ALFRED WHIFFEN, – v. –, 2024 NBKB 22

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Alfred Whiffen v. Mariner Partners Inc. 2024 NBKB 022 MC/281/2023 BETWEEN: ALFRED WHIFFEN, – and – MARINER PARTNERS INC. DECISION BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATE OF HEARING: October 27, 2023 DATE OF DECISION: February 1st, 2024 APPEARANCES: Michel C. Poirier, for Alfred Whiffen Jessica Bungay, for Mariner Partners Inc.

DYSART, J. INTRODUCTION [ 1 ] This is a motion filed by the Plaintiff, Alfred Whiffen, wherein he seeks

summary judgment under Rule 22 of the Rules of Court. [ 2 ] Mr. Whiffen has sued his former employer, Mariner Partners Inc., alleging that he was terminated without being given reasonable notice. He claims damages under various headings, including damages in lieu of reasonable notice; damages for unpaid sales commissions; damages in relation to a contractual entitlement to a grant of shares that never happened; moving expenses; damages for breach of good faith; punitive, aggravated and/or exemplary damages for what Mr.

Whiffen describes as the “callous and malicious” way in which he was terminated; and interest, costs and disbursements. [ 3 ] For its part, Mariner maintains that Mr. Whiffen’s employment contract set the period of notice available to him on termination, which Mariner says was paid. Mariner denies that Mr. Whiffen is entitled to any unpaid commissions, nor is he entitled to any moving expenses or any damages – whether described as punitive, exemplary or aggravated – arising from the manner in which Mariner conducted itself. Mariner acknowledges that Mr.

Whiffen was entitled to a grant of shares but says that its efforts to work with Mr. Whiffen and his counsel to resolve that matter have been unsuccessful, with several questions left to be resolved. [ 4 ] Mariner asks that the motion be dismissed. Mariner does not, however, seek

summary judgment as against the Plaintiff. EVIDENCE [ 5 ] The Court’s record includes the following Affidavits and their attachments: • Affidavit of Alfred Whiffen sworn June 7, 2023; • Affidavit of Theresa Cook sworn September 26, 2023; • Affidavit of Paul Eisner sworn September 26, 2023; and • Supplemental Affidavit of Alfred Whiffen sworn October 5, 2023. [ 6 ] Ms. Cook is the Senior Vice President of Mariner. Mr. Eisner is the President of Mariner Innovations, which is described as the consulting division of Mariner Partners Inc. [ 7 ] As noted, Mr. Whiffen seeks

summary judgment with respect to a number of heads of damages. As some of the evidence is of general relevance and as other evidence relates only to one of those heads of damages, I will begin by summarizing some of the broader evidence and then separately address the specific evidence as it relates to each head of damages claimed by Mr. Whiffen. [ 8 ] Before doing so, however, the Court will briefly outline the law with respect to

summary judgment in New Brunswick. THE LAW —

SUMMARY JUDGMENT [ 9 ] Rule 22 of our Rules of Court was overhauled following the Supreme Court of Canada’s landmark decision in Hryniak v. Mauldin , 2014 SCC 7 . [ 10 ] Where the former approach to

summary judgment motions was to determine whether there were “triable issues,” the modern approach has been re-framed to ask: are there genuine issues requiring a trial?

[11] In Russel et al v. Northumberland Co-operative Limited, 2019 NBCA 70, Justice LeBlond succinctly explained the approach tomotions for

summary judgment and he set out a roadmap for motion judges to follow, creating a two-step analysis. He wrote: [21] The Rule therefore provides a two-step process with specific reference to the central question: is there a genuine issue requiring atrial? [22] In step one, the judge must determine if the evidence put before him reveals a genuine issue requiring a trial. At this point, thereis no need to resort to the fact-finding powers contained in Rules 22.04(2) and (3). Adjudication under step one may include cross-examination on any affidavit (Rule 39.03).

Any such cross-examination does not trigger the mini trial prescribed by Rule 22.04(3). If,on the filed evidence alone, the judge can fairly and justly adjudicate the dispute, there will be no genuine issue requiring a trial and thejudge must grant

summary judgment. There is no discretion under the Rule to refuse to do so (see 22 King Street Inc. et al. v. The Bankof Nova Scotia, 2018 NBCA 16, [2018] N.B.J. No. 42 (QL)). The motion judge in this case granted

summary judgment on that basis andtherefore did not need to proceed to step two. [23] A judge only proceeds to step two if the assessment of the filed evidence leads to the conclusion that there may be a genuineissue requiring a trial. […] […] [26] The ultimate objective will continue to be justice according to law. Conventional trials will not disappear, but the new mindsetrequires a shift away from them as the default and as being always the best mechanism in seeking justice, to a mindset guided by ananswer to the central question: is there a genuine issue requiring a trial?

That question can only be answered by fully exploiting theopportunities of Rule 22. [27] A by-product of the culture shift will be a reduction in the number of civil trials. Rule 22 motions, with or without mini-trials, willdetermine if judges have the level of confidence required to do what they have always done in conventional trials, i.e. find facts andapply relevant legal principles to those facts, with the difference that they will be doing so proportionally, fairly and in a much moretimely and affordable fashion. The culture shift will benefit litigants and the court process.

