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Commissions

Substratum of employment contract had not eroded and termination provisions were otherwise enforecable

Jurisdiction: - British Columbia

The issue in Wernicke v. Altrom Canada Corp., 2009 BCSC 1533, was whether the employer could rely on the termination provisions in the employment contract or whether the employee was entitled to common law reasonable notice.

Background

The employee was a chartered accountant in his early 40s, had 12 years of service and was the Chief Financial Officer & VP Finance when his employment was terminated without cause as part of a corporate reorganization in January 2009.

The employee signed a letter agreement at the time of hiring that contained the following termination provisions:  read more »

Does an employer have to produce a third-party investigator's report in the course of litigation?

Jurisdiction: - British Columbia

Does an employer have to produce a third-party investigator's report in the course of litigation?

The BC Supreme Court addressed this issue recently in Bank of Montreal v. Tortora, 2009 BCSC 1224, where the defendant former employees brought an application seeking that the Bank of Montreal (the "Bank"):

  1. produce the documents in a third-party investigator's files; and
  2. provide a list of documents over which it claimed privilege that satisfied the requirements of Rule 26(2.1) (i.e., list the documents individually and describe them so that the validity of the privilege claim could be tested).

Background

The Bank dismissed two long-term employees on December 3, 2008 and filed a lawsuit against them on January 6, 2009, claiming that:  read more »

Notice period reduced on basis employee might find new employment after trial but before end of notice period

Jurisdiction: - British Columbia
Sector: - Manufacturing

In the Jamieson v. Finning International Inc. 2009 BCSC 861 wrongful dismissal case, the 53 year old former employee had 20 years of service and had been the Millyard Systems Manager when his employment was terminated due to 'economic events". The company offered him a severance package based on a 12 month notice period, which he rejected.

The BC Supreme Court awarded him a notice period of 19 months, but reduced it by one month in consideration of the fact that the legal action had been pursued by way of a summary trial just 6.5 months after the employee had been dismissed and the employee might find new employment before the end of the 19 month notice period

Damages

The parties were in agreement that the employee's compensation over the notice period should be based, among other entitlements, on $84,000 in base salary and a $10,920 annual bonus.  read more »

When does a cut in remuneration amount to constructive dismissal?

Jurisdiction: - British Columbia

At what point can a reduction of an employee's remuneration be considered a fundamental breach of the employment contract and the basis of a constructive dismissal?

In the recent decision of Pavlis v. HSBC Bank Canada, 2009 BCSC 498, the BC Supreme Court reviewed this issue, finding that in previous cases:     read more »

BC Appeal Court reviews law on notice period for short service employees and rights under stock option plans

Jurisdiction: - British Columbia
Sector: - High Tech

In Saalfeld v. Absolute Software Corporation, 2009 BCCA 18, the BC Court of Appeal addressed:

  1. the notice period owed to a short service employee; and
  2. an employee's entitlment to stock options during the notice period.

Notice Period

The employee's employment was terminated without cause after approximately nine months of service. She had held a senior software sales position, was 35 years old and earned a base salary of $60,000 with target earnings of $100,000 inclusive of commissions.

The BC Court of Appeal upheld the trial judge's award of a five month notice period, finding that it was not unreasonable given that it took the employee nine months to secure new employment.

However, in a statement that will bring comfort to employers, Madam Justice Huddart  also stated that:  read more »

Court discusses duties owed by financial advisors when they switch brokerage houses

Jurisdiction: - British Columbia

In Stenner v. ScotiaMcleod  2007 BCSC 1377, the court discussed the duties owed by employees in the financial services industry when they switch brokerage houses.

Facts

The plaintiff was a financial consultant and investment advisor who had gained some prominence through a radio show.

He had moved his "book of business" (i.e., client accounts) to what is now Merril Lynch in 1995 and then to National Bank Financial ("NFB") in 2000.

One of the individual defendants was the plaintiff's daughter. She had started working for her father in 1991, had followed him when he changed brokerage houses, and continued to acquire a greater role in growing and managing the plaintiff's "book of business" as the years went by.

The other individual defendants were the daughter's husband and an administrative employee.

The plaintiff and the individual defendants were all employees of NBF at the time in question, and each received a salary and employee benefits from NBF.  read more »