Dismissal Without Cause (Age 50 to 65)(WDD-Professional)

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Date Retrieved:	2025-04-01
CLNP Page ID:	2481
Page Categories:	[WDD-Professional]
Citation:	Dismissal Without Cause (Age 50 to 65)(WDD-Professional), CLNP 2481, <>, retrieved on 2025-04-01
Editor:	Sharvey
Last Updated:	2025/03/05

Marshall v. Watson Wyatt & Co., 2002 CanLII 13354 (ON CA)

The plaintiff was a communications consultant. She accepted the defendant's offer of employment over a competing offer when told that she would be offered an equity position and a future role internationally. She was given the title of Director of Organizational Communications Practice Canada. Her employment was terminated a year later. She brought an action for damages for wrongful dismissal. The defendant alleged cause for dismissal, but by the time of the trial no longer disputed its liability to the plaintiff. Damages alone were in issue. The case was tried before a jury. The jury found that the plaintiff was entitled to damages equivalent to 12 months' notice, consisting of 9 months' reasonable notice and a further 3 months for bad faith conduct in the way the defendant dismissed her. The jury also awarded punitive damages of $75,000. The defendant appealed.

Held, the appeal should be allowed in part.

...

[4] Ms. Marshall is a communications consultant. Before being hired by Watson Wyatt, she worked for Towers Perrin for eight years as a senior consultant. By the summer of 1994, she was "up for partnership" with Towers Perrin. Around the same time, a search firm acting for Watson Wyatt asked to meet with her. She declined.

[5] Later in the fall of 1994, she decided not to pursue a partnership in Towers Perrin. Instead, she called the search firm and asked to meet with its representatives and their client. By mid-November 1994, she had met with three senior employees of Watson Wyatt, all of whom indicated a desire to hire her. She was also being pursued by another company, the Juran Institute, which orally offered her a position. On November 16, 1994, Towers Perrin terminated her employment.

[6] Ms. Marshall then had to decide between the Juran Institute and Watson Wyatt. The Juran offer was for $140,000 base salary, a percentage of sales, and "other perks". She disclosed this offer to Ian Durrell, Watson Wyatt's Director for Canada and managing consultant for its Toronto office, who said he would offer her an equity position, which Juran had not done, and a future role internationally. He said that Watson Wyatt's new business direction would bring her practice area to the forefront of the company's business. She decided to accept Watson Wyatt's offer.

[7] On December 22, 1994, Ms. Marshall and Watson Wyatt signed two letter agreements -- one dated December 8, 1994 and the other dated December 9, 1994 -- setting out the basic terms of her employment. Her claim is based on these two letters and a few other terms that she says were agreed to orally.

[8] Ms. Marshall was given the title of Director of Organizational Communications Practice Canada. She was told to focus on setting up the Toronto office but was also given responsibility for Watson Wyatt's Montreal office, and later for the company's offices in Western Canada.

[9] For the first stage of her employment, which the jury found covered the 18-month period January 1, 1995 to June 30, 1996, Ms. Marshall was to be paid a base salary of $120,000 "plus 10 [per cent] of revenue generated directly and indirectly" through her efforts and earned during the period. Under the letter agreements, this 10 per cent of revenue was called Ms. Marshall's "compensable revenue". For the next stage of her employment, covering the period July 1, 1996 to June 30, 1997, Ms. Marshall was to be paid a minimum base salary of $140,000, which could be increased depending on her compensable revenue (or "initial year revenues") during the previous 18 months, plus a discretionary bonus up to a maximum of 40 per cent of her base salary.

[10] Ms. Marshall started working for Watson Wyatt at the beginning of January 1995. From mid-October to early December 1995, she was away from the office with pneumonia. She then took three weeks' vacation, returning to the office on January 8, 1996. She was fired that day.

[11] By the time of trial, Watson Wyatt no longer disputed its liability to Ms. Marshall. Damages alone were in issue. The jury assessed Ms. Marshall's damages by answering 14 questions. They found that Watson Wyatt owed Ms. Marshall $143,165.82 in compensable revenue for the first stage of her employment, $298,049 on account of her dismissal, which included a bonus of $45,000, and $75,000 in punitive damages for a total award of $516,214.82. The amount awarded for compensable revenue earned before she was fired is not in issue in this appeal. ...

[50] Even if the Commission's view satisfies the independent actionable wrong requirement, and I doubt whether it does, a punitive damages award in this case serves no rational purpose. Ms. Marshall was awarded generous compensation equal to nine months' notice. That nine months was increased by three months because of the jury's finding that the way Watson Wyatt dismissed Ms. Marshall was unfair or in bad faith. Undoubtedly the jury relied on much the same evidence for both extending the notice period by three months and awarding punitive damages. In my view, the overall compensatory award of 12 months' notice -- which included a base salary of $112,500 for the second six months and a maximum bonus of $45,000 -- was more than adequate to express the jury's disapproval of Watson Wyatt's conduct and to deter similar conduct in the future. I would therefore set aside the award of $75,000 in punitive damages.

