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The Court of Appeal concluded that the officers of Premier Tech had falsely reassured Dollo that his options could be exercised should his employment be terminated.
The Court of Appeal also accepted Dollo's statement that in the absence of such promises, he would have exercised his options before his employment was terminated. The Court therefore concluded that Dollo was entitled to expect to be able to exercise his options even after his employment was terminated.
By refusing to exercise its discretion to this effect, the Board of Directors acted in a manner that was oppressive and unjust towards Dollo. After reading this decision of the Court of Appeal, the question remains as to whether the result would have been the same if not for the fact that the litigious provision gave the Board of Directors the discretion to circumvent. It will be interesting to see whether the decision of the Court of Appeal will be brought before the Supreme Court of Canada and whether similar provisions, that do not give a Board of Directors any discretion, will be declared valid by the courts in the future.
Specialist advice should be sought about your specific circumstances. Your LinkedIn Connections at Firm. The Court of Appeal's Decision Section 8.
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In the employment law context, a frustration of contract occurs when an unforeseen event renders The change dealing with on-call employees comes into effect on January 1, This publication provides an overview of the Canadian tax implications of stock options issued to employees who are resident in Canada for tax purposes.
As previously described, the exercise of employee stock options creates a stock option benefit that will be taxed as employment income.
However, in determining the tax implications of acquiring shares pursuant to the exercise of a stock option, a deduction equal to one-half i. Accordingly, this income cannot be offset by a capital loss including any capital loss realized on the subsequent sale of any optioned shares at a trading value that has declined following the exercise of the options. However, typically the employer will look to the employee exercising the options to fund the required withholding.
Consequently, it may be necessary for the employee to immediately sell some shares acquired to satisfy the tax remittance in addition to the acquisition costs to exercise the stock options. The issuance of shares upon the option exercise does not provide a tax deduction to the employer. Stock options of Canadian Controlled Private Corporations.
In contrast to the taxation upon exercise for public company stock options, where stock options are issued by a Canadian Controlled Private Corporation CCPC , the taxation of the employment benefit is deferred until the employee disposes of the shares. This deferral recognizes the reduced liquidity for CCPC shares versus public company shares. In addition, the aforementioned requirements to withhold and remit source deductions for the taxable stock option employment benefit do not apply where the taxation of the benefit is deferred under the above rules applicable to CCPCs.
As previously outlined, the acquisition costs to exercise the options and the stock option benefit i. However, where an employee already owns other shares of the employer company, the ACB of all identical shares will be averaged amongst the total shares held. Alternatively, where stock options are exercised and the optioned shares are sold immediately, or within 30 days of exercise and no other identical shares are acquired or disposed during this period , the ACB of the optioned shares sold will not be averaged and can be isolated to that specific sale of the newly-optioned shares to prevent the recognition of any accrued gain or loss on the existing shares held.
Often, a Canadian resident is employed by a Canadian subsidiary of a U. In addition, if the employee provided employment services outside of Canada, the employee may be subject to taxation in that foreign jurisdiction on the stock option benefit which entails additional tax implications.
When an individual dies holding unexercised stock options, the individual may have a deemed employment benefit arise at death. The deemed income inclusion for the deceased employee will be the difference between the FMV of the option rights immediately after death and the amount paid if any to acquire the stock options.
To be eligible for this incentive, the option shares must be publicly-traded securities and the shares or proceeds acquired through exercising the options must be donated to a qualifying charity.