The Supreme Court was clear in Hryniak thatthe

summary judgment motion, as an alternative model of adjudication, is no less legitimate than a conventional trial. [28] The burden of proof to establish there is no genuine issue requiring a trial will always be on a balance of probabilities. Thatburden will more readily be met with fulsome use of the broad scope of admissible evidence now permitted under Rule 22. The old adageof putting one’s best foot forward and leading trump or risk losing is far more significant under the new version of Rule 22 than it wasunder its previous iteration.

This was fully canvassed in O’Toole at paras. 70-73. [12] In the present case, neither party requested to cross-examine the other on their affidavit evidence. [13] Also, it should be noted that Mariner has not filed its own motion for

summary judgment. [14] As stated by Justice Drapeau in Abrams v. RTO Asset Management, 2020 NBCA 57 : [49] Admittedly, the wording of Rule 22.04 provides fodder for an argument in favor of “Boomerang”

summary judgments. It states thecourt must grant

summary judgment in certain circumstances, without explicitly requiring a motion. However, that

interpretation cannotprevail on a contextual reading of Rule 22.04, with particular regard for its heading “Disposition of Motion” (emphasis added). [50] Unless compliance with the motion requirement under Rule 22 is dispensed with by an order under Rule 2.01, a “Boomerang”summary judgment is not an adjudicative option. A motion, formal or informal, is a condition precedent to a

summary judgment underRule 22, and an order dispensing with that requirement, which is not a matter of form, will be appropriate only in exceptionalcircumstances, such as those that percolate from the record in Manulife Bank of Canada v. Conlin, (CSC), [1996] 3S.C.R. 415, [1996] S.C.J. No. 101 (QL), or where Rule 22.04(1)(

b) is engaged. That Rule directs the court to grant

summary judgmentwhere the parties agree and it is appropriate to do so. [15] Thus, because Mariner has not requested

summary judgment, the Court is limited to either granting Mr. Whiffen’s claims on

summary judgment (because I am satisfied that there is no genuine issue requiring a trial) or denying them (because he has failed to prove there is no genuine issue requiring a trial). [ 16 ] I will now turn to the evidence, beginning with the broad evidence relating to the whole of the action. GENERAL EVIDENCE [ 17 ] Mr. Whiffen resides in Saint John, New Brunswick.

He states that he has decades of experience in “sales leadership”, and he lists his past employment as: 2003-2007: Vice President of Sales (Small and Medium Size Business) for BellAliant 2008-2009: Regional VP of Sales (Newfoundland and Labrador) for BellAliant 2009-2012: VP of Sales and Marketing for Avalon Microelectronics 2012-2018: VP of Sales and Marketing for Virtual Marine 2018-2019: Director of Customer Development and Strategic Account Executive for Avalon Holographics [ 18 ] According to Mr. Whiffen, he was approached in 2019 by Terry Cook, who is the wife of Mariner’s CEO, Curtis Howe. Apparently, Ms.

Cook worked with Mr. Whiffen when they were both with BellAliant. In fact, Mr. Whiffen states that Ms. Cook had previously approached him in 2017, 2018 and then for a third time in 2019, and that he was induced by the Defendant to leave his position at the time in Newfoundland and Labrador and to accept a position with Mariner as Chief Sales Officer / Head of Customer Development with one of Mariner’s divisions, Mariner xVu. [ 19 ] After an exchange with Mr. Cook in 2019, Mr. Whiffen says he agreed to meet with Curtis Howe. There were negotiations back- and-forth over a period of a couple of months, and Mr.

Whiffen then accepted the position. He executed an Employment Service Agreement with Mariner Partners Inc. on August 18, 2019 (the “ESA”), with an anticipated commencement date of September 16, 2019. The ESA contained the following terms in Clause 4, which governed compensation and benefits: • Base Salary: $200,000.00 • Signing Bonus: $20,000.00 • Bonus to be paid by January 31, 2020: $32,000.00 • Stock Option for 90,000 shares in each of three affiliated corporations – Mariner Innovations; Mariner Investments; and Mariner Partners.

The Clause provides, however: “…if the associated stock options document has not been signed off by Mariner and employee by December 31, 2019, employee will instead receive a grant of 54,000 shares in each of Mariner Innovations, Mariner Partners and Mariner Investments, and no stock options will be awarded to the employee. The class of shares for the options and grant shall be at the discretion of the board.” • “(

e) Executive variable compensation for achievement of Business Unit (BU) revenues: beginning in 2020, variable compensation of $110,000 per year, pro-rated based on achievement of BU revenues as follows: (

i) for achievement of BU revenues below 85% of BU target, no variable pay will be awarded.

