An Ontario Superior Court judge has ruled that a former director at the Ontario Research and Innovation Optical Network (ORION) is entitled to more than $58,000 in damages after determining the employer failed to provide reasonable notice of termination and improperly withheld commission payments.
The court found that the director — K.S., who joined ORION in 2017 and was terminated without cause in 2019 — was entitled to six months of reasonable notice and unpaid commissions based on a pre-existing employment agreement. While the court rejected his claim for over $600,000 in commissions under an unapproved draft plan, it found he was owed commissions of up to 15% of his base salary based on consistent conduct and documentation from ORION.
Justice Parghi awarded K.S. $58,419.52, less statutory deductions, covering lost salary during the notice period, loss of benefits, and unpaid commissions.
Six-month notice period granted despite two years’ service
At termination, K.S. was 49 years old and had worked at ORION for just over two years, first as Senior Product Sales Solution Manager and later as Director, Products and Business Solutions. He was paid statutory entitlements and an additional 2.5 weeks’ salary.
ORION argued that no additional notice was required, citing the termination provisions in the signed offer letter. However, the court found those provisions unenforceable under the common law and awarded six months’ notice, citing his senior role and compensation level.
“There are numerous cases in which the courts have awarded five or six months of notice to individuals close to [K.S.] in age and with similar levels of job responsibility,” the decision stated.
Employer required to pay commissions, but not under draft plan
A significant portion of the dispute centred on commissions K.S. claimed he earned. He sought $611,917 based on a 2019 draft commission plan he said governed his compensation. ORION denied the plan was ever approved or implemented.
The court agreed with ORION, noting the plan was marked “DRAFT,” never signed, and not formally adopted. Several senior ORION staff testified consistently that the plan was subject to approval and ultimately abandoned. The court also found the draft plan lacked clarity and certainty.
“The Draft Commission Plan does not constitute a proper amendment of the Employment Agreement,” the court ruled. “Its language does not describe the new, amended commission plan adequately to give the parties any certainty as to its terms.”
Nonetheless, the court concluded K.S. was entitled to commissions of up to 15% of his base salary, based on the original employment agreement and the parties’ conduct.
“ORION understood itself to be giving him a commission of 15% or up to 15% of his base salary. It held itself out to [K.S.] and the world as doing so.”
Supporting that finding were three employment confirmation letters issued between 2017 and 2019 that explicitly referred to 15% commission eligibility. ORION also made payments to K.S. in 2018 and 2019, which the court concluded were structured as commissions.
Calculation of damages
The court awarded damages based on lost wages and commissions during the six-month notice period. K.S. found new employment about four months after termination, at a slightly reduced salary. The court applied a standard mitigation deduction for this period.
Breakdown of the damages awarded:
- Damages in lieu of notice: $48,266.58
- Loss of benefits (10% of salary for 24 weeks): $6,732.00
- Unpaid commissions (based on prior years’ averages): $16,043.44
- Less amounts already paid at termination: $12,622.50
Total: $58,419.52, subject to statutory deductions.
The court rejected additional claims advanced at trial but not pleaded, including allegations of bad faith and claims for special damages.
“Little or no evidence was tendered in support of these claims, and I am of the view that they have no merit,” Justice Parghi stated.
Employer conduct contradicted its defence
Throughout the ruling, the court emphasized ORION’s inconsistent positions, particularly its decision to issue compensation letters referencing the 15% commission while later denying such entitlements. It also criticized ORION’s initial refusal to acknowledge any notice entitlement, which was only amended during trial.
“The letters were sent by ORION’s Chief Executive Officer and President,” the court noted. “All this conduct unequivocally supports the view that [K.S.] was entitled to a commission of up to 15%.”
The court directed the parties to resolve costs within 30 days or return for further direction.
For more information, see Salam v. Ontario Research and Innovation Network, 2025 ONSC 1839 (CanLII).
