An Ontario Superior Court judge has ruled that a former senior technical employee is entitled to eight months’ pay in lieu of notice after his employment was terminated by Salesforce.com Canada Corporation, finding the termination clause in his employment contract unenforceable under the Employment Standards Act (ESA).
The court granted summary judgment in favour of A.B., who had worked for Salesforce for approximately eight years before his employment was terminated on January 4, 2023, as part of a workforce reduction affecting about 10 per cent of the company’s employees.
Termination clause deemed unenforceable
The court found the termination clause in A.B.’s employment contract was ESA non-compliant due to ambiguities created by conflicting language in the employment documentation.
“There is no practical way that an employee in Ontario could be aware, when signing the contract, of the terms that would govern his termination,” wrote the court in its decision.
The court took issue with Salesforce’s use of a standardized contract for employees in multiple jurisdictions, noting the ambiguity in documentation that A.B. was required to sign prior to employment. The contract simultaneously claimed the ability to terminate employment “at will” while stating this provision would not apply in certain jurisdictions outside the U.S.
“It is impractical to expect a potential employee, who has not yet started employment, to consult the future employer’s lawyer before signing an employment agreement to understand what kind of misconduct, if any, is cause for termination,” the court stated.
Notice period calculation
Although A.B. sought a 14-month notice period, the court determined that an 11-month period was appropriate based on the following Bardal factors:
- Length of service: The court rejected A.B.’s claim that he was induced to join Salesforce, noting that a recruiter had simply sent him a LinkedIn message before he applied for the higher-paying position. His length of service was determined to be eight years.
- Character of employment: While A.B. argued he held a specialized, managerial position, the court found he was a senior-level technical employee without authority to hire, fire or discipline employees.
- Availability of comparable employment: The court acknowledged that there were other large-scale layoffs in A.B.’s sector at the time, creating significant competition for jobs in his field.
Reduction for failure to produce Notice of Assessment
The court reduced A.B.’s notice period by three months due to his refusal to produce his Notice of Assessment during the mitigation period, drawing an adverse inference that the document would not support his income figures.
“In my view, there can be no acceptable reason for such a refusal,” the court stated. “Obviously, A.B.’s income during the mitigation period is a significant issue in this dispute. Salesforce is entitled to proper evidence of what that income was.”
The court noted that A.B. attempted to produce the Notice of Assessment just two days before the motion was to be argued, five months after initially refusing, but Salesforce objected to this late submission.
Compensation calculation
In addition to eight months of pay in lieu of notice (with amounts already paid to be deducted), the court awarded A.B.:
- Payment of his stub bonus for fiscal year 2023
- Pro-rated share of his bonus for the portion of the notice period falling within fiscal year 2024
- Benefits calculated at 5% of his base annual salary for five months and 10% for the remaining month
- Pro-rated RRSP contributions from March 24, 2023, onward
Despite Salesforce’s argument that A.B. was ineligible for bonus payments under its plan because he would not be an active employee when bonuses were paid, the court found A.B. was entitled to his 2023 bonus since “he ought to have been employed in April 2023, the date on which the bonuses were paid out.”
The court also ruled that A.B. was entitled to a pro-rated bonus during the notice period, noting that while Salesforce claimed the bonus plan was available to all employees, it produced no evidence that A.B. had acknowledged the plan, which did not accompany his employment contract.
Bad faith damages denied
The court rejected A.B.’s claims for punitive damages, aggravated damages, or damages for breach of the duty of good faith in contractual relations.
A.B. had learned of his termination while on vacation when a colleague texted that he had been “deactivated on Slack.” There was no telephone call or meeting related to the termination, which A.B. argued was “callous and impersonal.”
However, the court found that “the circumstances surrounding A.B.’s termination, while not ideal, do not demonstrate bad faith on Salesforce’s part,” noting that as a large employer terminating a significant number of staff, it was not possible to conduct individual termination meetings.
The court concluded: “Salesforce was managing a large layoff. It may have done so imperfectly, but it did not do so in a way that attracts moral, aggravated, or punitive damages.”
The court also denied A.B.’s request for reimbursement of expenses related to skills upgrading during his job search, finding he had not demonstrated this “upskilling” was necessary to find employment.
For more information, see Boyle v. Salesforce.com, 2025 ONSC 2580 (CanLII).