(ii) for achievement of BU revenues between 85% of BU target and 100% of BU target, variable pay will be pro-rated linearly from $ 0 at 85% of target to $ 110,000 at 100% of target. (iii) for achievement of BU revenues in excess of BU revenue target, variable pay equal to 1.5% of that portion of revenues in excess of target. (iv) beginning in 2021, your executive variable compensation will be subject to achievement of a mutually agreed threshold for business unit EBITDA - that is, achieve EBITDA of at least xx% of EBITDA target to trigger payout of executive variable compensation. (

v) business unit revenue and EBITDA targets will be reviewed and updated at least annually. (vi) note that the scope of the business unit (BU) may evolve but will initially be the Vu business unit.” • “(

f) Sales commission: in addition to your role leading a team of sales representatives, you will act as Mariner's sales representative to mutually agreed clients and receive a sales commission for your sales to those clients. This commission will be equal to a percentage of the value of purchase orders received and will be paid within 30 days of Mariner invoicing the client. The percentages will be as follows […]” • “(

g) In lieu of a relocation allowance for moving and other related expenses, Mariner will reimburse an amount up to $45,000, for the loss on the sale of a principal residence. This amount will be reimbursed following the submission of an expense claim showing the difference between purchase value of the property and sale price of the property. […]” • The ESA also provided for 5 weeks annual vacation as well as Accidental Death and Dismemberment Insurance, Health and Dental Insurance, and Long-Term Disability insurance coverages. [ 20 ] Clause 17 of the ESA governed termination, and provided that: “Termination: Mariner may terminate this Agreement on the earlier of the following: (

a) without notice (

i) if you fail to successfully complete security training within fifteen (15) days of the Commencement Date of this Agreement; (ii) during the first six (6) months of this Agreement, being your probationary period; (iii) for cause; (iv) in the event of a material breach of this Agreement; (

v) as otherwise permissible as termination without notice at law; or (

b) with notice

(

i) between the end of the probationary period and 2 years of continuous service, with 3 months’ notice; (ii) after two years of continuous service, with notice equal to two (2) weeks notice for each full year of employment.” [ 21 ] Mr.

Whiffen started working for Mariner xVu on September 23, 2019. [ 22 ] In 2020, he earned $257,947 in total compensation, meaning $57,947 in commissions and bonuses. [ 23 ] In 2021, he earned $272,075 in total compensation, meaning $72,075 in commissions and bonuses. [ 24 ] In 2022, he earned $278,139 in total compensation, meaning $78,139 in commission and bonuses. [ 25 ] In early 2023, things came to an end when Mr. Whiffen’s employment was terminated. He was provided a letter dated February 9, 2023, addressed to him by the CEO, Paul Eisner.

That letter reads in part as follows: “This letter will confirm details of our meeting today regarding your employment with Mariner Partners Inc. ("Mariner"). It is with regret that we inform you that your employment with Mariner has been terminated, effective immediately. Mariner is prepared to offer you the following to assist you during the interim in finding alternate employment.

Base Severance Mariner is not alleging just cause and we are providing you: • all outstanding wages up to today's date (less statutory deductions) to be paid via payroll in the normal course; • all outstanding vacation pay up to today's date (less statutory deductions) to be paid via payroll in the normal course; • continuation of all group benefits, with the exception of LTD, until February 28, 2023; • two (2) weeks additional pay (less statutory deductions) as payment in lieu of notice pursuant to the New Brunswick Employment Standards Act.

Enhanced Severance In addition to the base severance, Mariner is prepared to offer you an enhanced severance of: • an additional three (3) months' salary payable in one lump sum payment in the amount of $50,000 (less income tax withholdings); and • continuation of your group benefits, with the exception of LTD, until April 30, 2023. This enhanced severance offer is conditional upon you obtaining legal counsel and returning to Mariner the enclosed Full and Complete Release, Settlement and Confidentiality Agreement and Certificate of Independent Legal Advice by no later than February 17, 2023.

Mariner will reimburse you up to $600 for the cost of your legal fees. [ 26 ] While the letter indicates that he would receive two weeks pay in lieu of notice, Mr. Whiffen confirms in his affidavit that he was

paid an additional four weeks salary the following month, bringing his total pay in lieu of notice to 6 weeks. [ 27 ] The release which Mariner asked Mr. Whiffen to sign in exchange for the enhanced severance was a broadly worded release of any and all liability. He did not execute the release, and the enhanced severance was not paid to him. [ 28 ] Those are the basic facts of the case. I will now turn to each individual head of damages. DAMAGES IN LIEU OF REASONABLE NOTICE [ 29 ] Mr.

Whiffen argues that he is entitled to damages in lieu of reasonable notice at common law, and he believes that one year’s income is an appropriate notice period. He claims $278,000.00.

He says there are several factors which support such an award, including: • He held a senior sales role with Mariner; • He worked for Mariner for just over three years; • He holds a Masters Degree in Business Administration; • He is now 60 years of age; • His high level of income at over $275,000; • He was recruited to work for Mariner; • He relocated from Newfoundland and Labrador to New Brunswick; • “The manner” of his termination; and • The difficulty he anticipates he will have in finding a suitable job. [ 30 ] Of course, the ESA contains a clause which governs termination, as outlined above.

Mariner argues that the ESA clearly and unequivocally provides that, upon termination with notice, that notice (if it occurs after the first two years of employment) shall be equivalent to two weeks notice for every full year of employment. [ 31 ] Here, it is undisputed that Mr. Whiffen worked just over three years for Mariner, meaning that, if that clause of the ESA applies, his notice period would be limited to six weeks. Further, recall that Mr. Whiffen was paid an initial two weeks salary on his termination, followed by an additional four weeks salary paid to him in March. [ 32 ] Counsel for Mr.

Whiffen attempted to argue that that clause does not apply, and that the termination clause actually invites the application of common law reasonable notice. The Court had great difficulty following the reasoning behind that argument, and I will do my best to articulate it in these reasons: effectively, Mr. Whiffen takes the position that because the agreement called for six weeks notice, and because Mariner initially paid only two weeks notice, Mariner was thus in breach of the termination clause and thus did not terminate Mr.

