Basttiston v. Microsoft Canada Inc., 2021 ONCA 727
Mr. Basttiston had worked for almost 23 years for Microsoft Canada Inc. when he was terminated, without cause, in August of 2018. He sued for wrongful dismissal claiming an entitlement to compensation, including compensation under a stock award agreement, until the expiry of the period of reasonable notice.
At trial one of the issues was Mr. Basttiston’s entitlement to unvested stock award bonuses that would have vested during the notice period. He and other Microsoft employees had received information about stock awards via an email requiring the employee to confirm their review and acceptance of the terms of the stock award agreement and the accompanying Plan documents, which stated that any unvested stock awards did not vest to the employee if their employment ended for any reason.
Microsoft’s records showed that Basttiston had accepted the stock awards online for several years prior to his termination. However, he testified that he had not read the lengthy Stock Award Agreement, nor had Microsoft ever directed his attention to the termination provisions affecting his unvested stock awards if he were to be terminated without cause. Despite finding no ambiguity in the termination provisions, which excluded Basttiston’s right to vest his stock awards after being terminated without cause, the trial judge held that the provisions, which were harsh and oppressive, were not enforceable as they had not been drawn to his attention.
On appeal, the only issue was the trial judge’s conclusion entitling Basttiston to unvested stock awards after his termination. The Court of Appeal allowed the appeal of the trial judge’s finding that Microsoft had not given Basttiston adequate notice of the termination provisions because the trial judge had not considered that Basttiston:
- Expressly agreed to the terms of the stock award agreement.
- Testified he chose not to read the agreement even though he clicked the box to confirm he had read it.
- Gained an advantage from his own wrongdoing when he misrepresented his consent to Microsoft, thereby putting himself in a better position than an employee who didn’t misrepresent.