



COURT OF APPEAL FOR ONTARIO

CITATION: Bois v. MD Physician Services Inc., 2017 ONCA 857

DATE: 20171108

DOCKET: C63311

Simmons, Rouleau and Brown JJ.A.

BETWEEN

Mark Bois

Plaintiff (Appellant)

and

MD Physician Services Inc., MD Private Investment
    Management Inc. and MD Management Limited

Defendants (Respondents)

Morgan Rowe, for the appellant

Ashlee L. Barber, for the respondents

Heard: October 20, 2017

On appeal from the judgment of Justice Sylvia Corthorn of
    the Superior Court of Justice, dated December 28, 2016.

REASONS FOR DECISION

OVERVIEW

[1]

This appeal raises a single issue: Did the
    motion judge err in concluding the active employment requirement in the
    respondents Variable Incentive Plan (VIP) under which the appellant, Mark
    Bois, was awarded a bonus did not conflict with ss. 11(5) and 13(1) of the
Employment
    Standards Act, 2000
, S.O. 2000, c. 41 (
ESA
)?

FACTS

[2]

The material facts are not in dispute. The
    appellant worked for the respondents from August, 1997 until his resignation in
    October 2011.

[3]

In 2009 and 2010 the appellant was awarded
    bonuses under the respondents VIP. Under the plan, a bonus awarded for a year
    was payable in equal installments over the three years following the calendar
    year for which the bonus was awarded. Installment payouts would be made in
    February or March of each year.

[4]

The 2007 VIP stated:

In the event a Participants continuous Active
    Employment terminates, either voluntarily or involuntarily and whether for
    cause or not for cause, the Participant will immediately forfeit any
    entitlement to any payments under this plan whether attributable to prior years
    or to the current year.

[5]

The 2011 VIP that replaced the 2007 VIP effective
    January 3, 2011 contained a similar provision: Any employee who has left the
    organization or has given notice to leave the organization on or before the
    incentive payment date will not be eligible to receive a payment.

[6]

A March 16, 2010 letter from the respondents
    signed and agreed to by the appellant stated:

In any given year, you must be a permanent
    employee of the CMAH Group of Companies on December 31 of the year for which
    the incentive is paid and continue to be so employed on the payment date(s) to
    receive a payment. Any employee who is no longer employed with the organization
    or has given notice of termination prior to the payout date will not be
    eligible to receive a payment.

[7]

The appellant resigned before the pay-out dates
    for the final installment of his 2009 bonus and two installments of his 2010
    bonus. The future installments totaled $114,916.79.

[8]

The appellant commenced this action seeking
    those installments. The motion judge granted the respondents summary judgment
    dismissing his action.

ISSUE

[9]

The appellant submits the motion judge erred in
    her interpretation of ss. 11(5) and 13 of the
ESA
, which state:

11(5) If an employees employment
    ends, the employer shall pay any wages to which the employee is entitled to the
    employee not later than the later of,

(a) seven days after the
    employment ends; and

(b) the day that would have been
    the employees next pay day.

13(1) An employer shall not withhold
    wages payable to an employee, make a deduction from an employees wages or
    cause the employee to return his or her wages to the employer unless authorized
    to do so under this section.

[10]

The appellant contends that where a bonus has
    been awarded for a year, but at the time of the employees resignation future
    bonus installments remain to be paid-out, s. 11(5) of the
ESA
effectively operates to accelerate the employers obligation to pay-out future
    installments, notwithstanding language in an incentive plan requiring the
    employee to be actively employed at the date of any future pay-outs. To the
    extent that the terms of the VIPs sought to disentitle the appellant to the
    future installments, they were void as they contravened s. 13(1) of the
ESA
.

ANALYSIS

[11]

We are not persuaded by the appellants
    submission.

[12]

The motion judge interpreted the VIPs as
    requiring an employee to be actively employed with the respondents on the date
    of a bonus installment pay-out in order to receive the installment. If the
    employee resigned before an incentive payment date, he would not be eligible to
    receive a payment: at para. 61. She also held the appellant had notice of the
    active employment eligibility requirement and he knew or ought to have known
    when he resigned that he would be forfeiting entitlement to the bonus: at para.
    66. Those findings are not challenged on appeal.

[13]

The motion judge construed s. 11(5) of the
ESA
as requiring the respondents to determine whether, at the time the appellants
    employment ended, he was entitled to the payment of any bonus installments
    based on the wording of the VIPs and the length of his notice period: at para.
    101. She concluded the respondents rightfully and correctly determined that by
    reason of his resignation the plaintiffs entitlement to the Bonus was
    extinguished: at para. 102.

[14]

We see no error in the motion judges approach
    or conclusion.

[15]

It was open to the parties to agree how and when
    any bonus was declared, earned, accrued and would be payable:
Kielb v.
    National Money Mart Company
, 2017 ONCA 356, at para. 12.

[16]

By the terms of the VIPs, the appellant was not
    entitled to the three bonus installments whose pay-out dates fell well after
    the date of his resignation. While those three installments would constitute
    wages payable upon each of the future pay-out dates, they were not wages to
    which the appellant [was] entitled when he resigned and his employment ended.
    Accordingly, we see no basis to interfere with the motion judges conclusion
    that where, as in circumstances such as those of the present case, the entitlement
    to an incentive plan payment does not arise until after an employees
    resignation or the expiration of the reasonable period of notice of
    termination, a plans requirement that the employee be actively employed at the
    time of a future pay-out does not contravene s. 11(5) of the
ESA
.

[17]

Nor does such an active employment provision
    contravene s. 13(1) of the
ESA
, as the future pay-outs do not
    constitute wages payable to an employee at the time of his resignation.

DISPOSITION

[18]

For the reasons set out above, we dismiss the
    appeal.

[19]

The respondents are entitled to their costs of appeal on a partial
    indemnity basis fixed at $5,000, inclusive of disbursements and all applicable
    taxes.

Janet
    Simmons J.A.
Paul Rouleau J.A.
David Brown J.A.


