. Reese notice of his intention to retire at the end of 2016. His evidence is that he chose to give notice of his retirement at that time because he was tired, and was no longer comfortable with the direction of Callidus was taking, and he was suffering from a number of increasingly difficult health problems related to diabetes including worsening vision loss, heart problems, and chronic kidney disease.

[12] Mr. Boyer’s evidence is that by mid-2016, well in advance of his scheduled departure, Callidus’ management and management of its parent company, Catalyst, engaged in abusive conduct which created a poisoned work environment and included:

a. Unrelenting criticism and verbal abuse, allegations that Mr. Boyer cannot be trusted, and threats by Callidus’ CEO, Mr. Glassman, against him in the presence of others at Callidus.

b. A meeting in April 2016 at a law firm at which a Catalyst Managing Director physically attacked Mr. Reese in the presence of Mr. Riley. Mr. Glassman never acknowledged the assault to him and the Managing Director never acknowledged or apologized for this conduct.

[13] In July 2016, Mr. Reese advised Mr. Boyer that he should deal with Jim Riley (a member of Callidus’ Credit Committee and the Managing Director of Callidus’ parent company) going forward.

[14] By either the end of July 2016 (according to Mr. Boyer’s evidence) or September 2016 (according to Mr. Riley’s evidence), all of Mr. Boyer’s portfolio accounts had been transferred to other portfolio managers. Mr. Boyer’s evidence is that it was made clear to him that Callidus did not need him to participate further in files which had been transferred away from him. He understood that this was because Mr. Glassman had made it clear that once a portfolio account was transferred to a new employee, that employee assumed all responsibility for that file.

[15] In August 2016, Mr. Boyer informed Mr. Riley that he would take the balance of his approximately 24 weeks of accumulated vacation beginning in August 2016. Mr. Boyer’s evidence is that Mr. Riley responded that he could take two weeks vacation in August and return to work. Mr. Boyer’s evidence is that Mr. Riley expressed to him that he was concerned about how Mr. Boyer taking longer vacation would affect his loan portfolio, as Mr. Riley was unaware that the transfer of all of his portfolio accounts was complete.

[16] Mr. Boyer’s evidence is that he met with Mr. Riley and confirmed that all of his files had been transferred. Mr. Riley propose that he take two weeks off at the beginning of August and return. Mr. Boyer explained that that would not work and responded that he could take the last two weeks of August off and continue as he had proposed. Mr. Boyer’s evidence is that Mr. Riley said he would get back to him on this, but never did.

[17] Mr. Boyer took the last two weeks of August off as vacation.

[18] Callidus announced Mr. Boyer’s departure in an August 11, 2016 press release. The press release noted: “Craig Boyer, a Vice President of the Company, has elected to retire by December 31, 2016. We wish Craig well in his retirement.”

[19] Mr. Boyer delivered a letter to Callidus dated September 6, 2016 advising that he will be departing Callidus that day. In his letter, Mr. Boyer gave the following reasons for his decision:

a. His decision to retire resulted from the increasingly toxic work environment caused by others in the overall organization, the features of which included physical abuse against Mr. Riley and verbal and written abuse on a constant basis.

b. Mr. Boyer wanted to style his departure as a resignation in the best interests of the organization, however those directing the business outside of Mr. Riley have:

i. refused to honour Callidus’ obligation to pay Mr. Riley his accumulated vacation pay contrary to the provisions of the Employment Standards Act; and

ii. failed to put in place the necessary agreements to fairly compensate Mr. Boyer on his departure for those elements of deferred compensation and unvested options (which were awarded with knowledge of his pending retirement) which is an essential component of his compensation.

c. Mr. Boyer transitioned his files to other managers in recognition of his pending retirement. Callidus encourage the transition to take place, such that there are no further duties for Mr. Boyer to perform, yet Callidus refuses to properly address his compensation.

d. The cumulative effect of Callidus’s repudiatory steps leads to his departure, as it leaves him no alternative.

Legal proceedings

[20] Mr. Boyer commenced this action by Statement of Claim issued on February 6, 2017. Callidus defended the action and counterclaimed for damages, alleging breaches of fiduciary duty related to accounts for three of Callidus’ clients.

[21] I first heard this motion for summary judgment on April 21, 2022 together with other motions brought by Mr. Boyer. In my decision released on June 23, 2022, I dismissed Mr. Boyer’s motion under s. 137.1 of the Courts of Justice Act. I decided that Mr. Boyer’s motion for summary judgment in the main action should be decided after a decision is made on his motion to dismiss or strike out the counterclaim under the Rules of Civil Procedure which was to be heard after the final disposition of his motion under s. 137.1 of the Courts of Justice Act.

[22] In Boyer v. Callidus Capital Corporation, 2023 ONCA 233, the Court of Appeal for Ontario allowed an appeal from my decision and made an order (i) dismissing Callidus’ counterclaim under s. 137.1 of the Courts of Justice Act, (ii) allowing an amendment to Mr. Boyer’s pleading, and (iii) returning Mr. Boyer’s motion for summary judgment to me for completion of the hearing.

[23] Mr. Boyer’s Amended Statement of Claim has not yet been filed (because the formal order of the Court of Appeal has not been taken out). Callidus’ proposed Amended Statement of Defence and Counterclaim has been served and is before the Court, as is Mr. Boyer’s proposed Amended Reply. The parties agree that this motion should be decided on the basis that these pleadings have been delivered.

Analysis

[24] Mr. Boyer moves for summary judgment on his claim.

[25] Rule 20.04 (2) of the Rules of Civil Procedure provides that the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[26] There will be no genuine issue requiring a trial where the motion judge can reach a fair and just determination on the merits of the summary judgment motion. That will be the case when the process: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expensive and less expensive means to achieve a just result. See Hryniak v. Mauldin, 2014 SCC 7, at para. 49.

Is there a genuine issue requiring a trial in relation to whether Mr. Boyer was constructively dismissed?

[27] Mr. Boyer submits that he was constructively dismissed and that, in relation to this question, there is no genuine issue requiring a trial.

