How is commission income addressed when calculating severance under Ontario employment law?
In Shelp v. GoSecure Inc., 2025 ONSC 49, the Honourable Justice Charles T. Hackland of the Ontario Superior Court of Justice sitting in Ottawa affirmed that “it is common practice in the case law for courts to estimate a terminated employee’s commission income based on averaging pre-termination earnings.”
Can an employee be awarded aggravated damages for his employer’s bad behaviour if that bad behaviour precedes his termination?
While for a long time the prevailing wisdom was that aggravated and punitive damages could only be awarded for behaviour “during the course of dismissal”- which are the words used by the Supreme Court of Canada in Wallace- recent case law seems to suggest that such timing may not be necessary.
For example, in Koshman v. Controlex Corporation, 2023 ONSC 7045, the Honourable Justice Charles T. Hackland of the Ontario Superior Court of Justice held that the employer’s bad behaviour in the two months preceding an employee’s summary dismissal could substantiate an award of aggravated damages.
And, if that wasn’t enough of a hook to get you to keep reading, what if I mentioned that the employer’s poor behaviour included its telling clients that it believed that the former employee may be implicated in murdering the company’s founder?