D. Disposition

[51] I would allow the appeal in part by setting aside the punitive damages award ($75,000) and directing the trial of an issue on the compensable revenue awarded Ms. Marshall in connection with the Montreal office ($46,330.30). I would therefore reduce Ms. Marshall's damages from $516,214.82 to $394,884.52. Correspondingly, I would reduce the amount of damages on which interest is to be paid from $441,214.82 to $394,884.52.

[52] Before addressing costs, I would give both parties an opportunity to make submissions in writing on both the costs of the trial and of the appeal. These submissions should be delivered within 30 days of the release of the court's reasons.

Appeal allowed in part.

Farrell v. Workgroup Designs Ltd., 2005 CanLII 2314 (ON SC)

[1] The Plaintiff, Patrick Farrell (“Farrell” or “Paddy”), claims entitlement to the following:

a. payment in lieu of notice of damages for wrongful dismissal (twelve months x $8,400 per month, plus payment in lieu of twelve months of benefits);

b. Wallace damages (six months x $8,400 per month, plus payment in lieu of six months of benefits);

c. payment of outstanding amounts owed at the time of termination ($8,000 per month x 22 months) + 20% interest – $72,000;

d. a declaration that he holds 600,000 options to purchase shares of Workplace Designs Ltd (“Ltd”) at an exercise price of $0.25 each, expiring on May 31, 2005;

e. a declaration that he holds 400,000 options to purchase 400,000 shares of Ltd at an exercise price of $0.30 each, expiring on January 2, 2007;

f. reimbursement for:

i. medical expenses in the amount of $3,799.03;

ii. business expenses in the amount of $1,016.61;

iii. other expenses in the amount of $1,090.63;

g. pre and post-judgment interest; and

h. costs.

...

[99] I find to all intents and purposes Farrell worked only for the company after August 1, 2000. From the Hy’s meeting to August 1, he was working for Inc. on a part-time basis, increasing his involvement and winding down his other activities. Before the Hy’s meeting, he worked as Inc’s part-time President for several years. He was subject to the direction and authority of Inc’s Board. He was part of its business organization and as President oversaw its day-to-day business. He was also using his contacts and expertise to advance the RTO.

[100] De Cairos conceded that at least after the successful RTO, Farrell was to be on Ltd’s payroll as its employee. He conceded that at the latest, Farrell became an employee of Ltd on January 2, 2002.

[101] I find Farrell did not resign on February 26, 2002. His employment continued until March 31, 2002.

...

[114] I have found that Farrell was akin to a full-time employee of Inc from August 1, 2000 and of its successor Ltd from January 2, 2002 to March 31, 2002.

[115] In such circumstances, other courts have required reasonable notice of termination. See: Marbry Distributors Ltd. v. Avrecan International Inc. 1999 BCCA 172 (CanLII), [1999] B.C.J. No. 635 (B.C. C.A.); Caradoc Power Line Ltd. v. Southwest Middlesex (Municipality) [2003] O.J. No. 2406 (Ont. S.C.J.)

[116] Farrell’s employment was terminated. He is entitled to payment in lieu of notice.

[117] In determining reasonable notice, this Court has taken account of Farrell’s full-time uninterrupted service between August 2000 and March 2002.

[118] The period of reasonable notice must be decided on the facts of each case having regard, among other things, to the character of the employment, the length of service, the age of the employee, his/her experience, training, qualifications and the availability of similar employment.

[119] Farrell is a highly trained executive. His senior position as President involved great responsibility. He was left to run the company and to take it public. He was President of Inc and its successor Ltd on a full-time basis for almost two years. He was part-time President for several years before that.

[120] There was no evidence that similar employment was available to him after his termination. His present age is a factor.

[121] Bearing the relevant factors in mind, I find the period of reasonable notice should be 7 months from March 31, 2002.

[122] Farrell is entitled to salary and benefits at the level of the salary and benefits he was receiving in January and February 2002 ($8400 per month plus benefits).

[123] If counsel cannot agree on the calculation, they may apply for further directions.

[124] The Defendant is not entitled to offset $8246 against the amount owing.

Wallace Damages

[125] I accept the submission of counsel for the Plaintiff that Farrell is entitled to additional notice on the principles set out in Wallace v United Grain Growers Inc., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701.

[126] De Cairos maintained throughout the trial that as Farrell resigned, he was not entitled to any payment arising from his wrongful dismissal, nor was he entitled to the benefit of 400,000 stock options.

