What happens when ambiguous facts get resolved via summary judgment and then appealed? One gets decisions like Ariss v. NORR Limited Architects & Engineers, 2019 ONCA 449, which unfortunately add more confusion to the law of termination than clarity.
What happens in an asset sale transaction, if the purchaser / new employer neglects to give actual notice to an employee of the vendor, whom the purchaser intends to employ, that the employee will not be credited for his past years of service with the former employer/vendor once he becomes an employee of the purchaser?
According to a 2018 decision of the Ontario Superior Court of Justice sitting at Ottawa, Ariss v. NORR Limited Architects & Engineers, 2018 ONSC 620 (CanLII), the answer is:
In the absence of notice from new employer/purchaser that an employee will not be credited for his years of service with former employer/vendor, recognition of that service is deemed to be part of employee’s contract of employment with purchaser – regardless of any letter of termination actually received by the employee from the vendor.
On November 24, 2017, in a post titled, Working Notice Inappropriate for Employees on Disability Leave, I blogged about the decision of the Ontario Superior Court of Justice (Hood, J.) in McLeod v. 1274458 Ontario Inc., 2017 ONSC 4073.
As the title of that post suggests, at that time, the Superior Court had found that a period of working notice did not ‘count’ with respect to an employee absent from employment on disability leave.
On March 19, 2018, a three-member bench of the Divisional Court (Swinton, Sachs and Corthorn JJ.) dismissed the employer’s appeal: McLeod v. 1274458 Ontario Inc. o/a Frontier Sales Limited, 2018 ONSC 1866 (CanLII).
“Got to pack my, things and go / Move fast not slow / That dog is mine.” Those are the opening lyrics to the song “The Dog is Mine” by Canadian rapper k-os. It’s a catchy song.
Those lyrics provide a great introduction not only to “The Dog is Mine”, they also provide a great introduction to the subject of whether an employee who voluntarily resigns from his employment is entitled to an earned but not yet paid incentive bonus.
In Bois v MD Physician Services Inc., 2016 ONSC 8133 (CanLII), the Honourable Justice Sylvia Corthorn of the Ontario Superior Court of Justice was tasked with answering the following legal question: If an employee is entitled to earn a bonus payment pursuant to the terms of a written employment contract, but a requirement of that employment contract - and a material condition precedent to the actual payment of the bonus - is that the employee must be “actively employed” on the date that the bonus payment is to be made by the employer, is the employee nonetheless entitled to the receipt of the earned but not yet paid bonus payment if he voluntarily resigns from his employment prior to the date on which the bonus payment is made? Put another way, can you still get your bonus if you quit before it's paid to you?