[28] In Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, the Supreme Court of Canada addressed the conduct of an employer that amounts to constructive dismissal, at paras. 30 and 32-33:

When an employer’s conduct evinces an intention no longer to be bound by the employment contract, the employee has the choice of either accepting that conduct or changes made by the employer, or treating the conduct or changes as a repudiation of the contract by the employer and suing for wrongful dismissal.

Given that employment contracts are dynamic in comparison with commercial contracts, courts have properly taken a flexible approach in determining whether the employer’s conduct evinced an intention no longer to be bound by the contract. There are two branches of the tests that have emerged. Most often, the court must first identify an express or implied contract term that has been breached, and then determine whether that breach was sufficiently serious to constitute constructive dismissal: [citations omitted].

However, an employer’s conduct will also constitute constructive dismissal if it more generally shows that the employer intended not to be bound by the contract. In applying Farber, courts have held that an employee can be found to have been constructively dismissed without identifying a specific term that was breached if the employer’s treatment of the employee made continued employment intolerable: [citations omitted]. This approach is necessarily retrospective, as it requires consideration of the cumulative effect of past acts by the employer and the determination of whether those acts evinced an intention no longer to be bound by the contract.

[29] In Potter, at para. 60, the Court addressed the onus on the employee to prove that an act constitutes constructive dismissal:

The onus is on the employee to prove that an act constitutes constructive dismissal. The employee must prove on a balance of probabilities that the employer’s unilateral act breached the contract and that that breach substantially changed the essential terms of the contract. As I mentioned above, the evidence produced to establish that the breach was substantial must be assessed from the perspective of a reasonable person. The test is “whether, at the time the [breach occurred], a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed” (Farber, at para. 26).

[30] In support of his position that he was constructively dismissed, Mr. Boyer relies on the evidence that while he had announced his intention to retire at the end of 2016, all of his job responsibilities were removed by him by the end of July 2016. Mr. Boyer submits that this manner of effectively “deleting” an employee’s role constitutes constructive dismissal. In support of this submission, Mr. Boyer cites Maasland v City of Toronto, 2015 ONSC 7598 at paras. 27-28; aff’d Maasland v. Toronto (City), 2016 ONCA 551.

[31] In Maasland, the motion judge on a summary judgment motion, at paras. 23-27, held that the change to the plaintiff’s terms of employment resulting from a reorganization, without her consent, changed her role from an essentially operational one to a far more administrative one, and was a substantial change which, in reality, amounted to the deletion of her position. The motion judge concluded that the plaintiff had been constructively dismissed.

[32] In contrast to the facts in Maasland, Mr. Boyer agreed to the process involving the transfer of the accounts for which he was responsible in anticipation of his retirement. There is no evidence that Mr. Boyer complained that the transfer of responsibility was being done contrary to his wishes or faster than was permissible under his employment contract. Mr. Boyer states that the transfer of files within his portfolio was done with his full cooperation. Mr. Boyer says the process was complete by the end of July 2016. Mr. Riley says the transitioning process was substantially completed by September 2016.

[33] Mr. Boyer states in his affidavit that he agreed to participate in two examinations in legal proceedings on behalf of Callidus in the last few months of 2016, so he was not told to remain idle. The process for the transfer of accounts was done in the context of Mr. Boyer’s upcoming retirement and the transfer of responsibility for Mr. Boyer’s accounts, itself, was not a breach of Mr. Boyer’s employment contract.

[34] In this context, Mr. Boyer’s evidence does not support a finding that the effective transfer of responsibility for accounts within Mr. Boyer’s portfolio being accomplished by August or September 2016, several months earlier than his planned retirement date, was a breach of his employment contract, let alone a substantial breach. Mr. Boyer acknowledged that the transfer had to be done, and he cooperated in this process. The process needed to be completed before Mr. Boyer’s retirement, and could not be timed with precision to conclude when Mr. Boyer retired.

[35] When I consider Mr. Boyer’s evidence of the process by which, in the context of his announced retirement to take place at the end of December 2016, Mr. Boyer cooperatively and successfully transitioned the accounts in the portfolio for which he was responsible to other account managers by July, August, or September 2016, I conclude that a reasonable person in the position of Mr. Boyer would not have felt that the essential terms of his employment contract were being substantially changed.

[36] Mr. Boyer also submits that he was constructively dismissed because of conduct by Callidus involving unjustified criticism and vague and unfounded allegations against him and by Callidus creating a hostile and embarrassing work environment.

[37] Mr. Boyer’s evidence was that the abusive conduct of Callidus and Catalyst management included:

a. Unrelenting criticism and verbal abuse, allegations that he could not be trusted, and threats by Callidus’ CEO, Newton Glassman, against him in the presence of others at Callidus;

b. A meeting in April 2016 at a law firm at which a Catalyst Managing Director became extremely angry and physically attacked Mr. Reece, in the presence of Mr. Boyer and Mr. Riley and, for other parts of the meeting, Mr. Glassman.

[38] Mr. Boyer relies on evidence that a meeting in October or November 2015, Mr. Glassman claimed that he had been deceived about a loan in one of the accounts for which Mr. Boyer was responsible, the Gray Aqua loan, and asked Mr. Boyer, Mr. Reece and another attendee to “write a cheque” for the issues that had arisen. Mr. Glassman did not say that he held Mr. Boyer solely responsible for losses on the Gray Aqua loan. Mr. Reece told Mr. Boyer to ignore Mr. Glassman’s comment and his demand that he write a cheque.

[39] The Gray Aqua meeting was in 2015, many months before Mr. Boyer’s departure from Callidus, and, although the criticisms of Mr. Boyer and others by Mr. Glassman may have been unjustified, Mr. Boyer’s superior, Mr. Reese, supported him. This meeting and the criticisms at that meeting of Mr. Boyer and others by Mr. Glassman, as described in Mr. Boyer’s evidence, does not amount to a breach of Mr. Boyer’s employment contract that shows that Callidus did not intend to be bound by the contract of employment with Mr. Boyer.

[40] Mr. Boyer relies on evidence given about his performance review in December 2015. Mr. Boyer agreed that Mr. Glassman was complimentary of his performance but also “kind of, ugly”. He testified that Mr. Glassman said that Mr. Boyer had overrated himself in many areas of his self-evaluation by giving himself a ranking of five (on a scale of 0-5). Mr. Glassman commented that “no one is a five”, and said that Mr. Boyer was egotistical and arrogant. Mr. Boyer, on cross-examination, said that Mr. Glassman told him he could not be trusted. Mr. Boyer regarded Mr. Glassman’s comments about his self-evaluation rankings as “kind of silly”. Mr. Boyer agreed that after these comments, they sat down and completed Mr. Boyer’s performance review and that part was fine.

