Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on the interpretation and enforceability of a draft commission plan that was never formally approved.

• The Employment Agreement confirmed Mr. Salam’s eligibility for commissions, but without specific quantification.

• Court held that Mr. Salam was entitled to commissions of up to 15% of his salary based on consistent post-contractual conduct.

• The claim for over $600,000 in commissions based on the draft plan failed due to lack of approval and contractual certainty.

• Reasonable notice for wrongful dismissal was found to be six months, not the 12 months claimed.

• Mr. Salam was awarded $58,419.52 in total damages, including notice, lost benefits, and commissions, minus prior payments and statutory deductions.

Facts of the Case

Kashif Salam was employed by the Ontario Research and Innovation Optical Network (ORION), a not-for-profit organization providing private networking services for research and education in Ontario. He was hired in July 2017 as a Senior Product Sales Solution Manager and later promoted to Director, Products and Business Solutions. His employment was terminated without cause in October 2019 when he was 49 years old.

Mr. Salam claimed wrongful dismissal and unpaid commissions amounting to $611,917. He argued that his compensation package included a 15% commission plan as discussed during his hiring and reflected in draft plans shared during his employment.

The Disputed Commission Plan

Although Mr. Salam received letters confirming his compensation as a base salary plus a 15% commission, ORION's position was that the commission plan referenced was a draft, never finalized or approved. While ORION paid Mr. Salam what he considered commission-based bonuses during his tenure, it characterized these payments as discretionary bonuses and not contractual entitlements.

The court found that although a formal commission structure was never finalized, Mr. Salam was indeed entitled to commissions up to 15% of his base salary based on consistent behavior by ORION, including signed confirmation letters and the way previous bonuses were calculated. However, the court rejected the enforceability of the draft commission plan due to its "draft" status and lack of approval, as well as the absence of clarity on key terms like revenue sources and calculation methodology.

Entitlement to Commissions and Compensation

The judge concluded that:

• The Employment Agreement included an entitlement to commissions based on sales.

• Commissions of up to 15% of salary were supported by ORION’s own documentation and conduct.

• Mr. Salam received appropriate commission payments for fiscal years 2017–2019.

• He was also entitled to prorated commission for 2019–2020, including the six-month notice period.

Wrongful Dismissal and Notice Period

The court applied the Bardal factors to determine that six months was a reasonable notice period, rejecting Mr. Salam's claim for 12 months and ORION’s original stance of no further obligation. The court noted his age, role, short service duration, and relatively prompt re-employment as relevant factors.

Damages Awarded

Mr. Salam was awarded:

• $48,266.58 for base salary during the six-month notice period,

• $6,732 for lost benefits (10% of salary over the notice period),

• $16,043.44 in commissions for the part-year worked and notice period,

• Minus $12,622.50 already paid in statutory and additional severance,

• Resulting in a final award of $58,419.52, subject to statutory deductions.

The court declined to consider unpleaded claims such as pretextual termination and bad faith, citing a lack of evidence and procedural basis.