Employment - Damages
. Render v. ThyssenKrupp Elevator (Canada) Limited
In Render v. ThyssenKrupp Elevator (Canada) Limited (Ont CA, 2022) the Court of Appeal heard a wrongful dismissal appeal, and considered whether to treat litigation misconduct as going towards punitice damages or to costs:
(1) Punitive Damages. Currie v. Nylene Canada Inc.
 In McCabe v. Roman Catholic Episcopal Corp., 2019 ONCA 213, 146 O.R. (3d) 607, this court confirmed that litigation misconduct can be an independent actionable wrong that can give rise to an award of punitive damages: at para. 48. The trial judge declined to deal with the issue in that way, and instead determined that the respondent’s litigation misconduct could be addressed in the context of entitlement to costs. He was entitled to take that approach and his decision on this point is entitled to deference. As this court affirmed in McCabe, punitive damages remain “the exception rather than the norm”: at para. 48.
In Currie v. Nylene Canada Inc. (Ont CA, 2022) the Court of Appeal comments on wrongful dismissal damages:
 The trial judge firmly anchored his reasonable notice analysis in the factors identified in Bardal v. The Globe and Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.). As well, he acknowledged that the decisions of this court in Lowndes v. Summit Ford Sales Ltd. (2006), 2006 CanLII 14 (ON CA), 206 O.A.C. 55 (C.A.) and Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512, 435 D.L.R. (4th) 573 state that exceptional circumstances should exist to support a notice period that exceeds 24 months.. Manastersky v. Royal Bank of Canada
In Manastersky v. Royal Bank of Canada (Ont CA, 2021) the Court of Appeal summarized the effect of the decision in Matthews (SCC, 2020):
III. THE LAW AS AFFIRMED IN THE MATTHEWS DECISION. Matthews v. Ocean Nutrition Canada Ltd.
 Upon the termination of employment without cause, an employee is entitled to damages equivalent to what the employee would have earned during the notice period, including compensation for bonuses or incentives that would have been earned had the employer not breached the employment contract: Matthews, at para. 48. The purpose of damages in lieu of reasonable notice is to put employees in the position they would have been in had they continued to work through to the end of the notice period: Matthews, at para. 59. The remedy for a breach of the implied term to provide reasonable notice is an award of damages based on the period of notice which should have been given, with the damages representing what the employee would have earned in this period: Matthews, at para. 49.
 Noting that how payments under incentive bonuses or plans are to be included in these damages is a recurring issue in the law of wrongful dismissal, the Supreme Court affirmed the two-step approach set out by this court in Lin v. Ontario Teachers’ Pension Plan, 2016 ONCA 619, 402 D.L.R. (4th) 325, Paquette v. TeraGo Networks Inc., 2016 ONCA 618, 352 O.A.C. 1, and Taggart v. Canada Life Assurance Co. (2006), 50 C.C.P.B. 163 (Ont. C.A.): at para. 49. The Supreme Court stated, at paras. 52-54, that the two-step approach rests on two key principles:
(i) When employees sue for damages for wrongful dismissal, they are claiming for damages as compensation for the income, benefits, and bonuses they would have received had the employer not breached the implied term to provide reasonable notice; and Building on those two principles, the Supreme Court, at para. 55, affirmed a two-step approach to determine whether an employee dismissed without cause is entitled to damages in respect of a bonus or incentive benefit:
(ii) A contract of employment effectively “remains alive” for the purposes of assessing the employee’s damages, in order to determine what compensation the employee would have been entitled to but for the dismissal.
Courts should accordingly ask two questions when determining whether the appropriate quantum of damages for breach of the implied term to provide reasonable notice includes bonus payments and certain other benefits. Would the employee have been entitled to the bonus or benefit as part of their compensation during the reasonable notice period? If so, do the terms of the employment contract or bonus plan unambiguously take away or limit that common law right? The Supreme Court further clarified that resorting to the so-called “integral” test does not play a role in all cases. Where there is doubt about whether the employee would have received a discretionary bonus during the reasonable period of notice, resorting to the test of whether a benefit or bonus is “integral” to the employee’s compensation can assist in answering the question of what the employee would have been paid during the reasonable notice period: Matthews, at para. 58. By contrast, where there is no doubt that the employee would have received a bonus or incentive benefit during the notice period, there is no need to ask whether the bonus was “integral” to the employee’s compensation: Matthews, at para. 59. At the remand hearing, counsel for Mr. Manastersky acknowledged that, on the facts of this case, the issue of whether the incentive benefit was “integral” does not arise because the entitlement to payments under the Mezzanine CIP was not discretionary.
 The Original Decision identified the legal principles applicable to the appeal as those set out in Lin, Paquette, and Taggart, including the application of the two-step approach: Original Decision, paras. 39-43. Consequently, I do not see the exercise on this remand as applying any new legal principles identified in Matthews to the case on appeal; the legal principles affirmed in Matthews were those applied in the Original Decision. Instead, I propose to look afresh at the application of the two-step analysis to the case on appeal.