[41] Although Mr. Glassman’s language in relation to his criticisms of Mr. Boyer’s self-evaluations was harsh, the evidence about the performance review meeting as a whole does not show that Mr. Boyer regarded Mr. Glassman’s conduct at this meeting to have made his continued employment intolerable. A reasonable person in Mr. Boyer’s position would not have felt that the essential terms of his employment were substantially changed.

[42] Mr. Boyer also relies on evidence concerning a meeting at a law firm in April 2016 at which a Managing Director of Catalyst (Callidus’ parent company) physically attacked Mr. Reese following a discussion about the valuation methodology used for a loan to XTG. Mr. Boyer’s evidence is that Mr. Glassman (who was present for part of the meeting) never acknowledged the assault to him and the Managing Director never acknowledged or apologized for it. Mr. Boyer testified that the Catalyst Managing Director was not involved on a day to day basis with Callidus. The conduct of the Managing Director at the law firm meeting was not directed to Mr. Boyer. I conclude that this unfortunate incident that Mr. Boyer witnessed in April 2016 did not make Mr. Boyer’s continued employment at Callidus intolerable so as to amount to constructive dismissal.

[43] Mr. Boyer also relies on evidence given on his cross-examination when he was asked when he first notified Callidus that as far as he was concerned, there was a poisoned work environment at Callidus. He responded “I think Newton knew that I wasn’t impressed by his comment about killing me, that happened when Sam was there. For sure, they were aware that I wasn’t comfortable with the assault that took place with Reese and the non-apology apology that flowed. No one from Callidus ... or Callidus has come to me and said, ‘We’re sorry for what happened and what you witnessed’”.

[44] I presume that Mr. Boyer’s reference to “Sam” is to Sam Fleiser, Mr. Boyer’s superior at Callidus who left in 2012 or 2013, long before Mr. Boyer’s departure in September 2016. Mr. Boyer’s evidence of a statement by Mr. Glassman “about killing me” is not placed in any context that would allow me to assess it. Mr. Boyer did not refer to this statement in his affidavit evidence. In the absence of any context for this statement, I do not regard it as conduct that made Mr. Boyer’s continued employment at Callidus intolerable.

[45] Callidus denies in its Amended Statement of Defence and Counterclaim that Mr. Boyer was constructively dismissed and pleads that Mr. Boyer always intended to retire for personal reasons at the end of 2016. Callidus pleads that Mr. Boyer voluntarily resigned approximately three months early. In the alternative, Callidus pleads that Mr. Boyer’s conduct as described in its counterclaim justifies his dismissal for cause.

[46] Callidus accepts and acknowledges the decision of the Court of Appeal for Ontario that the counterclaim be dismissed.

[47] When I consider the evidence of Mr. Boyer, I conclude that that there is no genuine issue requiring a trial in relation to whether Mr. Boyer was constructively dismissed. Mr. Boyer has failed to prove that Callidus committed an act or engaged in conduct that amounts to constructive dismissal. When Mr. Boyer left Callidus on September 6, 2016, he retired.

[48] Given my conclusion that Mr. Boyer retired from his employment with Callidus on September 6, 2016, Mr. Boyer is not entitled to additional damages for wrongful dismissal based on the claimed period of reasonable notice of 15 months.

Is there a genuine issue requiring a trial in relation to Mr. Boyer’s claim for damages for vacation pay?

[49] Mr. Boyer claims payment for accumulated and unused vacation equivalent to twenty-four weeks’ salary (30 weeks earned vacation to the end of 2016 less 6 weeks taken).

[50] Under his employment contract, Mr. Boyer was entitled to four weeks of vacation time per year.

[51] Mr. Boyer’s evidence is that Callidus allowed him to roll his unused vacation entitlement forwarded to subsequent years if he did not use it in any given year and he did so. His evidence is that Callidus was aware that he did not use up his vacation entitlement due to his heavy workload. His evidence is that Callidus did not have a “use it or lose it” vacation time policy and no such policy was ever communicated to him.

[52] In its Amended Statement of Defence and Counterclaim Callidus pleads that, with respect to vacation pay, it does not permit its employees to carry over unused vacation from year to year without express written approval, which was not requested by or given to Mr. Boyer. Callidus pleads that Mr. Boyer took his vacation time and, to the extent he did not use all of his vacation days in any given year, he received compensation for the unused vacation days.

[53] Mr. Boyer’s evidence is that he took six weeks of vacation time while employed at Callidus. Mr. Boyer’s evidence is that by the end of 2016, he had accumulated 24 weeks of unused vacation time. Mr. Boyer gives evidence that he recalls the vacation time he took at Callidus and he summarizes this time in his second affidavit. This summary includes two weeks in 2013 or 2014, two weeks in 2015, and two weeks in August 2016. I accept Mr. Boyer’s evidence with respect to the weeks of vacation he took.

[54] Mr. Reese’s evidence is that Mr. Boyer was a very busy employee in a busy place. He acknowledged that Mr. Boyer worked exceptionally hard and took very few days off. Mr. Reese’s evidence is that it was entirely plausible that Mr. Boyer did not use his vacation days and he was not surprised by the number of weeks of vacation time that Mr. Boyer has asserted he accumulated in this action.

[55] Mr. Reese was asked on his examination whether there was a policy at Callidus that vacation could not be carried over. He responded that he thinks management of Callidus tried to put a policy in place that was driven by the fact that Mr. Boyer had a very large bank of unused holidays and management of Callidus did not want that going forward. Mr. Reese testified that, typically, people would use most of their holidays and, on occasion, an employee would ask to carry vacation forward to the next year. Mr. Reese was asked whether there was a stated policy and he responded that his recollection, generally, is that prior to the issue arising with Mr. Boyer, Callidus had no stated policy that unused vacation could not be carried over to subsequent years.