[127] De Cairos also maintained that in late February and March 2002, it was Farrell who was not negotiating in good faith.

[128] The formal Ltd Minutes dated February 26, 2002 reflect that Farrell did not resign.

[129] As of the end of March 2002, De Cairos did not afford Farrell the courtesy of a final meeting; instead, he dismissed him by email.

[130] I have found De Cairos/Ltd reneged on Inc’s agreement at the Hy’s meeting to pay Farrell $8000 per month. Given Farrell’s history with Inc and Ltd, his relationship with De Cairos, his cooperation in deferring salary while he was advancing the RTO to ultimate success, my finding that the Board acceded to pressure from De Cairos and attempted to renege on the agreement at the Hy’s meeting affirmed by the Ltd Board on January 9, 2002, and given the content of the proposed consulting agreement and De Cairos’ allegation that it was Farrell who was acting in bad faith, I find Ltd did treat Farrell in a callous and insensitive manner. I extend the notice period by a further 2 months for that reason.

...

Chambers v. Global Traffic Technologies Canada Inc., 2018 ONSC 2000 (CanLII)

[14] I review the relevant facts below as to (i) Chambers’ employment with Global, (ii) the governing contractual agreements, (iii) his remuneration, (iv) Chambers’ employment history, and (v) termination of employment.

i) Chambers’ employment with Global

[15] The relevant facts as to Chambers’ employment with Global can be summarized as follows:

(i) Chambers is currently 57 years old;

(ii) He worked for Global as “General Manager” from February 23, 2015 until terminated without cause on August 15, 2017, a period of 2 years and 6 months;

(iii) Chambers was the most senior employee of Global;

(iv) Global is a wholly-owned subsidiary of Global Traffic Technologies LLC (“Global LLC”), a US-based global manufacturer of traffic management technologies;

(v) Global LLC operates across Canada, the United States, and Europe;

(vi) Chambers reported directly to Brian VanDerBosch (“VanDerBosch”), who is Vice President of Global, and Chief Financial Officer and Chief Operating Officer of Global LLC;

(vii) VanDerBosch reported to the President of Global LLC;

(viii) As General Manager at Global, Chambers was based in Toronto but had responsibility over three regional offices, namely Toronto, Boston, and Washington, D.C.;

(ix) The revenue generated by those three offices was targeted to be $6.3 million per year[7];

(x) As General Manager at Global, Chambers was responsible for daily management of three dealer sales representatives and one technical support representative, maintaining relationships with contractors, and coordinating sales activities with Global’s Regional Vice President of Sales[8];

(xi) Chambers’ responsibilities at Global included the leadership and management of sales, operations, client service, profit and loss, and technical team; and

(xii) Chambers was a member of the Global LLC “global leadership team”.

...

iii) Chambers’ remuneration

[19] At the date of his dismissal, Chambers had the following remuneration structure:

(i) annual base salary of $163,200 ($13,600 per month),

(ii) a “target” bonus of $90,000,

(iii) an annual employer RRSP matching contribution based on 6% of remuneration,

(iv) an annual car allowance of $8,520 ($710 per month),

(v) up to four weeks paid holiday per year,

(vi) a medical prescription plan,

(vii) a dental plan,

(viii) short and long-term disability benefits,

(ix) a vision care plan,

(x) a life insurance plan, and

(xi) accidental death and dismemberment protection.

...

[34] The governing principle to establish the length of reasonable notice is set out by McRuer C.J.H.C. in Bardal v. Globe and Mail, 1960 CanLII 294 (ON SC), 1960 CarswellOnt 144 (H.C.J.) (“Bardal”), at para. 21:

There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.

[35] The Bardal factors are not exhaustive, and each case must be assessed on its own facts (Minott v. O’Shanter Development Company Ltd., 1999 CanLII 3686 (ON CA), [1999] O.J. No. 5 (C.A.), at para. 66).

[36] As is common in wrongful dismissal actions, each party provided the court with numerous cases (11 from Chambers and 6 from Global) which they submitted raised similar Bardal factors and should be considered by the court to either establish a 12 month notice period (as per Chambers) or a 3 to 6 month notice period (as per Global).

...

[60] On the above facts, the amount of notice ought to be somewhat greater than the highest amount of six months proposed by Global as set out in Lloyd, and somewhat lower than the 12 month period relied upon by Chambers from Felice and Dwyer.

[61] Based on my review of the Bardal factors, I fix the length of reasonable notice at nine months.

Rodgers v. CEVA, 2014 ONSC 6583 (CanLII)

[2] The plaintiff is 57 years of age having been born August 23, 1957. He is married with three adult children. He has a high school education and has been engaged throughout his entire working life in the trucking, freight forwarding and logistics industry.