Whiffen “with notice.” As a result, the terms relating to termination “with notice” do not apply, he argues. [ 33 ] He then asks the Court to consider the terms relating to termination “without cause,” and in particular clause 17(a)(

v) of the agreement, which reads: “Termination: Mariner may terminate this Agreement on the earlier of the following: (

a) without notice […] (

v) as otherwise permissible as termination without notice at law ;

[emphasis added] [34] According to counsel for Mr. Whiffen, the emphasized parts of clause 17(a)(

v) engage the employee’s right to reasonable noticeat common law. [35] I am not convinced by that argument. That clause clearly relates to situations where the employee may be terminated by theemployer without notice. It is unreasonable and nonsensical to read it so as to create an entitlement to damages in lieu of reasonablenotice under the common law. [36] I am mindful of the directions from the Supreme Court of Canada relating to the

interpretation of contractual provisions. InSattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 , Justice Rothstein wrote: [47] […] the

interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules ofconstruction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” (Jesuit Fathers ofUpper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1 S.C.R. 744, at para. 27, per LeBel J.; see also TerconContractors Ltd. v.

British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at paras. 64-65, per Cromwell J.).To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistentwith the surrounding circumstances known to the parties at the time of formation of the contract. […] [37] Reading the contractual provisions in this case, and employing a common-sense, practical approach, I am unconvinced by Mr.Whiffen’s argument, and so cannot award him

summary judgment with respect to his claim to damages in lieu of reasonable notice. Given that I am not satisfied by his arguments, I conclude that there are genuine issues requiring a trial and his claim for

summaryjudgment under that head of damage is dismissed. [38] One additional comment regarding this head of damages. In his initial affidavit of June 7, 2023, Mr. Whiffen states: 59. THAT I have not yet been successful in finding new employment opportunities for my executive sales skill level and unique area ofexpertise. To date I have applied for 13 Sales Leader and Sales Executive positions and have had 1 interview. In addition I havecontacted several Sales "Head Hunters" in an attempt to find suitable new employment.

I have had no success in finding newemployment to date. [39] In his Supplemental Affidavit, however, he states that he incorporated a company in May 2023, and that he had secured multiple contracts – the first having been secured on May 29th, a little over a week before he swore that first affidavit. This raises serious concernswith respect to Mr. Whiffen’s credibility. It is unclear why Mr. Whiffen did not disclose that information in his initial affidavit, but itseems clear that he was less than forthright with the Court.

CLAIM TO SALES COMMISSION [40] The evidence indicates that, starting in 2021, Mariner adopted a new Sales Commission Plan, a copy of which is included at page111 of the Record on Motion. It reads, in part: Introduction The sales compensation program at Mariner is intended to provide the opportunity for enhanced income opportunity consistent with thedelivery of results. The sales compensation plan that follows sets out the results necessary to support the company in the achievement ofits business goals.

Compensation Overview: Each Account Executive or Sales Engineer will be provided with a Base Salary and Target Incentive opportunity. The Mix between BaseSalary and Target Incentive will vary by position, and therefore will be provided in a separate document.

This document outlines how incentives will be earned for 2021.

The Incentive Plan described in this document is effective January 1, 2021 and supersedes all prior year Plans. [ 41 ] The document goes on the describe how “New Sales” and “Renewals” are defined, and it explains how commissions are calculated and when they are paid, which was quarterly and based on the annual renewal date in the case of any multi-year renewal. [ 42 ] The Plan also contains the following term: Interruption of Employment: If a participant ceases to be a Mariner employee because of any of the following circumstances: Participant tenders his/her resignation; Participant is terminated; Participant retires during the incentive period; Participant is required to leave through job elimination; Participant transfers to another department or an affiliate company during the incentive period; etc. - All outstanding incentives will be paid for all invoiced revenue up to the last day of active employment in the job.

Incentives will be calculated based on the most recent performance information available. No incentive will be paid to the Participant under the Plan for sales made after the effective date of any of the events described in this section. [ 43 ] Mr. Whiffen alleges that he was not paid commissions he earned in the last quarter of 2022 (i.e. Q4 2022), prior to his termination. He claims that those commissions total $81,997. He states that the commissions arise from two contracts with large customers who pre-paid on multi-year renewals.

That is, while they may have renewed for a three-year contract, they paid the full amount of the contract up front, rather than annually. This, Mr. Whiffen alleges, should have resulted in his being paid the full commission on the entire renewal amount in Q4 2022. [ 44 ] Mr. Whiffen cites the ESA from 2019, which states that commissions would be paid within 30 days of Mariner issuing an invoice to the customer. Hence, he should have been entitled to his commission in early 2023, prior to his termination.

That said, the Plan introduced in 2021 seems to suggest that commissions are paid quarterly based on a different formula, and that the Plan supersedes any prior plan. [ 45 ] And, of course, the clause cited above would seem to suggest that “all outstanding incentives will be paid for all invoiced revenue up to the last day of active employment in the job.” Does this provision supersede the quarterly payment schedule? [ 46 ] When this issue was raised by Mr. Whiffen prior to his termination, Mariner’s CEO, Paul Eisner, sent an email to Mr.

