A recent ruling by the Ontario Superior Court of Justice has offered some clarity on how courts may assess notice periods and compensation entitlements for employees who hold executive-level roles for short tenures.
In this wrongful dismissal dispute, the plaintiff, H.B.S., served as a vice-president of sales at GoSecure, a U.S.-based security software company, for only 10 months before being terminated without cause. The court, presented with a motion for summary judgement, concluded that the case could be resolved without a full trial and ultimately determined that H.B.S. was entitled to six months of common law notice — including base salary, commissions and benefits — less certain offsets, for a total of $163,659.92 plus pre-judgement interest.
According to the court documents, H.B.S. was 51 at the time of dismissal and had joined GoSecure in an executive sales position. He had come from another software company, which he describes as secure and comparable in both duties and compensation.
Termination clause
The employer conceded from the outset that its written termination clause — “…should (GoSecure) terminate your employment you will be given notice as is stipulated by Ontario Labour Standards” — was unenforceable under Ontario law. That concession opened the door for a common law reasonable notice determination, with the core questions revolving around (1) the length of the notice period, (2) the calculation of lost sales commissions during that period, and (3) whether H.B.S. had been induced to leave a stable job.
In its written reasons, the court referenced guidance from a Court of Appeal precedent in which a “straight forward claim for wrongful dismissal without cause…strikes me as the type of case usually amenable to a Rule 20 summary judgement motion.” Relying on that observation, the court found there was no need for a trial, as the necessary evidence could be evaluated through the affidavits, cross-examinations, and submissions on record.
Inducement
At the heart of the dispute was whether H.B.S. had been induced to join GoSecure from a prior position, thereby entitling him to a longer notice period. While the court accepted that a conversation with a senior executive at GoSecure prompted him to make the move, it ultimately held that the overall circumstances did not rise to the level of active recruitment.
In the words of the decision, “I am unable to conclude the plaintiff was induced or actively recruited to join [the defendant]. Rather, he was advised of an opportunity by a [defendant] senior manager, a person he knew professionally and he chose to follow up this opportunity.”
Sales commissions
Another significant point was the question of sales commissions. The court recognized that commissions formed “an essential component” of the remuneration package. When determining the amount that would have been earned during the notice period, the court noted: “It is common practice in the caselaw for courts to estimate a terminated employee’s commission income based on averaging pre-termination earnings.”
Evidence showed that, during his approximately 10 months of employment, H.B.S. had earned a monthly average commission of just under $13,800. Because the defendant did not provide clear evidence to contradict this projection, the court accepted the monthly average as the best indicator of potential commissions for a six-month notice period.
‘Remarkable range’ of notice periods
On the question of how to fix that notice period, both sides presented case law summarizing awards for short-service executives of similar age. The court observed that “there is a remarkable range in notice periods awarded by courts to executives with short periods of employment,” citing decisions on both ends of the spectrum.
In this instance, the judge settled on six months, explaining that “the plaintiff’s sales experience and skills were not highly specialized with the result he was in a strong position to market his skills as a senior sales manager broadly.” The plaintiff found another sales management role after about 11 months of unemployment, thus demonstrating what the court described as a relatively smooth transition.
Still, the court acknowledged that, at the time of his termination, the plaintiff had been 51 years old and had given up a secure position elsewhere in the industry. These factors weighed against awarding a very short notice period. Balancing all of the “Bardal factors” — age, character of employment, length of service, and availability of comparable positions — the court concluded that six months was a fair assessment.
Breaking down the damages
The final damages award was broken down methodically. First, the court established a base salary portion for six months at $15,833.33 per month (total $95,000). Second, it added six months’ worth of commission payments at $13,796.41 per month (total $82,778.46). It then factored in 10 per cent of salary for benefits ($9,500) and six months’ worth of a monthly cell phone allowance at $110 ($660). From that subtotal, the court deducted a one-week salary payment ($3,653.85) that had been provided upon termination, and $20,624.69 in mitigation earnings that the plaintiff had made elsewhere. The net amount reached $163,659.92. The court also ordered pre-judgement interest backdated to the date of termination.
Throughout its analysis, the court stressed that this was a straightforward “without cause” dismissal, with no allegation of misconduct or poor performance. It also highlighted that the defendant had, by its own admission, downsized approximately 60 employees for economic reasons. While the court stopped short of describing the position as highly specialized, it recognized that the role’s status as a vice-president did imbue it with a certain degree of seniority and warranted more than the two to four months of notice sought by the defendant.
For more information see Shelp v. GoSecure Inc., 2025 ONSC 49 (CanLII).