 Under the Matthews framework, the issue of any limitations on an employee’s entitlement to bonus/incentive benefit compensation typically (but not invariably) would arise under the second step – namely, do the terms of the employment contract or bonus plan unambiguously take away or limit a common law right or entitlement upon the termination of employment? The factual twist in the present case is that the issue of any limitation on Mr. Manastersky’s entitlement to further incentive benefits during his period of reasonable notice falls more under Matthews’ first step: would he have been entitled to receive payment of a CIP incentive benefit as part of his compensation during the reasonable notice period? However, as recognized in the Original Decision, at para. 51, incentive-benefit plans vary greatly in their structure and pay-out terms, so the analysis in respect of one type of incentive plan may not be transferable to the analysis of another type of incentive plan.
 In Matthews, the employee’s entitlement to a long-term incentive plan payment – the occurrence of a “Realization Event” such as the sale of the employer – was limited by the incentive plan’s requirement that the employee be a “full-time employee” at the date of the Realization Event. The Supreme Court held that the first step was clearly satisfied because the Realization Event fell within the employee’s reasonable notice period; but for the employee’s dismissal, he would have received the incentive payment: Matthews, at para. 59. In considering the second step, the Supreme Court held that the language of “full-time employee” did not limit the employee’s entitlement to the incentive payment when the Realization Event occurred during the period of reasonable notice: Matthews, at paras. 65-67.
In Matthews v. Ocean Nutrition Canada Ltd. (SCC, 2020) the Supreme Court of Canada, correcting a conflation between damage issues in the courts below, emphasizes the difference in wrongful dismissal cases between breach for failure to give reasonable notice, and breach for breach of good faith. The issue here, a bonus that would have come due during a period of wrongful dismissal notice, are to be assessed with notice damages, not bad faith damages [para 49]. With such issues, the procedure is two-fold: (1) to assess whether the benefit came due in the awarded notice period, and (2) "do the terms of the employment contract or bonus plan unambiguously take away or limit that common law right?" [see 'liability-allocation', elsewhere]:
B. The Appropriate Method of Analysis
 Properly understood, the claim pursued here indeed rests on allegations of distinct contractual breaches of Mr. Matthews’ employment contract.
 Neither party disputes that, at common law, an employer has the right to terminate the employment contract without cause — or, in this case, prompt the employee to choose to leave their job in circumstances that amount to a dismissal — subject to the duty to provide reasonable notice, a right which, as this Court noted in Farber v. Royal Trust Co., 1997 CanLII 387 (SCC),  1 S.C.R. 846, at para. 23, is reciprocal in the contract of employment. When breached, the obligation to provide reasonable notice does not, in theory, turn on the presence or absence of good faith: it is, in a manner of speaking, a “good faith” wrongful dismissal (see Machtinger, at p. 990). The contractual breach that arises from the employer’s choice in this regard is simply the failure to provide reasonable notice, which leads to an award of damages in lieu thereof (Wallace, at para. 115, per McLachlin J., as she then was, dissenting, but not on this point). There is some dispute in the cases regarding how to determine what damages should be awarded in the event of a breach, which I will consider below, but this breach does not turn on whether or not the employer acted honestly or in good faith.
 Running parallel to the argument on reasonable notice, Mr. Matthews has alleged that his termination was also in breach of contract because it failed to meet the expected standard of good faith. Under rules recognized by this Court in Bhasin and Potter, an unhappy employee can allege dishonesty in the performance of the contract by the employer — i.e., a breach of the duty of honest performance, which Cromwell J. in Bhasin described as contractual doctrine — independently of any failure to provide reasonable notice. This Court has also recognized in Wallace and Keays that an unhappy employee can allege mistreatment — i.e., conduct that is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive” — in the manner of dismissal by the employer (Wallace, at para. 98; Keays, at para. 57). A breach of the duty to exercise good faith in the manner of dismissal is also independent of any failure to provide reasonable notice. It can serve as a basis to answer for foreseeable injury that results from callous or insensitive conduct in the manner of dismissal, a point to which I will return to at the conclusion of these reasons (Wallace, at para. 88).
 Importantly, damages arising out of the same dismissal are calculated differently depending on the breach invoked. Again, this is nothing but a reflection of settled law. In Keays, at para. 56, for example, Bastarache J. helpfully explained that “[t]he contract of employment is, by its very terms, subject to cancellation on notice or subject to payment of damages in lieu of notice without regard to the ordinary psychological impact of that decision”. By contrast, he explained that failure to act in good faith during the manner of dismissal “can lead to foreseeable, compensable damages” based on the Hadley principle (para. 58). Contrary to what had been thought until that time, an extension of the notice period was not to be used to determine the proper amount to be paid (para. 59). This is because the nature of the contractual breach is of a different order than that associated with the failure to provide reasonable notice. Indeed, it is this fundamental difference that explains why principles of mitigation apply differently to mental distress damages flowing from a breach of the good faith obligation in the manner of dismissal (Evans v. Teamsters Local Union No. 31, 2008 SCC 20,  1 S.C.R. 661, at para. 32).
 With this in mind, I turn now to examine the duty to provide reasonable notice, which as will become plain, is dispositive of this appeal.
