The Supreme Court of British Columbia has ruled that a long-serving, high-performing salesperson for Macquarie Energy Canada was wrongfully dismissed and entitled to damages beyond what had been paid out.
The award included 19 months’ notice and $35,000 in aggravated damages, bringing the total to $836,424.
The case centred on whether Macquarie could rely on after-acquired cause — including evidence that he ingested cannabis gummies on the job and a threatening, non work-related text he sent to someone who rented his vacation property — to justify a termination without notice, and whether contractual clauses limiting the worker’s payout were legally enforceable.
The court rejected the arguments for just cause, found the contractual termination clause unenforceable, and granted him a common law notice period of 19 months. The court also ordered additional amounts for accrued vacation and aggravated damages, but declined to award punitive damages.
Background
B.H. served as a salesperson at Macquarie for over 17 years, primarily selling equipment leasing products to commercial clients. His pay structure included a base salary of $100,000 plus commission. Over time, he achieved considerable earnings, with annual totals in some years exceeding $600,000.
Despite being a long-tenured and high-producing salesperson, B.H. was terminated without cause. Macquarie initially gave him 52 weeks of base salary, totalling $100,000, and paid out vacation based only on his base salary rate.
B.H. launched a claim against Macquarie, seeking common law notice damages, vacation pay reflecting both salary and commissions, and other relief. Macquarie responded by alleging after-acquired cause, arguing that it had discovered grounds for immediate dismissal after B.H. was let go.
Those grounds centred on alleged dishonesty about a text message to a third party and the alleged ingestion of cannabis at work.
After-acquired cause
Alleged dishonesty in an external dispute: Macquarie learned B.H. had sent a threatening text to a person who stayed at his vacation rental, then tried to cover up his involvement in that text. The court noted that B.H. “lied during the Air B&B investigation” when he stated that someone else had sent the message, although he had done so himself.
While the court acknowledged this “would have warranted disciplinary action,” it found the lie “did not go to the core of the employment relationship.” As a result, the “dishonesty therefore does not establish after-acquired cause” to dismiss him without notice.
Alleged cannabis consumption: The court also addressed the charge that B.H. logged nearly 50 instances of “gummies” in a personal note, time-stamped to overlap with working hours. Macquarie argued these entries reflected consumption of THC-laden edibles at work.
However, the court “accepted [B.H.’s] evidence” that he was taking CBD products for health reasons and did not become impaired. It further noted that company policy distinguished between consuming intoxicating cannabis and non-impairing CBD. Ultimately, the court concluded B.H.’s use of CBD did not breach any fundamental duty or policy in a way that justified instant dismissal.
Because neither dishonesty nor alleged cannabis intake rose to the threshold of just cause, the court decided Macquarie had no legitimate basis for termination without notice.
Termination clause deemed unenforceable
B.H.’s employment contract contained a termination clause capping notice at 52 weeks and excluding commissions from payout. The court found that such a limit “failed to meet minimum statutory standards,” since in certain scenarios it could deprive an employee of statutory entitlements.
Because the clause “always carried the reasonable potential of not meeting minimum statutory standards,” it was “void and unenforceable.”
Consequently, B.H. was awarded damages at common law rather than through the limited contractual payout.
Setting the notice period
To determine how many months of notice B.H. merited, the court considered well-established Bardal factors: length of service, character of employment, age, and availability of similar work. B.H. had been at Macquarie for 17 years, was 43 at termination, and operated in a “niche” field of leasing finance.
He also faced difficulty pursuing employment within the industry once litigation began, as prospective employers grew concerned about Macquarie’s allegations.
Reviewing salary and commissions, the court held that a 19-month notice period was appropriate. It then calculated B.H.’s expected earnings in that window. Because his pay comprised both base salary and commissions that fluctuated from year to year, the court took a multi-year average, with an adjustment for a one-time windfall in 2022.
Vacation entitlement dispute
The court also scrutinized Macquarie’s decision to pay out B.H.’s accrued vacation at the base salary rate only. B.H. argued his contract entitled him to vacation pay that factored in commissions; the court agreed.
It found the company policy stated that vacation pay should reflect “the employee’s earnings” and noted the statutory definitions included commissions as wages. The relevant portion in B.H.’s contract that excluded commissions from vacation payouts was deemed unenforceable. Ultimately, the court awarded him an additional sum covering the value of commissions within the accrued vacation period.
Aggravated damages
B.H. claimed he suffered extensive mental distress due to Macquarie’s conduct, including certain allegations advanced during litigation. While the court acknowledged that employers can make good-faith pleadings to defend themselves, it found portions of Macquarie’s claims were carried too far.
Specifically, the court was troubled by allegations that B.H. had disclosed confidential information, ingested intoxicating cannabis while working, and caused large-scale financial losses — none of which were proven or, in the court’s view, reasonably supported.
Since those allegations continued in some form until close to trial, the court decided Macquarie breached its duty of good faith and fair dealing and caused B.H. “serious and prolonged emotional distress.” As a result, the court awarded $35,000 in aggravated damages.
Punitive damages declined
B.H. also sought punitive damages, claiming Macquarie’s litigation conduct met the standard of “highhanded, malicious, arbitrary or highly reprehensible” behaviour. The court disagreed, explaining that while some allegations were raised without sufficient basis, “unreasonableness without more” did not justify the exceptional measure of punitive damages. It found the aggravated damages award was enough to address the harm caused.
Final outcome
The court ordered Macquarie to pay B.H. damages for 19 months of notice, additional vacation pay reflecting commissions, and $35,000 in aggravated damages. Macquarie received credit for the 52 weeks of salary already paid to B.H. It was also allowed a deduction for limited rental income B.H. earned during the notice period, although the court acknowledged that B.H.’s expenses might reduce or eliminate that set-off.
For more information, see Hoem v Macquarie Energy Canada Ltd., 2025 BCSC 446 (CanLII).
