Apples to Apples: Using the Variable Earnings of a Fired Employee’s Replacement to Calculate Damages

Dan Wilband

In a new $2.54 million wrongful dismissal award (Warren v. Canaccord Genuity Corp., 2026 ONSC 547), the court calculated the bonus by comparing the dismissed employee to his replacements.

An investment banker in Ontario was fired by his employer in September 2019 after 18 years as a Managing Director in mining.

Just five months later, the mining market exploded into a once-in-a-decade bull run. Record revenues. Blockbuster deals. The Managing Director who replaced him earned huge bonuses of $3 million in 2021 and $2.85 million in 2022.

The legal battle centred on one question: How do you calculate what a fired employee would have earned during a notice period when market conditions transformed?

The employer argued for the standard approach of averaging his past three bonuses, which was around $670,000 annually.

The employee argued he should receive bonuses comparable to what his replacements actually earned during the notice period.

Justice Schabas sided with the employee. The comparator approach made sense because bonuses fluctuated wildly with market cycles, and the boom happened during the 21-month notice period.

The result? He was awarded $2.54 million *after* mitigation.

This precedent matters for anyone in roles with variable compensation tied to market conditions or company performance. You cannot fire someone on the eve of a huge boom and then compensate them based on the preceding downturn.

Wrongful dismissal damages must reflect what really would have happened during the notice period, not what came before it.

This is a reminder that termination decisions can carry consequences that extend into future performance periods, especially when compensation is tied to results you will achieve without the terminated employee.

Warren v. Canaccord Genuity Corp., 2026 ONSC 547