Whiffen, writing: I wanted to follow-up from our discussion Friday regarding 2022 Q4 commissions. This is with respect to your request to include M&S prepayments for future years within the 2022 commission and accelerator calculations. As discussed, your request is outside the program terms and intent. Your stated expectation to be paid these extra amounts to Vanessa would result in an additional $271k commissions and represents a significant overage of on-target earnings for yourself, Jarrod and Jeff at a time when the team did not meet its budgeted revenue. [ 47 ] That is, Mr.

Eisnor states that accelerating those commissions into Q4 2022 would result in a windfall commission for the sales team which did not, in fact, meet its annual sales targets, which are factored into the calculation of any commissions. The company maintained that Mr. Whiffen was entitled to a more modest commission of $35,382 for Q4 2022, which was paid. [ 48 ] In response, Mr. Whiffen wrote to Mariner’s leadership on January 23, 2023, acknowledging that the Plan, as adopted in 2021 and as understood in 2022, was that upon renewals, the commission would normally be payable on the anniversary date.

However, he seems to suggest that pre-payment of a multi-year agreement was not specifically contemplated by the Plan: The current commission/variable pay is based on the 2021 plan letter to the sales team. The letter was not amended by Shelley for 2022 but we did add a team element as you know. She did revise the calculators based on the 2022 forecasts and the addition of the team target. So, in principle, the 2021 letter terms and conditions still apply to 2022, with one exception.

The 2021 letter does not specifically describe a situation where a customer signs a multi-year M&S agreement and pays the full period in advance. In fact, the assumption is that the customer would be invoiced on the anniversary/renewal date, each year of the multi-year agreement. That was the intent of the term when the letter was drafted. We have only one incidence (and precedence) for a multi-year agreement being signed, invoiced and paid in full for all years included - the [client name redacted] multi-year agreement in 2019.

At that time, Paul offered, and Curtis approved that Gerry be paid in full for all three (3) years as Mariner invoiced the full amount and collected payment in full, in advance. With that in mind, and no specific reference to this situation in any of the compensation documents, I expect that the $1,500,000 will [be] added for Q4 as a single invoice, and I and the team will be paid in the same manner as Gerry was in 2019.

[ 49 ] That is, Mr. Whiffen is acknowledging that the situation is not specifically contemplated by the Sales Compensation Plan, and his claim to be entitled to a commission on the full paid-up amount of the contract renewal is based on a single precedent which pre- dated the institution of the Plan. In his Affidavit, he identifies two other instances where the commission was paid for the full pre-paid renewals – one in Q2 of 2021 and another dating from 2019. That is, he identifies only one during the period when the Plan was in place. [ 50 ] In the end, Mariner did not agree with Mr. Whiffen’s

interpretation, and he was not paid the commission on the full value of the multi-year renewals. [ 51 ] In his affidavit, Mr. Eisner states that the payment of a commission on a pre-paid contract renewal is expected to be paid on the anniversary of the renewal after each year of the contract, and not on the whole contract value at the time of sale. He does not address the clause related to how commissions are paid when the employee leaves the job.

He states that the company did pay one commission on the whole amount of the pre-payment, but that was in 2019, prior to the adoption of the Plan and that was based on lower commissions than those included under the Plan. [ 52 ] Further, Mr. Eisner says that that one of the contracts which Mr. Whiffen and his sales team renewed in late 2022 was done pre- maturely. That is, he says the existing contract was in place through to July, 2023. He relies on the Plan, which reads in part: “A contract is eligible for renewal ONLY after its original contract period has expired.

For example, if a 3-year contract is signed in 2021, it will be eligible for renewal status in 2024.” [ 53 ] And: “Commission will be paid, and quota retired based on the following schedule: • On each annual renewal date: o Eligible commission will be paid on the 12-month (1-year value) of the renewal […] [ 54 ] This, Mariner says, clearly shows that the intention of the Plan on any renewal, whether paid up-front or not, was to trigger a commission only on the annual renewal date, and not as suggested by Mr.

Whiffen. [ 55 ] And, as noted, one of the contracts in question appears to have been ineligible for renewal until 2023, such that the 2022 renewal was in breach of the Plan and therefore would not have triggered an early payment of the commission in any event. And, as argued by Mariner, the commission was only payable on the anniversary date for the 1-year value of the contract. [ 56 ] Mr.

Eisner says in his affidavit that in Q4 2022, Mariner had some 35 contracts that were pre-paid, and he says, “prepayments from customers received in 2022 for 2023 business did not count towards the 2022 quota and 2022-related commissions of the Mariner Sales representatives.” [ 57 ] Mr. Eisner says the commissions earned by the Plaintiff in Q4 2022, in the amount of $35,382, were paid to Mr. Whiffen and are shown on his pay statements (see page 278 of the record). [ 58 ] Again, in order for Mr.

Whiffen to succeed under this head of damages, he needs to prove that there are no genuine issues requiring a trial. [ 59 ] In my view, the Plaintiff’s claim to his full commission on the entire renewed contract amount very much in question. The terms of the Plan suggest that there was no entitlement to receive those commissions until the anniversary date of the renewal, and then only for the 1-year value of the contract. That is totally inconsistent with the Plaintiff’s claim. But neither party adequately addressed the entitlement on termination, leaving the Court with unanswered questions.