[56] Mr. Riley asserts in his affidavit that Mr. Boyer did take vacation from time to time. He states that where Mr. Boyer did not use vacation in a year, he was compensated for it. If such payments were made, Callidus would have records. Callidus is required to put its best foot forward in response to this motion for summary judgment. Callidus has provided no evidence to support Mr. Riley’s assertion that Mr. Boyer was compensated for unused vacation time each year.

[57] Mr. Riley’s evidence is that Callidus’ policy was that it did not permit its employees to carry over unused vacation from year to year except with express written approval, which Mr. Boyer did not receive. Mr. Riley’s states in his affidavit that Mr. Boyer was “well aware” of this policy. Mr. Riley does not provide any documents to support this policy. No written Callidus policy was provided. No emails were provided showing that this was Callidus’ policy or that such a policy was communicated to Mr. Boyer. Mr. Riley’s bald statement that Mr. Boyer was “well aware” of Callidus’ policy is not supported by evidence.

[58] Mr. Riley states that Mr. Boyer’s vacation pay allegations are contradicted by the fact that in 2015, he took 13 days of holidays, as documented by records maintained by Callidus and acknowledged by Mr. Boyer. Mr. Boyer’s evidence is that he took two weeks’ vacation in 2015 which are factored into his calculation of accumulated vacation days. Callidus has not adduced evidence of any other record that contradicts Mr. Boyer’s evidence of the amount of unused vacation time that he accumulated.

[59] Mr. Reese’s evidence is that he does not think that Callidus had a stated vacation policy in terms of “use it or lose it”. This evidence is consistent with Mr. Boyer’s evidence that there was no such policy. I accept Mr. Boyer’s evidence in this respect, which is supported by Mr. Reese’s evidence.

[60] An employee’s entitlement to vacation or to pay in lieu thereof is fundamental to an employment contract. Mr. Boyer’s evidence is that he worked exceptionally hard for the benefit of Callidus during his employment, and did not take vacation time to which he was entitled because of his dedicated service to Callidus. Callidus received the benefit of Mr. Boyer’s hard work. If Callidus wished to impose a condition to Mr. Boyer’s contract of employment that he was required to take vacation in each year, and was precluded from carrying over to subsequent years his entitlement to vacation or pay in lieu thereof, it was incumbent on Callidus put its best foot forward and tender evidence showing that there was such a policy of which Mr. Boyer was aware. There is no evidence that Callidus did so.

[61] In the absence of any evidence of such a policy that was communicated to Mr. Boyer, other than Mr. Riley’s declaratory statement, which is contradicted by Mr. Boyer’s evidence and unsupported by Mr. Reese’s evidence, there is no genuine issue requiring a trial with respect to whether such a policy existed and was communicated to Mr. Boyer.

[62] I conclude that Mr. Boyer is entitled to damages for unused and accumulated vacation at the time of his retirement in an amount equivalent to 22 weeks’ salary (28 weeks of vacation time to September 6, 2016 less 6 weeks taken) based on an annual salary of $220,000.

Is there a genuine issue requiring a trial in relation to Mr. Boyer’s claim for damages for outstanding deferred bonus amounts?

[63] Mr. Boyer received an annual bonus as part of his compensation at the year end in 2014 and 2015. The amount of the bonus is not in dispute.

[64] Mr. Boyer’s evidence is that under the bonus structure, Callidus withheld a portion of his and other Callidus employees’ bonuses, and would distribute 50% of the withheld amounts in each of the two following years. His evidence is that Mr. Reese described to him that this was done in order to “smooth out” income over time. The deferred portion accrued interest at the quarterly rate of 3%.

[65] Mr. Boyer’s evidence is that in each of 2014 and 2015, he received bonuses equivalent to three times his base salary. His base salary for 2014 was $215,000, and for 2015 it was $220,000. Callidus withheld 40% of Mr. Boyer’s 2014 bonus. Callidus paid half of the withheld amount to him in 2015, but did not pay the other half of the withheld amount. Callidus withheld 60% of his 2015 bonus, and did not pay him any of the withheld amount. Callidus did not pay the 3% quarterly interest on the withheld amounts.

[66] Mr. Boyer’s evidence is that Mr. Glassman and Mr. Reese presented his annual performance reviews. At Mr. Boyer’s performance review in December 2015, Mr. Glassman informed him that his bonus would be the maximum amount it could be for the year. Mr. Boyer’s evidence is that at performance reviews, Mr. Reese explained what percentage of that year’s bonus was to be withheld under the deferred bonus program. At the December 2015 performance review, Mr. Boyer offered to defer the payment of his bonus until issues with some files in his portfolio were sorted out, but Mr. Glassman rejected this idea. He noted that Mr. Boyer had “earned” his bonus.

[67] Mr. Riley states in his affidavit that Mr. Boyer was aware of Callidus’ policy for deferred compensation which contains a requirement that any person eligible for such deferred compensation “... must be employed by the Corporation to receive his or her principal amount of Deferred Bonus or any interest thereon.” Mr. Riley appends as an exhibit to his affidavit a document on Callidus Capital stationary entitled “Deferred Bonus Policy”. Mr. Riley states that this is the applicable policy to which he refers.

[68] Mr. Boyer deposes that he was never shown the “Deferred Bonus Policy” described in Mr. Riley’s affidavit and appended as an exhibit thereto. Mr. Boyer’s evidence is that the bonus awarded to him was in anticipation that he would be leaving the following year and that no terms limiting its applicability were brought to his attention.

[69] Although Mr. Riley deposes in his affidavit that Mr. Boyer “was aware” of Callidus’ policy for deferred compensation which requires that the person eligible for deferred compensation be employed by Callidus to receive any amount for deferred compensation, he does not explain how Mr. Boyer became aware of this policy. No email or other written communication was tendered into evidence which shows that Mr. Boyer was provided with a copy of the Deferred Bonus Policy or told its terms. There is no evidence that Mr. Reese told Mr. Boyer that he would not receive any amount for deferred compensation if he was not employed when payment became due. There is no evidence that Mr. Boyer agreed to this as a condition of his employment.

