Supreme Court decision aggravates termination clause problems for employers
Julius Melnitzer | November 2, 2020 A recent decision from the Supreme Court of Canada suggests the test for employers seeking to limit recovery for unlawful termination damages related to long-term incentive plans may be insurmountable in practice. The mid-October ruling concluded that David Matthews was entitled to a payout under his incentive plan when the company was sold 13 months after he’d been constructively dismissed as vice-president of Ocean Nutrition Canada Ltd., a Nova Scotia-based nutritional supplement manufacturer. Read: Court of appeal ruling highlights language in incentive plans This despite the fact the long-term incentive plan: required Matthews to be a “full-time employee” at the time of sale; stipulated the plan would be “of no force and effect” when his employment ceased; stated the “no force and effect” clause applied regardless of whether Matthews resigned or was terminated “with or without cause;” and provided the plan wasn’t to be “calculated as part of (Matthews’) compensation for any purpose, including in connection with the employee’s resignation or in any severance calculation.” Although the court did clarify the law by reconciling conflicting decisions from various provinces, employers remain in a bind as to language that will relieve their long-term incentive plan obligations after termination....