[3] The plaintiff accepted an offer of employment with the defendant on September 6, 2009 to become its Country Manager, Canada at an annual salary of $276,000 with a $40,000 signing bonus paid within the first week of employment. The employment agreement also included other benefits. On June 28, 2012, the plaintiff’s employment with the defendant was terminated. At the time of termination, the defendant paid the plaintiff two weeks salary in lieu of notice totaling $11,115.44, severance pay in the amount of $5307.72 and outstanding vacation pay of $20,324.92. Benefit coverage was terminated as of July 12, 2012.

[4] As of 2009, the plaintiff was the president of Sameday Worldwide, a company that handled transportation of goods larger in size than would be shipped by a courier and smaller than truckload quantities. He was earning an annual salary of $189,000 plus a bonus. In 2009 his bonus was $126,000. The plaintiff had been employed by Sameday or one of its affiliated companies since 1998.

[5] The plaintiff did not approach the defendant seeking employment but rather was recruited to become the defendant’s Country Manager of its Canadian operations. The plaintiff knew Marcel Braithwaite, an employee of the defendant, as a result of prior business dealings. Sometime before September, 2009, Braithwaite approached the plaintiff and asked if he would be interested in employment with the defendant. Braithwaite said the defendant was looking for someone to lead the separation of the defendant’s Canadian operation from that of its operations in the United States. The plaintiff indicated he would be interested in such a position.

[6] The plaintiff attended a total of seven interviews with the defendant. He was flown to Houston, Texas on two occasions and his final interview was with the Chief Executive Officer of the defendant’s global parent company. The defendant presented the plaintiff with an offer of employment which he did not accept. The plaintiff could not remember the salary offered initially. Within a week the defendant presented a second offer of employment to the plaintiff which he accepted. The original offer of employment did not contain the signing bonus of $40,000. No evidence was presented with respect to the salary or any other terms or conditions of the first offer of employment although the plaintiff testified that he thought the salary in the first offer was less than the salary in the offer that he accepted.

...

[33] With respect to the issue of inducement, I have come to the conclusion that there was some measure of inducement by the defendant which resulted in the plaintiff leaving his employment with Sameday. The only evidence is that the plaintiff was approached by the defendant to become its Canadian manager. The financial package including, signing bonus and benefits was attractive to the plaintiff and was part of the encouragement on the part of the defendant to have him accept the position which he was offered. When the plaintiff declined the defendant’s initial offer, an improved offer was promptly presented. While I am of the view that there was some degree of inducement by the defendant to encourage the plaintiff to leave his secure employment, the inducement did not achieve the level of that in Wallace where the plaintiff was given a specific assurance of long-term job security.

[34] The plaintiff was the most senior person in the defendant’s Canadian operation. He was responsible for more than 500 employees and the Canadian operation generated sales in excess of $140 million annually. It follows, in my view, that both parties would understand the difficulty that would be encountered by the plaintiff in securing a similar position if his employment were to be terminated.

[35] The plaintiff was employed by the defendant for slightly less than three years. He was not a long-term employee. This factor would tend it to lessen the period of notice upon termination of employment.

[36] The plaintiff was approximately 52 years of age when he began working for the defendant. He was 55 years of age when his employment was terminated. His resume makes it clear that his entire working career was in the transportation and logistics industry. The plaintiff’s evidence is unchallenged that there are only six companies in Canada who carry on a business similar to that of the defendant. Accordingly, it would be reasonable for the parties to have had in contemplation at the time of entering into the employment agreement that the plaintiff would encounter some difficulty in securing an equivalent position if his employment with the defendant was terminated. The plaintiff’s unchallenged evidence is also that the trucking business was in a downturn in the summer and fall of 2012 and there were no opportunities available for someone with his qualifications. These factors would have the effect of increasing the appropriate period of notice.

...

[45] To summarize, the plaintiff’s age, his position as the Canadian manager of the defendant’s operations responsible for over 500 employees and sales in excess of $140 million annually, the limited number of similar positions in Canada and the requirement that the plaintiff make a significant investment with a company associated with the defendant as a condition of employment all point to a lengthy notice period. The recruitment of the plaintiff by the defendant when he was employed in a senior position of significant length of service is also a factor tending to increase the period of notice. Against those factors is the short period of time that the plaintiff was employed by the defendant. However, I have concluded that both parties to the employment contract contemplated, at the commencement of the employment relationship, that it would be a long one. Specifically, I do not believe that either party thought of the plaintiff’s employment could be terminated after approximately three years of service upon payment of two weeks’ salary in lieu of notice plus severance pay in the approximate amount of $5000.

[46] In my view, an appropriate period of notice is 14 months.