[70] In Bain v. UBS, 2016 ONSC 5362, the plaintiff claimed damages for wrongful dismissal. One issue was whether the plaintiff was entitled to a bonus as part of his compensation under his contract of employment. A plan of arrangement became effective several years after the commencement of the plaintiff’s employment. The defendant argued that after the plan of arrangement, its system of compensation changed and the plaintiff agreed with the new terms, which precluded him from receiving a bonus if he were no longer employed at the time his bonus would otherwise be paid.

[71] In Bain, the defendant argued that the plaintiff was not entitled to a bonus because he was dismissed prior to the payment date. The trial judge, at para. 114, found that there was no evidence that the plaintiff accepted a fundamental change to his entitlement to a bonus or that the new limitations on bonus entitlement were brought to his attention of the plaintiff by his employer and accepted by him and formed part of his contract of employment. The trial judge awarded damages for the bonus notwithstanding that the plaintiff was not employed when the bonus would have been paid.

[72] Mr. Boyer does not contend that an employer is bound to administer a bonus plan in the same fashion each year. In Bain, at para. 108, the trial judge recognized that circumstances change, particularly in a volatile industry such as investment banking, which may justify an employer changing how a bonus plan is administered. However, as the trial judge noted, the process followed must be fair and consistent among similarly situated employees.

[73] Mr. Boyer’s evidence is unchallenged that he was told by Mr. Glassman at his December 2015 performance review that he would be awarded the maximum bonus because he had earned it. At the time of this performance review, Mr. Glassman knew that Mr. Boyer intended to retire at the end of 2016. Yet, he said nothing about Mr. Boyer losing his right to receive the deferred portion of his earned bonus after his retirement.

[74] Callidus submits that although it knew that Mr. Boyer would be retiring from his full-time position with Callidus at the end of 2016, the possibility was left open for Mr. Boyer to continue after his retirement as a member of Callidus’ credit committee through a consulting or part-time employment agreement. Mr. Boyer’s evidence is that Mr. Glassman suggested this possible role at his December 2015 performance review and he did not respond. There is no evidence that Mr. Boyer was told that acceptance of such a position would extend the date for him to receive the benefit of deferred bonuses or stock options. If the possibility of this post-retirement position was to have this effect on Mr. Boyer’s deferred bonuses or stock options, one would expect Mr. Glassman to have raised this, but he did not.

[75] Mr. Reese’s evidence is that Mr. Glassman’s conclusions on compensation during a performance review would be written in a schedule to be approved by the Compensation Committee and then the Board. Any changes to Callidus’ usual policy approved by Mr. Glassman would be in this schedule which, generally, would be approved by the Compensation Committee. Callidus has not produced the schedule that, on Mr. Reese’s evidence, would have been presented to the Compensation Committee and would have shown any specific recommendations by Mr. Glassman. Callidus’ failure to produce this document justifies an inference that it would not be supportive of Callidus’ position in respect of Mr. Boyer’s claims in relation to deferred bonus or stock options.

[76] Mr. Boyer’s evidence that he was not provided with a copy of Callidus’ Deferred Bonus Policy or told that he would not be paid for earned and deferred bonuses after his employment ended is not challenged. If this was a condition of Mr. Boyer’s employment, it was incumbent on Callidus to inform him of such a condition and obtain his agreement. In the absence of evidence that Mr. Boyer agreed to such a condition, I find that Mr. Boyer’s contract of employment did not include a condition that he would not be paid deferred bonuses after his employment with Callidus ended.

[77] There is no genuine issue requiring a trial in relation to whether Mr. Boyer is entitled to damages for unpaid deferred bonuses.

[78] I conclude that Mr. Boyer is entitled to damages for unpaid and deferred bonus amounts that were awarded to him for 2014 and 2015 ($525,000) plus 3% quarterly interest on the deferred amounts.

Is there a genuine issue requiring a trial in relation to Mr. Boyer’s claim in respect of stock options?

[79] Mr. Boyer pleads in the Amended Statement of Claim: (i) a declaration that all of the stock options of Callidus held by him in Callidus are fully vested or will be fully vested at their respective vesting dates; and (ii) a mandatory order requiring Callidus to deliver up to Mr. Boyer his vested stock options.

[80] Mr. Boyer pleads that there was no written employment contract affecting his entitlement to vesting of stock options in accordance with the usual practice of Callidus. He pleads that it was the practice of Callidus to allow vesting of all options upon departure. He pleads that stock options were an integral component of his compensation package and accordingly they should not be expropriated on his departure.

[81] Since the time of pleading, Callidus has ceased to be a public company by choosing to go private. The stock options awarded to Mr. Boyer can no longer be vested or exercised. On his summary judgment motion, Mr. Boyer claims damages in money for the value of the options if exercised and the shares sold on a certain date.

[82] There is no question that this Court has jurisdiction to award damages in lieu of specific performance.

[83] At the continued hearing of Mr. Boyer’s summary judgment motion, Callidus opposed Mr. Boyer’s claim for damages for the lost value of stock options, in part, on the ground that this claim for damages was not properly pleaded. At the conclusion of the oral hearing of Mr. Boyer’s motion for summary judgment, I asked counsel to provide me with additional written submissions with respect to the sufficiency of Mr. Boyer’s pleaded claim for this relief.

[84] Mr. Boyer submits that his claim is sufficiently pleaded and, in any event, Callidus is precluded by its conduct from objecting to the sufficiency of Mr. Boyer’s pleading in opposition to his claim for damages because it did so object between the time the motion was first brought and the first hearing of the motion in April 2022.

[85] Callidus submits that Mr. Boyer’s claim for damages for lost stock options is not sufficiently pleaded. In support of this submission, Callidus cites Kalkinis (Guardian of) v. Allstate Insurance Company of Canada (1998), 41 O.R. (3d) 528 (C.A.) at pp. 5-6. In Kalkinis, the trial judge addressed an argument made at trial for the first time (a claim for negligence) after both parties had closed their cases, and found the defendant liable and awarded damages. On appeal, the Court of Appeal held that it was impermissible for the trial judge to entertain an argument founded on totally different legal principles. The plaintiffs sought to remedy the problem by moving to amend their pleading. The Court of Appeal accepted that an amendment was needed, but held that it was far too late for an amendment.

