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CONTRACT OF EMPLOYMENT - Express terms - Remuneration - Profit-sharing

Thursday, September 05, 2019 @ 8:46 AM  


Lexis Advance® Quicklaw®
Appeal by RBC Dominion Securities from the damages awarded in respect of incentive plan compensation to the respondent employee in his wrongful dismissal action. At trial, the appellant conceded it terminated the respondent without cause. The trial judge found the respondent was entitled to 18 months’ notice, which the appellant did not appeal. During his employment, the respondent participated in a profit-sharing plan. The plan did not contain clear language about the choice of foreign exchange methodology to determine payments. After the respondent’s termination, the appellant wound down the funds and distributed the proceeds. The respondent received his full share of the profits realized upon the disposition of the funds. The trial judge awarded the respondent $953,393 in respect of the lost opportunity to earn entitlements under the plan during the 18-month notice period and $190,789 in respect of the respondent’s share of investment proceeds under the plan for the period 2005 to 2013, calculated using the respondent’s foreign exchange methodology of using the exchange rate as of the date of the investment.

HELD: Appeal allowed in part. The trial judge erred by ignoring key provisions of the plan relating to what the respondent would have earned during the notice period. The payment the respondent received for his share of profits reflected what he would have earned by way of incentive plan compensation had the appellant given proper notice of the termination. The respondent was not entitled to any common law damages in respect of the plan. The lost opportunity award was set aside. The trial judge’s conclusion that it was not fair or appropriate for the appellant, after the fact, to seek to apply a methodology that had the effect of exposing participants to significant foreign exchange risk was firmly supported by the evidence. The award concerning the foreign exchange methodology was affirmed. Dissenting reasons were provided.

Manastersky v. Royal Bank of Canada, [2019] O.J. No. 3767, Ontario Court of Appeal, K.N. Feldman, D.M. Brown and B. Miller JJ.A., July 18, 2019. Digest No. TLD-September22019007