Warren v. Canaccord Genuity Corp., 2026 ONSC 547 (CanLII)
Background
In Warren v. Canaccord Genuity Corp., which was a wrongful dismissal action, the Ontario Superior Court of Justice awarded the plaintiff more than $2.5 million in damages. Significantly, the court awarded the plaintiff damages for his bonus over his notice period of 21 months using the “comparator approach” rather than the average of his bonuses over the last three years of his employment.
The Plaintiff’s Employment
The plaintiff worked as an investment banker in the mining group of Canaccord Genuity Corp. At the time of his termination in 2019, he held the position of Managing Director of the mining group, he was 52 years old and he had been employed by Canaccord Genuity Corp. for 18 years.
In the years prior to his termination, the plaintiff’s base salary did not increase and a substantial portion of his annual earnings consisted of his bonus. The plaintiff’s bonus was determined by the plaintiff’s performance as well as the size of Canaccord Genuity Corp.’s capital markets pool.
The plaintiff’s base salary was $150,000. However, his bonuses fluctuated significantly. Between 2010 and 2019, his annual bonus was as low as $240,000 and as high as $3,025,000. In the last three years of his employment (2017, 2018, 2019), the plaintiff’s annual bonuses were $665,000, $810,000 and $540,000, respectively.
Damages
The court held that the plaintiff’s reasonable period of notice was 21 months and found that the plaintiff took reasonable steps to mitigate his damages. With respect to the plaintiff’s bonus entitlement over his notice period, two different valuation methods were advanced by the parties. The defendant argued that the plaintiff was entitled to the average of the bonus amounts of his last three years of employment while the plaintiff argued that a comparator approach should be used.
The court rejected the averaging approach advanced by the defendant. The court applied the comparator approach finding that it awarded the plaintiff as close as possible to the bonus he would have earned had he remained employed by the defendant and treated fairly. The court held that the comparator approach was appropriate in this case because:
- It more accurately captured the significant fluctuations in the plaintiff’s bonuses;
- There was evidence before the court of the bonuses of the plaintiff’s former colleagues as direct comparators;
- It reflected the booming mining market conditions and the defendant’s strong performance over the notice period; and
- The plaintiff’s bonuses in 2017, 2018 and 2019 were not an accurate reflection of his performance due to poor company leadership and dysfunction. The plaintiff’s colleagues during these years received higher bonuses despite bringing in less revenue.
The court held that over the notice period, the plaintiff was entitled to $262,500 on account of his base salary and $4,383,866.47 on account of his bonus. After the amounts the plaintiff had already received from the defendant, the deductions for the defendant’s deferred compensation which applied to the plaintiff’s bonus and his mitigation earnings were subtracted, the total damages owing to the plaintiff was $2,540,073.95.
Conclusion
Warren v. Canaccord Genuity Corp. confirms that employees in cyclical, bonus-heavy industries may recover much larger damage awards where the ‘comparator approach’ versus an employee’s ‘historical averages’ is used to determine their bonus entitlements on termination. In this case, the difference between using the historical average and the comparator approaches, was over $3.2 million. Warren v. Canaccord Genuity Corp. also demonstrates that post-termination market conditions can be considered by the court, which may be in the employee’s favour in times of boom and in the employer’s favour in times of bust.