Employment Case Update: Boyer v. Callidus Capital

The Court of Appeal released its decision that (hopefully) ends the Boyer v. Callidus Capital Corporation, 2025 ONCA 79 saga. The history of all of the reported cases can be found here.  These decisions raise employment law issues that can guide both employers and employees.

 These cases sets out a scenario of what a resigning employee is entitled to, what happens when an employer makes unjust allegations of just cause, and the cost (both time and money) of litigating these matters.  In the end, the employer had to pay the employee a total of $2,185,045.12 (of which $353,111.22 was legal costs to the employee) plus their own counsel’s legal fees. This litigation was not a good return on investment for the employer.  

 It is an 8-year long employment litigation; starting on Feb 6, 2017. The Court of Appeal released its decision on Feb 4, 2025. Do not know yet if leave to appeal to the Supreme Court will be sought.  To date the employee and employer litigation timeline is:

1. Claim by employee for constructive dismissal and other entitlements
   
2. Defence alleging employee resigned (not constructively dismissed) and counterclaim for $150 million(!) for breach of fiduciary duty. The employer alternatively asserted just cause if the Court found the employee had been constructively dismissed and had not resigned
   
3. Two motions brought by the employee
   
   
   1. leave to amend the Claim to add deferred bonus amounts; and
      
   2. anti-SLAPP motion to dismiss the employer's counterclaim.
      
   3. Motions heard (April 21, 2022). Both motions dismissed.  $25,000 in costs ordered paid to the employee.
4. Appeal by employee of decision on the two motions (Feb 24, 2023). Court of Appeal overturned the denial of the order to amend and sent back to Superior Court of Justice for Summary Judgement motion. Court of Appeal ordered costs of the motions at $273,111.22 inclusive!
   
5. Amended Statement of Defence and Counterclaim delivered (Sept 2023).
   
6. Summary Judgment motion (Oct 5, 2023).
   
7. Employer appeals Summary Judgement decision (Oct. 31, 2024).  Court of Appeal found the employee resigned and was not constructively dismissed, but was entitled to his unused vacation, unpaid bonus, and value for stock options. The just cause defence Callidus has no relevance to employees  entitlement to the amounts actually awarded by the motion judge.
   
8. Court of Appeal released its decision (Feb. 4, 2025).  Employee had resigned, no constructive dismissal – therefore no need to deal with the allegations of just cause, the other unpaid entitlement claims were owing.  All inclusive costs of $55,000 awarded to the employee
   
   

   Payout by the employer to the employee as reported:
   

   1. $93,076.92 for 22 weeks of unused vacation;
      
   2. $525,000 plus interest for unpaid and deferred bonus amounts;
      
   3. $1,213,856.98 for the value of lost stock options;
      
   4. $273,111.22 all inclusive full indemnity costs of the anti-SLAPP motion;
      
   5. $25,000 costs to the employee for the appeal of the two motions;
      
   6. $55,000 all inclusive for the appeal of the Summary Judgement decision.

Total payout to Employer: $2,185,045.12.

 Key Takeaways

 Employers - Have written policies for everything.  Because the employer could not point to written policies regarding what happened to an employee’s bonuses, stock options, vacation pay on resignation, the Court held the employee was entitled to have them paid out. Reach out to employment counsel to assist you in drafting and implementing them.

 The employer also made the mistake of making unfounded unjust claims; starting by claiming $150,000,000 in damages. Do not assert unfounded counterclaims. Even if you win a battle (court found employee had resigned but was not constructively dismissed), you can still lose the war.

 Other employees are watching. Treating a departing employee unfairly or making unfounded allegations of cause will scare your current employees.  And you might just end up with a reported decision for everyone to read.

 Employees - Reach out to counsel to see what claims you might have at an early stage; even while still employed. Counsel can advise and guide employees during hard times in their employment helping them understand how to navigate possible constructive dismissal scenarios.

 Employment counsel can analyse your issues and advise you on your entitlements.  In this case, even though he resigned – he was still entitled to his bonus, stock options, and vacation pay.  Make sure you verify your entitlements with counsel before just walking away or signing a Release. 

Now comes the hard part – realizing on a Judgement. It is easier to be paid on a settlement than it is on a contested Judgement. 

 For both Employers and Employees - Litigating is expensive and time consuming. Keep your return on investment top of mind. Although this litigation is understandable given the amount of money at issue, mediation and settlement would have provided a quicker, cheaper, confidential, and more conclusive outcome to both.