[86] Callidus submits that Mr. Boyer’s claim has not been advanced or defended on the basis that damages were being claimed. Callidus submits that its ability to defend Mr. Boyer’s claim for damages has been prejudiced by lack of pleadings and ambiguities in Mr. Boyer’s damages claim. Callidus submits that Mr. Boyer also failed to plead the cause of action for his claim for damages based on stock options that were vested and exercisable on Mr. Boyer’s retirement from full-time employment with Callidus. Callidus points to questions asked on Mr. Boyer’s cross-examination in which counsel for Callidus questioned whether Mr. Boyer had properly pleaded the agreement with Callidus with respect to stock options.

[87] Contrary to the submission by Callidus, the record is clear that Callidus read and understood Mr. Boyer’s claim on account of stock options as including a claim for damages. In Mr. Riley’s affidavit sworn November 2022, he deposes, at paragraphs 39 and 42:

39. With respect to the Plaintiff’s claim for damages on account of his stock options, attached hereto and marked as Exhibit M is a copy of Callidus’ May 17, 2016 Amended and Restated Incentive Plan (“Incentive Plan”). [emphasis added]

40. Callidus was not obliged to agree and never did agree to any special terms in connection with Mr. Boyer’s stock options. The vested options he held in September 2016 (1/3×29,281) were “out of the money” and any and all other options terminated before they vested, in accordance with Callidus’ stock option policy. Boyer suffered no loss and has no valid claim to damages on account of his stock options. [emphasis added]

[88] Mr. Riley includes as an exhibit to his affidavit “a chart of Callidus’ stock price during the relevant period” and states that a portion of the options were “out of the money” in September 2016. If, as Callidus now contends, Mr. Boyer’s claim as pleaded is limited to declaratory relief and specific performance, no calculation of the value of options with reference to their market price would have been necessary.

[89] In its April 20, 2022 factum, Callidus, at para. 43, makes submissions “[w]ith respect to the Plaintiff’s claim for damages on account of his stock options”. Callidus submits at para. 46 of this factum, citing Mr. Riley’s affidavit, that Mr. Boyer “suffered no loss and has no valid claim to any damages on account of his stock options”.

[90] In responding to Mr. Boyer’s claim for damages on account of stock options on its merits without raising any objection to the sufficiency of his pleading, Callidus must be taken to have accepted the sufficiency of Mr. Boyer’s pleaded claim in this respect. Mr. Boyer and Callidus both acted on the shared assumption that Mr. Boyer’s claim for damages for lost stock options was properly pleaded. Mr. Boyer relied on Callidus’ conduct in this respect. Mr. Boyer did not seek leave to amend his pleading.

[91] Callidus has not shown that it will suffer any prejudice if the motion before me proceeds on the same basis as the motion proceeded in 2022. In my view, it would be unfair and unjust to allow Callidus to change its position. If Callidus had an objection to the sufficiency of Mr. Boyer’s pleaded claim for damages in respect of lost stock options, the time to raise the objection was at or before the time when the motion for summary judgment was first heard. Having not done so, Callidus is precluded from raising this objection now.

[92] In these circumstances, it is not necessary for Mr. Boyer to amend his Amended Statement of Claim to expressly plead a claim for damages in respect of the lost value of stock options.

[93] In his affidavit, Mr. Riley produced a record of stock options which Mr. Boyer does not dispute. This record shows:

a. 195,719 stock options which Mr. Boyer exercised and are not at issue on this motion; and

b. 126,962 stock options which Callidus refused to vest, the value of which Mr. Boyer claims.

[94] Mr. Boyer’s evidence is that in 2014, Mr. Reese circulated a document describing Callidus’ policy on stock option awards, which Mr. Boyer reviewed. The document noted that upon a Callidus employee’s death, his or her stock options were to vest and be exercisable within 180 days. Mr. Boyer’s evidence is that he recalls Mr. Reese coming to his office. He noted to Mr. Reese that the document he circulated mentioned what would happen to stock options upon death, but not upon retirement, and Mr. Boyer asked him what would happen to stock options upon retirement. Mr. Reese told him that he would get back to him. Less than a week later, Mr. Reese told him that retirement would be treated the same way as death, and, as such, stock options would vest upon retirement. When he was examined, Mr. Reese did not recall this conversation and testified that he did not think he would have communicated this to Mr. Boyer.

[95] Callidus relies on the Prospectus for Initial Public Offering which Callidus filed with the Ontario Securities Commission on or about April 15, 2014. The Prospectus includes statements with respect to Callidus’ incentive plan and statements with respect to the issuance of stock options. The Prospectus includes a statement that except in cases of death, the expiry date for any unvested portion of any option held by an Eligible Person will be the date such person ceases to be an Eligible Person. Callidus also relies on a document dated May 17, 2016 entitled Amended and Restated Incentive Plan which was appended as an exhibit to Mr. Riley’s affidavit. This plan document provides that the expiry date for any for any unvested portion of options will be the date of termination of an employee’s employment.

[96] Mr. Riley’s evidence is that Callidus was not obliged to agree, and never did agree, to special terms in connection with Mr. Boyer’s stock options. His evidence is that the vested options held by Mr. Boyer in September 2016 (1/3×29,281) were “out of the money” and any and all other options terminated before they vested, in accordance with Callidus’ stock option policy.

[97] The document provided to Mr. Boyer in connection with stock options is silent about what happens to them upon an employee’s retirement. Mr. Boyer had an oral contract of employment. Mr. Boyer, reasonably, asked his superior, Mr. Reese, to confirm with him how Callidus would treat stock options on his retirement. Mr. Boyer’s evidence is that Mr. Reese confirmed with him that his stock options would vest upon his retirement.

[98] Mr. Boyer’s evidence about his discussions with Mr. Reese about stock options and the context in which these discussions took place is detailed and specific. Mr. Reese, on the other hand, does not dispute Mr. Boyer’s evidence because he has no recollection of such as discussion. He says he doubts that he would have made the statement attributed to him. On the evidentiary record, I am able to make the necessary finding about these communications. I find that Mr. Boyer’s detailed evidence is credible. I accept Mr. Boyer’s evidence in respect of his discussions with Mr. Reese about the vesting of stock options on retirement. It is not necessary for me to make any finding of credibility with respect to Mr. Reese’s evidence in this respect.