[ 60 ] Also, there appears to be a genuine issue whether at least one of the contracts was renewed prematurely, such that the Plan would not have allowed a commission for that sale in Q4 2022 in any event. [ 61 ] For these reasons, I am not satisfied that Mr. Whiffen has proven that there is no genuine issue requiring a trial with respect to his claim for additional commissions for Q4 2022. As a result, his motion for

summary judgment with respect to that head of damages is dismissed. SHARE OPTION [ 62 ] It is undisputed that the share option set out in the ESA was not exercised by the December 31, 2019 deadline, meaning it was converted to a grant for 54,000 shares in each of the three Mariner entities. [ 63 ] The evidence before the Court is that no grant was ever finalized. One of the problems, it would seem, is that effective December 1, 2020, Mariner Innovations Inc. and Mariner Investments Inc. were amalgamated into Mariner Partners Inc. The three entities are now a single corporation. [ 64 ] According to Mr.

Whiffen’s affidavit, he had numerous discussions with Mariner in 2021, 2022 and 2023 – including discussions after his termination – with respect to the grant of shares provided for in the ESA. He maintains that the proposal put forward by Mariner was in the form of a “grant of a share option” and not a “grant of shares,” and that this attracted potentially adverse tax consequences for Mr. Whiffen. He states that he asked for more information about the proposed grant and that he could not proceed without it. As a result, this led to delays and further delays. [ 65 ] Subsequent to his termination, Mr.

Whiffen states that Mariner offered him shares in Mariner’s holding company, rather than in Mariner Partners Inc. (or one of the companies which were amalgamated into Mariner Partners Inc.). He states in his affidavit that: 48. THAT to effectively and objectively determine what the value of those shares should be, and what number of shares should be granted post amalgamation of Mariner Partners Inc., Mariner Innovations Inc. and Mariner Investments Inc. I require disclosure of the following documentation: (

a) Financial Statements of each of Mariner Partners Inc., Mariner Innovations Inc. and Mariner Investments Inc. from 2019 to date; (

b) Copies of any Shareholders Agreements of Mariner Partners Inc., Mariner Innovations Inc. and Mariner Investments Inc. from 2019 to date; (

c) Copy of the Amalgamation Agreement, with current share structure; and (

d) Specific details of the shares Mariner Partners is proposing to grant to Mr. Whiffen in its settlement offer. [ 66 ] Based on Mr. Whiffen’s evidence, then, he is incapable of determining whether what has been offered to him is equivalent to what he was promised as part of his compensation package in the ESA. [ 67 ] According to Mr. Eisner’s affidavit: 59.

On March 20, 2023, Mariner, through its solicitor, offered the Plaintiff the opportunity to receive 193,380 options for shares in Mariner Group Inc., which is the equivalent to 54,000 shares in each of Mariner Innovations, Mariner Partners and Mariner Investments in August of 2019. Attached and marked as Exhibit "K" is a copy of the March 20, 2023 offer. 60. The Plaintiff did not accept this offer.

61. In this litigation, the Plaintiff is seeking something he was never entitled to receive - the cash value of the shares he would have been granted had he completed the paperwork that was provided to him by Mariner. [ 68 ] Ultimately, it appears that both parties agree that Mr. Whiffen was still entitled, as of the date of his termination, to a grant of shares in Mariner or its affiliated companies.

What is unclear is how such a grant might be effected – for example, whether the granting of an option for shares complies with the ESA, and whether the employer would be responsible for any adverse tax consequences to Mr. Whiffen. At page 136, it appears that Mariner, in or about December 2020, performed a calculation and arrived at a value for the equivalent of 54,000 shares in each of the three original companies, being 193,390 shares in the holding company, Mariner Group Inc., with a value of $63,660.60. [ 69 ] Of course, there is no evidence before the Court as to the current value of those shares.

And, as stated, Mr. Whiffen continues to express concern that he does not have sufficient information about Mariner Group Inc. to agree to any such grant. [ 70 ] Also, as stated by Mr. Eisner, the agreement calls for a grant of shares, and not damages equivalent to the value of shares at any given time. As a result, Mariner argues that it is not as simple as awarding the Plaintiff $63,660.60. [ 71 ] In the result, even though it appears that both parties are in agreement that Mr.

Whiffen is entitled to something with respect to that employment benefit, the parties have not provided the Court with sufficient information to adequately address that issue. There remains a genuine issue requiring a trial. [ 72 ] As a result, the Plaintiff’s motion for

summary judgment with respect to the shares is dismissed. That matter can be addressed by the Court at trial, but it seems that the parties should be able to resolve this one issue, at least, without further involvement of the Court. MOVING EXPENSES [ 73 ] On this head of damages, Mr. Whiffen states the following in his affidavit: 50. THAT I estimate it will cost me approximately $32,500.00 for my future moving expenses to cover my movers' costs, real estate commission and legal fees on sale of my Saint John Condo property. [ 74 ] That is, he has not moved since his termination.

Nor is there any evidence in his affidavit that he intends to move. [ 75 ] At the hearing, counsel for Mr. Whiffen acknowledged that this claim is based on the presumption that his client was enticed by Mariner to move from Newfoundland and Labrador to Saint John in 2019. [ 76 ] If he was not enticed, then, there is no entitlement to any moving expenses – whether real or, as they are today, hypothetical. [ 77 ] So, was Mr. Whiffen enticed to move to Saint John? [ 78 ] According to the evidence of Ms. Cook, which includes a series of emails between herself and Mr.

