Executive Summary: Key Legal and Evidentiary Issues

• Central issue was whether Insight Canada had just cause to terminate Gordon Rudko for insubordination, specifically his failure to comply with performance management directives.

• The court assessed the credibility and reliability of witnesses, preferring the testimony of Insight Canada’s witnesses over Mr. Rudko’s, and found Mr. Rudko’s evidence unreliable and, in many instances, not credible.

• The court examined whether Mr. Rudko was entitled to damages or shares under Insight Enterprises’ Restricted Stock Unit (RSU) Plan, including the authenticity of documents submitted by Mr. Rudko.

• The court found that Mr. Rudko declined RSU grants in 2011 and 2012 and did not participate in the RSU Plan thereafter; his claim for damages under the RSU Plan was also barred by the Limitations Act.

• Several documents submitted by Mr. Rudko in support of his RSU claim were found to be fake or not authentic.

• While Mr. Rudko’s wrongful dismissal and RSU claims were dismissed, he was awarded his unpaid 2017 third quarter bonus in the amount of $29,470, less withholdings, with Insight Canada entitled to costs.

Background and facts of the case

Gordon Rudko was employed by Insight Canada Inc., a technology services company, from 2003 until his termination on October 30, 2017. He was promoted to Director, Field Sales, Canada on April 10, 2010, and later became Director, Western Sales. At the time of termination, he was 54 years old, had a base salary of $104,488.80, and participated in Insight Canada’s quarterly incentive bonus program. He received bonuses in every quarter from the last quarter of 2015 to the second quarter of 2017 and earned the 2017 Q3 incentive bonus before his termination, although it became payable after his termination. The parties agreed the amount of this bonus was $29,437. He did not secure new employment within two years of his termination.

Insight Canada terminated Mr. Rudko’s employment, asserting just cause based on repeated insubordination—specifically, his failure to comply with clear and reasonable performance management directives issued by his manager, Ms. Carmela Orlando. Over an 18-month period, Mr. Rudko was repeatedly asked to provide a detailed development action plan to address leadership and engagement deficiencies identified in performance reviews and 360 Reviews. Despite progressive discipline, written warnings, and clear communication of expectations and consequences, Mr. Rudko failed to submit the required plan. He focused on his financial performance and expressed disagreement with management’s assessment of his leadership.

Mr. Rudko claimed he was wrongfully dismissed and sought 24 months’ notice, $100,000 in aggravated and punitive damages, and damages or shares arising from his alleged entitlement to the RSU Plan. He argued that he was terminated without cause and that he should have received RSU grants from 2011 to 2017, including during any reasonable notice period. Insight Canada countered that Mr. Rudko was terminated for cause, that he was not entitled to RSU benefits as he had declined participation, and that certain documents he relied upon were fabricated.

Discussion of policy terms and RSU Plan

The RSU Plan was an equity compensation program offered by Insight Enterprises, the parent company. Directors were eligible to participate, but acceptance of each grant was required, and the company retained discretion over future grants. The court found that Mr. Rudko declined grants in both 2011 (Grant 32094 for 522 shares) and 2012 (Grant 32339 for 435 shares), after which he was not offered further participation. The terms of the RSU Plan and the evidence from Insight’s equity administrators established that declining a grant could result in exclusion from future grants unless the employee requested re-inclusion. The court found no evidence that Mr. Rudko accepted any grants or that he was entitled to further participation after declining the 2012 grant.

Mr. Rudko presented several documents to support his claim that he continued to participate in the RSU Plan and that Insight managed his RSUs for him. The court found these documents to be either fake or not authentic, based on credible testimony from Insight’s witnesses and a forensic computer analysis. The court also found that, even if entitlement had existed, Mr. Rudko’s claim for RSU damages was barred by the Limitations Act, as he failed to pursue the claim within the statutory period after being excluded from the plan.

Assessment of credibility

The court placed significant weight on the credibility and reliability of the witnesses. Mr. Rudko’s evidence was found to be inconsistent, exaggerated, and at times contrary to documentary evidence and common sense. In contrast, Insight Canada’s witnesses, including Ms. Orlando, Mirabelle Mikhail, Georgia Hauglid, and Betsy Eberg, were found to be credible, detailed, and consistent. The court found that, in all respects in which the parties’ evidence conflicted, it preferred the evidence of Insight’s witnesses to that of Mr. Rudko.

Outcome and conclusion

The court concluded that Insight Canada had just cause to terminate Mr. Rudko for insubordination, given his persistent refusal to comply with reasonable management directives and the progressive discipline process. As a result, his wrongful dismissal claim was dismissed. The court also dismissed his claim for damages under the RSU Plan, finding he was not a participant after 2012 and that his claim was time-barred. The court determined that Mr. Rudko had submitted fake or unauthentic documents in support of his RSU claim.

However, the court acknowledged that Insight Canada had failed to pay Mr. Rudko his 2017 third quarter bonus and ordered payment of $29,470, less appropriate withholdings, with pre-judgment and post-judgment interest in accordance with the Judgment Interest Act, RSA c. J-1. Insight Canada was awarded costs, subject to further submissions if the parties could not agree on the amount. The successful party in the litigation was Insight Canada, with Mr. Rudko only succeeding in recovering his unpaid bonus. No other damages were awarded in his favor.