Seann D. McAleese

The plaintiff brought a motion to certify a class action against Allstate Insurance Company of Canada, alleging the employer breached the Employment Standards Act by failing to include certain bonus payments in the calculation of vacation and public holiday pay.

The court found that the 'some basis in fact' requirement was met only for Business Development Agents regarding the Agency Performance Bonus, as there was evidence it was not wholly discretionary and related to individual production.

The motion for certification was granted but strictly limited to this subclass and bonus type.

The plaintiff was terminated without cause after six years of employment as Vice-President of Finance.

Following a threatening email from the plaintiff regarding his severance package, the employer conducted a forensic investigation and discovered he had downloaded copyrighted media using peer-to-peer software on his work computer.

The employer then alleged after-acquired cause.

The court found the misconduct did not amount to just cause, as there was no nefarious intent, no actual harm to the employer, and the conduct was not incompatible with continued employment.

The court also struck down the termination clause for violating the Employment Standards Act, 2000, and awarded the plaintiff 12 months' reasonable notice.

A claim for punitive damages was dismissed.

Following a trial, the parties agreed that the partial indemnity costs recovery figure would be $60,000, subject to arguments on the appropriate scale.

The defendants sought substantial indemnity costs, relying on a Rule 49 offer and the plaintiff's alleged unreasonable behaviour.

The court rejected the defendants' arguments for substantial indemnity costs and ordered the plaintiff to pay the agreed partial indemnity costs of $60,000.