Whiffen, the following exchanges took place: • April 4, 2017: Ms. Cook writes: “Hey Alfred – I’m looking for a top notch sales executive, know anyone looking? Moncton area. Ideally with established book of business. If you have someone that you know is looking could you forward to me?? Thanks!!”

• April 9, 2017: Mr. Whiffen replies: “Terry, no real suggestions for that product set based on your need for a “top notch” rep. My contacts in the IT field are limited in NB these days. Good luck with the search.” Ms. Cook replies: “Thanks Alfred – ever consider moving to nb??” Mr. Whiffen replies: “I would love to move to Fredericton … for real seasons and good summers! In fact, my wife and I talked about this recently. I still have a goal to meet with VMT, but after that … definitely. Kids are grown and will probably both settle [off] the rock. No reason to stay after that.” Ms.

Cook replies: “Umm well that’s interesting – I would like to hear more about your plans. What’s your timeline?” Mr. Whiffen replies: “Hoping in a year or two at the absolute latest. Have a company to sell first. But it could happen sooner.” Ms. Cook replies: “Ok keep me posted Good luck with the sale of the company.” • April 18, 2017: Mr. Whiffen writes: “Terry, have a change in family situation that may cause us to move faster on a possible move to NB.

Let’s set up a time for a chat so I can understand how you might want to utilize my skillset and knowledge.” [ 79 ] This led to a series of discussions in 2017, but nothing came of those. Mariner’s budget period had passed, and the potential position was not available. [ 80 ] Discussions re-started in January 2018, which are documented with a series of emails between Mr. Whiffen and Ms. Cook. There were discussions about Mr. Whiffen coming to New Brunswick to meet with Mariner executives. On January 28, 2018, Mr. Whiffen wrote that he had recently resigned form his position with his then-employer, Virtual Marine.

He advised that: “… I have a firm offer from the Newfoundland company I mentioned to you. I also have been approached by another company in New Brunswick and in the last week, have had an offer to move to Houston, TX with one of Virtual Marine’s distributors.” [ 81 ] He advised Ms. Cook that, while he was still interested in discussions with Mariner, it would have to be delayed. He stated: “Sorry for any inconvenience caused to your senior team. I certainly never expected to be in this situation when you and I initially spoke.

Have only told four people I was thinking of making a move and have been very fortunate to have more interest than expected.” [ 82 ] Ms. Cook replied on January 29, 2018: “Hi Alfred – thanks for the additional information. I was under the impression you wanted to move away from Newfoundland … if that is still the case and if you are interested in Mariner, I’m happy to

schedule a time for you and Curtis to talk. […] [ 83 ] Mr. Whiffen replied later that same day: “Your understanding is correct but for the right role and company and offer. The best offer so far is here in Newfoundland. […]

[84] A few days later, On February 5, 2018, Mr. Whiffen wrote: “Terry, this email is to let you know I have accepted a new position. I want to thank you for considering me for the role at MarinerInnovations and regret that the timing did not work out as hoped.” [85] According to Ms. Cook, Mr. Whiffen reached out to her through her LinkedIn account in early January 2019, and asked whethershe had found a candidate for the job with Mariner. She replied that she had not. There were no further communications, apparently,until June 23, 2019 when Ms. Cook sent an email to Mr. Whiffen, with the following exchange: Ms.

Cook: “Hi Alfred – we’re still in pursuit for more sales talent … your name came up again. I’m connecting you directly with Curtisin hopes that you can speak directly.” Mr. Whiffen: “Terry, thanks for reconnecting. Curtis I am interested in setting a time to talk.” [86] That led to a series of discussions and a visit by Mr. Whiffen to Saint John in early July. There were then a series of emails backand forth, wherein Mr. Whiffen and Curtis Howe, Mariner’s CEO, negotiated various aspects of the job, from the title, to the role andresponsibilities, to salary, commissions, benefits and stock options.

They specifically discussed the reimbursement for any loss on thesale of Mr. Whiffen’s home in Newfoundland. As well, Mr. Whiffen specifically mentioned in the emails that he consulted with “twosales compensation specialists” in order to arrive at his compensation expectations. Those discussions culminated in the signing of theemployment agreement. [87] As well, it cannot be forgotten that the ESA, negotiated over a period of weeks, included a probationary period of six months. IfMr.

Whiffen was terminated within that six-month period, he was not entitled to notice. [88] The question, then, is whether that evidence, which is uncontroverted, proves that Mariner induced Mr. Whiffen to join Marinerand move to Saint John, such that he would be entitled to moving expenses upon his termination? [89] Inducement is intended to address situations where the employee leaves an otherwise secure position due, in whole or in part, topromises or assurances of security with the new employer. Here, however, there are a number of factors which would undermine thePlaintiff’s allegation that he was induced.

These include: • That he had rejected previous opportunities to join Mariner in 2017 and 2018, opting to pursue different opportunities; • That he had expressed in 2017 and 2018 that he and his wife intended to leave Newfoundland and Labrador for New Brunswick oranother location; and • He entered into an employment agreement which included a 6-month probation period whereby, if he were terminated withinthose 6 months, he would not be entitled to any notice.