[99] Mr. Reese was Mr. Boyer’s immediate supervisor and the person to whom he would look to confirm his terms of employment if there was a question. When Mr. Reese’s confirmation was given to Mr. Boyer, this became a term of his contract of employment.

[100] It was always open to Callidus to seek to vary the terms and conditions of Mr. Boyer’s employment and obtain his agreement to a term that Mr. Boyer’s stock options would expire upon his departure from Callidus as an employee, as the Amended and Restated Incentive Plan provides. There is no evidence that Callidus provided this plan to Mr. Boyer and sought and obtained his agreement to it, or that any representative of Callidus, other than Mr. Reese, spoke with Mr. Boyer about how stock options would be treated on his retirement.

[101] Mr. Boyer can no longer exercise stock options and sell shares on the market within 180 days of his retirement. Therefore, a remedy of specific performance is not possible. Courts have awarded damages for the value of lost stock options in wrongful dismissal cases. See O’Reilly v. Imax Corporation, 2019 ONSC 342, at para. 65; aff’d 2019 ONCA 991.

[102] In Poplack v. Intermetco Ltd., 1999 CarswellOnt 534, the court considered the evidence of the plaintiff regarding when he would have exercised his options and sold the resulting shares, accepted that evidence, and valued the stock options based on the market price at that time. The court found, at paras. 43-44, that the plaintiff “would have sold into the market those 12,000 shares as quickly as possible after his dismissal but slowly enough to ensure the share price would not be adversely affected”.

[103] Mr. Boyer explains in his affidavit that in 2014 and 2015, he did not agree with the direction that Callidus was taking and that he did not want to hold his shares for long. He explains why he had become disillusioned by Callidus’ conduct and why he wanted to disassociate himself and divest from the company. Mr. Boyer’s evidence is that he would have exercised his options and sold his shares within two weeks of the January 2, 2017 holiday, had the options vested upon his retirement at the end of 2016. I accept Mr. Boyer’s evidence in this respect.

[104] I conclude that under Mr. Boyer’s employment contract, he was entitled to have all outstanding options vest upon retirement and be exercisable within 180 days.

[105] Callidus submits in its post-hearing written submissions that Mr. Boyer’s ability to exercise any stock options, even if vested, is prohibited during blackout periods, and that the existence of blackout periods was confirmed by Mr. Reese in his evidence. Callidus relies on a statement from Solium Inc., which, Callidus says, undertook the administration of stock options granted from time to time to Mr. Boyer. This statement, described as an account summary, is appended as Exhibit N to Mr. Riley’s November 13, 2020 affidavit. In his affidavit, Mr. Riley identifies Exhibit N as a copy of a summary of the stock options which had been issued to Mr. Boyer as at September 2016. He does not say anything in his affidavit about blackout periods or identify Solium Inc.

[106] The account summary includes the following statement: “Description: Please be advised that a trading blackout will be in effect 16-Dec-2016 11:45 EST to 31-Mar-2017 00:00 EDT. During this blackout period you are prohibited from trading the company’s securities”.

[107] Callidus led no evidence with respect to the existence of blackout periods other than the document appended to Mr. Riley’s affidavit. Mr. Boyer objects to the admissibility of this document as proof of the truth of its contents. It is hearsay for which no exception has been established. I allow Mr. Boyer’s objection and conclude that this document is inadmissible as proof of the existence of a blackout period.

[108] Callidus is required to put its best foot forward in response to this motion. Mr. Riley gave no evidence of the existence of a “blackout period”. Callidus must be presumed to know the blackout periods for the trading of its shares, or could readily have obtained this information from its administrator. Callidus chose not to tender admissible evidence about this issue.

[109] Callidus states in its post-hearing written submissions that it contacted Solium after the hearing to obtain records relating to the administration of Mr. Boyer’s options including additional documents about blackout periods and whether, in exercising any of his stock options prior to the institution of this lawsuit, Mr. Boyer delivered an acknowledgement and representation to Solium in the form appended as Schedule B of Exhibit M to Mr. Riley’s affidavit. This form states that the person signing agrees to be bound by the provisions of the Amended and Restated Incentive Plan. Callidus submits that these documents would be relevant to Mr. Boyer’s entitlement to damages and asks that I not adjudicate the summary judgment motion without evidence of the additional documents.

[110] Mr. Boyer’s motion for summary judgment has now been fully argued before me at two separate hearings. The evidentiary record closed before the motion was argued the first time. I granted Callidus’ request to re-open the evidentiary record to examine Mr. Reese as a witness before the motion was argued a second time. Callidus did not seek leave to adduce any other additional evidence. Callidus did not examine Mr. Reese about the document appended as Exhibit N to Mr. Riley’s affidavit. When the examination of Mr. Reese concluded, the evidentiary record closed again.

[111] Callidus asked for an undertaking during Mr. Boyer’s examination to advise whether he disputes the factual contents of the document appended as Exhibit and to Mr. Riley’s affidavit. In response, Mr. Boyer agreed that the record was his only source of information for (1) the number of stock options he was granted or when, (2) the grant/exercise price of the options; or (3) which options were or were not yet exercised. In the same answer, Mr. Boyer expressly noted: “Mr. Boyer does not admit to the accuracy of any other facts or information in that document (e.g., the information on the first page, the expiry date in the right -most column)”. The reference to blackout periods appears on the first page of this document.

[112] When it received this answer, Callidus would have known that Mr. Boyer did not admit to the truth or accuracy of the information about a blackout period. Callidus chose not to tender admissible evidence in this regard.

[113] As I have held, it was clear to Callidus when the motion was first argued that Mr. Boyer is claiming damages for the lost value of stock options. Callidus cross-examined Mr. Boyer about his claims. Callidus did not cross-examine Mr. Boyer about the existence of any blackout periods. Callidus had a full opportunity to tender responding evidence about the damages claim, including admissible evidence to prove any blackout periods or to prove any other relevant fact. Callidus chose to rely on the evidentiary record that was completed for Mr. Boyer’s motion for summary judgment, and to argue the motion, on two occasions, on this record.

[114] I do not grant the request by Callidus to re-open the evidentiary record and allow it to tender additional documents in opposition to Mr. Boyer’s claim for damages in respect of stock options. This request, made only in post-hearing written submissions, is far too late.

