View cases - Stewart McKelvey

Page: 24[118] Mr. Chandran claims a pro rata bonus for the period November 1, 2006 to September 12,2007. The Bank argues that he is not entitled to such bonus as the policy states:“TO BE ELIGIBLE FOR AN ANNUAL BONUS, AN EMPLOYEE MUST:…Be employed by the Bank at the end of the fiscal year (at the end of October)Be employed by the Bank when the bonus is paid (on January 11, 2008)”[119] This policy is clear and unambiguous and therefore its terms should prevail. It does notcontemplate payment of a pro rata bonus for a part year of work.[120] It is argued that Mr. Chandran called no evidence regarding bonus. Mr. Chandranadmitted during cross-examination that he was aware of this policy and understood that to beeligible for a bonus an employee had to be employed by the Bank at the end of the fiscal yearand at the time the bonus is awarded. His employment was terminated prior to the end of thefiscal year and prior to the bonus being awarded in January 2008. Mr. Chandran relies on thecase of Schumacher v. TD Bank, 147 D.L.R. (4 th ) 128 (Ont. Ct. J. (Gen. Div.)). at paragraphs221-225, to support his argument.2011 ONSC 777 (CanLII)[121] Mr. Chandran has not however, established the evidentiary base required. In Schumacherthe court held at paragraph 225 that:“The PCP provided that “recipients must be actively reemployed by the Bank atthe time the award is paid to be eligible for payment”. Mr. Harrison’s position isthat Schumacher ceased to be actively employed on February 8, 1995, andconsequently he is not eligible for consideration in the PCP for either period. Ihave already concluded that Schumacher was constructively dismissed, as he wasterminated without cause and without notice. His involuntary inability to complywith the condition of the PCP ought not to be justification for the Bank indeclining the award of the bonus as part of Schumacher’s damages. If that werethe case, an employer would achieve a significant advantage by wrongfullyterminating an employee because the severance package would not have toinclude any bonus. Where the bonus was promoted as an integral part of theemployee’s cash compensation, it would be inappropriate and unfair to theemployee to be deprived of the bonus by reason of the unilateral action of theemployer. I do not agree with the position taken by the Bank on this third issue.Schumacher remains entitled to consideration of a bonus, both for the period heworked and the notice period.” [emphasis added][122] Mr. Chandran did not present any evidence to establish that the bonus “was promotedas an integral part of his compensation”. I therefore find that he has not met his burden ofproving his damages in this regard.