Mariner cites several cases to support its contention that the existence of aprobation period is inconsistent with an allegation of inducement: see Quesnelle v. Camus Hydronics Ltd., 2022 ONSC 6156 ;and Fraser v Canerector Inc., 2015 ONSC 2138 . [90] Also, the Court has no evidence from Mr. Whiffen as to when and under what circumstances he left his employment with AvalonHolographics, the company for whom he worked in 2019, prior to joining Mariner.

Was that a secure position, or was he leavingNewfoundland and Labrador as he and his wife had planned two years earlier? [91] The evidence of an alleged inducement is simply lacking on this motion for

summary judgment. I am satisfied that there is agenuine issue requiring a trial on that head of damage. As a result, Mr. Whiffen’s motion for

summary judgment for moving costs isdismissed. CLAIM FOR LOST BENEFITS, BONUSES AND SALES COMMISSIONS DURING THE REASONABLE NOTICE PERIOD

[ 92 ] As noted above, Mr. Whiffen’s motion with respect to reasonable notice at common law is dismissed. Given that fact, Mr. Whiffen cannot prove on the balance of probabilities that there is no genuine issue requiring a trial with respect to his claim for collateral benefits during that notice period. They are inextricably linked. [ 93 ] That said, it is worth noting that Mr. Whiffen has claimed $278,000.00 as reasonable notice of one year. That figure presumably includes all bonuses and commissions to which he was entitled – as that sum is roughly equivalent to his total 2022 compensation.

As a result, it appears that an additional claim for commissions and bonuses would be “double dipping.” [ 94 ] Thus, regarding Mr. Whiffen’s claim to these additional damages during the relevant notice period, I am left to conclude that there are genuine issues requiring a trial. Mr. Whiffen’s motion for

summary judgment for those damages is dismissed. ALLEGED BREACH OF GOOD FAITH AND “CAPRICIOUS AND CALLOUS” BEHAVIOUR BY MARINER [ 95 ] While Mr. Whiffen claims these under separate heads of damages, they seem to arise from the same allegations. [ 96 ] The only evidence before the Court as to this head of damage is as follows, from Mr. Whiffen’s affidavit: 51. THAT the Defendant is a large commercial enterprise and has full knowledge of its' legal obligations to employees. I provided exemplary service to the Defendant throughout the approximately 3.5 year employment relationship.

I was dismissed in a capricious and callous manner calculated to cause damage to me and of such nature that punitive damages should be awarded as against the Defendant. 52. THAT that the manner of the termination of my employment, with complete disregard for the (sic) my economic or emotional well being, caused me to suffer significant stress, anxiety and mental distress. 53.

THAT at all material times in this matter I duly and faithfully complied with the terms and conditions of my employment and performed all duties and services diligently and in good faith, as an employee of the Defendant, within the scope of my employment, including my interactions with subordinate employees and including the return of the my (sic) company laptop. [ 97 ] Of course, the mere fact that the Plaintiff swears that he was dismissed in a capricious and callous manner is not, itself, evidence of capricious and callous behaviour.

He is, perhaps, expressing his own opinion; or perhaps he is swearing to a legal conclusion, which is for the Court to decide. [ 98 ] What is totally lacking from Mr. Whiffen’s affidavits is evidence of what Mariner allegedly did (or perhaps failed to do) which might amount to either a breach of a duty of good faith or capricious and callous behaviour. [ 99 ] At the hearing, counsel for Mr. Whiffen pointed to the following as examples of such behaviour: • Denying Mr. Whiffen his Q4 2022 commissions; • Demanding a release as

part if the “enhanced severance” package he was offered; and • Not completing the grant of shares, as required by the ESA. [ 100 ] Having already concluded that there are genuine issues requiring a trial with respect to the claim for commissions, it can hardly be said that the denial of disputed commissions amounts to proof of bad faith or capricious or callous behaviour. [ 101 ] Also, with respect to the enhanced severance that was offered, Mr. Whiffen was not required to accept that offer. He was offered independent legal advice, for which Mariner was prepared to pay.

He ultimately refused it, evidencing that it was not imposed on him, but rather was an offer which he was free to accept or refuse. How is that capricious or callous? Even if it could amount to bad faith, in my view that is very much a genuine issue requiring a trial.

[ 102 ] Finally, with respect to the grant of shares, the evidence clearly shows that the employer made a number of attempts to grant Mr. Whiffen something, albeit perhaps not what he believes he is entitled to under the ESA. But it is difficult to understand how Mariner’s conduct in that regard could warrant damages. [ 103 ] In the end, I am not satisfied that Mr. Whiffen has proven on the balance of probabilities that there is no genuine issue requiring a trial with respect to his claim for punitive, exemplary, or aggravated damages in this case. His motion for

summary judgment related to that claim is therefore dismissed. DISPOSITION [ 104 ] Mr. Whiffen’s motion for

summary judgment is dismissed in its entirety. [ 105 ] As is the general practice, the successful party is entitled to its costs. [ 106 ] Given the number of issues raised, Mr. Whiffen’s lack of success on each one of them, and this Court’s concerns about Mr. Whiffen’s lack of candour relating to his new business started in May, 2023, costs (inclusive of disbursements) are awarded to the Defendant in the amount of $3,500.00, payable forthwith. DATED at Moncton, New Brunswick this 1 st day of February, 2024. _____________________________________ Robert M. Dysart, Judge of the Court of King’s Bench of New Brunswick