[115] On the evidentiary record before me, there is no genuine issue requiring a trial in relation to Mr. Boyer’s claim for damages based on stock options awarded to him as part of his compensation for his services to Callidus.

[116] The damages to compensate Mr. Boyer for the lost value of his stock options are calculated by the difference in value between the grant price of each option award and the market price as of January 16, 2017, the date that, I find, Mr. Boyer would have exercised his vested options.

[117] I conclude that Mr. Boyer is entitled to damages for stock options. I accept the calculation of damages on this basis set out in Appendix “A” to Mr. Boyer’s Supplementary Factum. The damages so calculated are $1,251,945.58.

Is there a genuine issue requiring a trial in relation to the defence raised by Callidus that if Mr. Boyer was constructively dismissed, his dismissal was for just cause?

[118] I have concluded that Mr. Boyer was not constructively dismissed from his employment with Callidus and that there is no genuine issue requiring a trial in respect of this issue. Mr. Boyer retired from his employment with Callidus and his retirement became effective when he departed from Callidus on September 8, 2016.

[119] Given this conclusion, it is not necessary for me to decide whether there is a genuine issue requiring a trial in relation to whether there was just cause for Mr. Boyer’s constructive dismissal. Mr. Boyer is entitled to be paid the compensation owed to him under his contract of employment.

[120] If I am held to have erred in reaching the conclusion that Mr. Boyer was not constructively dismissed, I address Callidus’ submission that there is a genuine issue requiring a trial in relation to whether its allegations in support of its counterclaim constitute just cause for Mr. Boyer’s constructive dismissal.

[121] Callidus pleads that Mr. Boyer’s conduct in relation to three borrowers of Callidus (Horizontal, XTG, and Gray Aqua) as described in its counterclaim justifies his dismissal for just cause. Callidus accepts and acknowledges the decision of the Court of Appeal for Ontario ordering that its counterclaim be dismissed pursuant to s. 137.1 of the Courts of Justice Act.

[122] Callidus pleads that Mr. Boyer’s conduct and actions in relation to the three borrowers were serious breaches of his employment duties and responsibilities and constitutes just cause for the termination of his employment. Callidus pleads that in view of Mr. Boyer’s voluntary resignation or, alternatively, his dismissal for cause, Callidus is not obligated to provide further compensation to Mr. Boyer.

[123] Mr. Boyer submits that Callidus has not properly pleaded a defence that if Mr. Boyer was constructively dismissed, his dismissal was for just cause. In the alternative, Mr. Boyer submits that the Court of Appeal dismissed Callidus’ counterclaim in its entirety and that Callidus is precluded by the doctrines of issue estoppel and abuse of process from relying on the allegations in its counterclaim as just cause for Mr. Boyer’s alleged constructive dismissal.

[124] I do not find that Callidus is precluded from relying on its proposed Amended Statement of Defence and Counterclaim for purposes of this motion.

[125] In making an order dismissing Callidus’ counterclaim, the Court of Appeal addressed the “substantial merits” burden under s. 137.1(4)(a)(i) of the Courts of Justice Act which involves an assessment of the evidentiary basis for the claim. The “substantial merit” burden required Callidus to show that the counterclaim had “a real prospect of success” that “tend[ed] to weigh more in favour of [Callidus]”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at para. 49. In Pointes, the Supreme Court of Canada, at para. 51, held that the substantial merit standard is less stringent than the test for summary judgment.

[126] In reaching its conclusions with respect to Callidus’ counterclaim, the Court of Appeal addressed Callidus’ allegation that Mr. Boyer was a fiduciary and, at para. 43, concluded that Callidus has failed to plead either the requirements at law or the details of fact to support the claim. The Court of Appeal, at para. 45, held that Callidus “never pleaded any sort of undertaking, express or implied, on Mr. Boyer’s part to act in Callidus’ interests. This is fatal to the counterclaim”.

[127] The Court of Appeal held that Callidus’ counterclaim for $150 million is based on bald allegations and that the cross-examinations show that the allegations are unsubstantiated and that Callidus’ representatives confirmed as much. The Court of Appeal noted that Callidus proposed an amendment to reduce the damages claimed to $3 million, but still did not produce an itemization to substantiate the quantum.

[128] The Court of Appeal concluded that the counterclaim is an attempt to silence a former employee seeking recovery in his wrongful dismissal claim and create a chilling effect for other employees.

[129] The preconditions to the operation of issue estoppel are: (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceeding in which the estoppel is raised or their privies: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at para. 25.

[130] Mr. Boyer submits that the burden of proof that rested with Callidus in response to his motion under s. 137.1 of the CJA is lower than his burden of proof on this motion for summary judgment and, therefore, issue estoppel applies. I accept this submission. The Court of Appeal, applying the “substantial merit” standard, a less stringent standard that the test for summary judgment, was not satisfied that there are grounds to believe that Callidus’ counterclaim has substantial merit.

[131] I am satisfied that the preconditions for issue estoppel are met.

[132] If I had held that there is no genuine issue requiring a trial in relation to whether Mr. Boyer was constructively dismissed from his employment with Callidus and that he was constructively dismissed, I would conclude that Callidus is precluded by the doctrine of issue estoppel from relying on evidence tendered in support of the allegations in its counterclaim to show a genuine issue requiring a trial on the question of whether such allegations constitute just cause for Mr. Boyer’s constructive dismissal.

Disposition

[133] For these reasons, I allow Mr. Boyer’s motion and grant summary judgment against Callidus for:

a. Damages in the amount of $93,076.92 for 22 weeks of unused vacation.

b. Damages for unpaid and deferred bonus amounts that were awarded to him for 2014 and 2015 ($525,000) plus 3% quarterly interest on the deferred amounts to the date hereof, and

c. Damages in the amount of $1,213,856.98 for the value of lost stock options.

[134] I ask counsel to provide me with an approved from of judgment that includes the calculation of interest on the damages for unpaid and deferred bonus amounts.

[135] If the parties are unable to resolve costs, they may make written submissions in accordance with a timetable to be agreed upon by counsel and approved by me (not longer than 5 pages for Mr. Boyer’s submissions and for Callidus’ responding submissions; 2 pages for reply).

Cavanagh J.

Date: January 02, 2024