(1) Duty to Provide Reasonable Notice
 In the case at bar, the only disagreement in respect of reasonable notice turns on whether Mr. Matthews’ damages include an amount to compensate him for his lost LTIP payment.
 In my respectful view, the majority of the Court of Appeal erred by focusing on whether the terms of the LTIP were “plain and unambiguous” instead of asking what damages were appropriately due for Ocean’s failure to provide Mr. Matthews with reasonable notice. The issue is not whether Mr. Matthews is entitled to the LTIP in itself, but rather what damages he is entitled to and whether he was entitled to compensation for bonuses he would have earned had Ocean not breached the employment contract. By focusing narrowly on the former question, the Court of Appeal applied an incorrect principle, resulting in what I see as an overriding error.
(a) Redress for Breach of the Implied Term to Provide Reasonable Notice of Termination
 Insofar as Mr. Matthews was constructively dismissed without notice, he was entitled to damages representing the salary, including bonuses, he would have earned during the 15-month period (Wallace, at paras. 65-67). This is so because the remedy for a breach of the implied term to provide reasonable notice is an award of damages based on the period of notice which should have been given, with the damages representing “what the employee would have earned in this period” (para. 115). Whether payments under incentive bonuses, such as the LTIP in this case, are to be included in these damages is a common and recurring issue in the law of wrongful dismissal. To answer this question, the trial judge relied on Paquette and Lin from the Court of Appeal for Ontario. I believe he took the right approach.
 In Paquette, the employee participated in his employer’s bonus plan, which stipulated that employees had to be “actively employed” on the date of the bonus payout. That language is broadly comparable to that found in the LTIP which, at clause 2.03, requires the claimant to be a “full-time employee” of the company. In Paquette, but for the employee’s termination, the employee would have received the bonus within the reasonable notice period. The motion judge in that case, however, concluded that the employee was not entitled to the bonus because, while he may have been “notionally” employed during the reasonable notice period, he was not “actively” employed and so did not qualify under the terms of the plan.
 The employee’s appeal was allowed. The Ontario Court of Appeal relied principally on its prior decision in Taggart v. Canada Life Assurance Co. (2006), 50 C.C.P.B. 163, concerning a similar question related to pension benefits. In that case, Sharpe J.A. rightly cautioned that courts should not ignore the legal nature of employees’ claims. “The claim is not”, he said, “for the pension benefits themselves. Rather, it is for common law contract damages as compensation for the pension benefits [the employee] would have earned had [the employer] not breached the contract of employment” (para. 16). Consequently, “a terminated employee is entitled to claim damages for the loss of pension benefits that would have accrued had the employee worked until the end of the notice period” (para. 13). With respect to the role of a bonus plan’s contractual terms, Sharpe J.A. explained that “[t]he question at this stage is whether there is something in the language of the pension contract between the parties that takes away or limits that common law right” (para. 20).
 The Court of Appeal in Paquette built upon the approach in Taggart, proposing that courts should take a two-step approach to these questions. First, courts should “consider the [employee’s] common law rights” (para. 30). That is, courts should examine whether, but for the termination, the employee would have been entitled to the bonus during the reasonable notice period. Second, courts should “determine whether there is something in the bonus plan that would specifically remove the [employee’s] common law entitlement” (para. 31). “The question”, van Rensburg J.A. explained, “is not whether the contract or plan is ambiguous, but whether the wording of the plan unambiguously alters or removes the [employee’s] common law rights” (para. 31).
 I agree with van Rensburg J.A. that this is the appropriate approach. It accords with basic principles of damages for constructive dismissal, anchoring the analysis around reasonable notice. As the court recognized in Taggart, and reiterated in Paquette, when employees sue for damages for constructive dismissal, they are claiming for damages as compensation for the income, benefits, and bonuses they would have received had the employer not breached the implied term to provide reasonable notice (see also Iacobucci v. WIC Radio Ltd., 1999 BCCA 753, 72 B.C.L.R. (3d) 234, at paras. 19 and 24; Gillies v. Goldman Sachs Canada Inc., 2001 BCCA 683, 95 B.C.L.R. (3d) 260, at paras. 10-12 and 25; Keays, at paras. 54-55). Proceeding directly to an examination of contractual terms divorces the question of damages from the underlying breach, which is an error in principle.
 Moreover, the approach in Paquette respects the well-established understanding that the contract effectively “remains alive” for the purposes of assessing the employee’s damages, in order to determine what compensation the employee would have been entitled to but for the dismissal (see, e.g., Nygard Int. Ltd. v. Robinson (1990), 1990 CanLII 1991 (BC CA), 46 B.C.L.R. (2d) 103 (C.A.), at pp. 106-7, per Southin J.A., concurring; Gillies, at para. 17).
 Courts should accordingly ask two questions when determining whether the appropriate quantum of damages for breach of the implied term to provide reasonable notice includes bonus payments and certain other benefits. Would the employee have been entitled to the bonus or benefit as part of their compensation during the reasonable notice period? If so, do the terms of the employment contract or bonus plan unambiguously take away or limit that common law right?