Former BMO Nesbitt Burns advisor awarded 24 months’ notice, but no bad-faith damages and no compensation for book of business

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A former investment advisor at BMO Nesbitt Burns has been awarded 24 months’ notice but the Ontario Superior Court of Justice declined to award damages for the loss of opportunity to sell her book of business or to tack on punitive damages.

The advisor, BR, was dismissed without cause at 54 years old after working for the company for approximately 24 years.

BR sought compensation for lost commissions, the inability to sell her business book, and alleged bad faith conduct by her employer. However, the court’s findings were mixed. While it ruled in her favour regarding the unjust nature of her dismissal, awarding her a 24-month notice period (or $240,091 in lost commission damages after mitigation and other deductions) her claims for damages related to the sale of her business book and for bad faith conduct were not substantiated.

Copying of emails

The trial revealed that prior to her termination, BR had transferred thousands of emails containing confidential client information to a USB key, which led the defense to claim a justifiable cause for dismissal.

“More than 4,000 e-mails and documents attached to e-mails were copied,” the Court said. “The e-mails included e-mails from clients that (BR) had forwarded to her assistants.  Some of the e-mails and their attachments contained personal information of clients such as social insurance number, date of birth, description of assets, investment objectives, driver’s licence, etc.  Some e-mails included communications with clients about particular trades.”

The employer was unaware that she had copies of these emails, and — when it became aware during examination she possessed them — BMO Nesbitt Burns amended its statement of defence to allege after-acquired cause.

Nevertheless, the judge dismissed this argument.

Career of achievements and challenges

BR’s career at BMO Nesbitt Burns was marked by both achievements and challenges. She developed her wealth advisory business from the ground up, even purchasing at least one book from another advisor.

However, she encountered performance issues in 2012 and 2014, leading to coaching sessions with her branch manager. Despite participating in the company’s Business Succession Agreement (BSA) Program, which facilitated client account transitions during an advisor’s retirement, BR’s work environment was beset by staffing problems and personal hardships, including family illnesses and deaths, which impacted her performance and ultimately led to her termination.

In December 2017, she was sent a disciplinary letter regarding her performance. It documented alleged unprofessional behaviour, including yelling and swearing in the branch; rude tone when speaking to support staff; inappropriate conduct such as throwing papers at colleagues; and entering a colleague’s desk without permission.

Termination

BR was let go on Feb. 20, 2018. The termination letter stated her position had been eliminated as a result of restructuring, and she was provided with a severance package. At the time of termination, she was paid $204,395 as pay in lieu of notice and severance pay.

She did not receive any payment in relation to her book of business and was not reimbursed for the funds she paid out of her commissions to purchase a colleague’s book of business, which was about $333,000.

BR joined RBC Dominion Securities Inc., about three weeks after being let go, where she faced the arduous task of rebuilding her clientele. Despite the challenge, she managed to attract clients with assets over $39 million to RBC within a year and a half, earning about $205,000 in commissions between October 2018 and February 2020.

BR argued that her commissions during the notice period would have been $774,302. The Court reduced it for two reasons — first, to take into account expenses she would have had to pay to BMO Nesbitt Burns before payment of her income (i.e., assistant expenses); and second to account for “negative contingencies.”

It reduced the commissions by about 17.5 per cent, rounding the figure up to $640,000. From that, it deducted the $204,395 in severance pay she already received from BMO Nesbitt Burns and the money she earned at RBC during the notice period ($205,397). It then added $9,883 as repayment under an early termination policy — which ended up being $240,091.

For more information, see Ratz-Cheung v. BMO Nesbitt Burns Inc., 2024 ONSC 161 (CanLII).

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