Nordstrom Canada

What is a Claims Process?

On May 30, the Court approved a Claims Process to determine the debts of Nordstrom Canada. This is a normal process in a Companies’ Creditors Arrangement Act proceeding. It is necessary to determine the total amount of valid debts of an insolvent company so that an appropriate Plan of Arrangement can be developed and approved by the creditors and the court. This Plan of Arrangement is the mechanism for determining how to distribute the proceeds of the liquidation to the creditors on a fair and equitable basis.

Bear in mind that an insolvent company does not have sufficient funds and assets to satisfy its debts in full – that is why it is insolvent and under court protection. Therefore any Plan of Arrangement will indicate what portion of a claim can be paid from the liquidation proceeds. No valid claim will be paid at 100% of its value. The actual percentage for payment purposes will not be known until all of the following occur: (1)  the liquidation is fully completed,  (2) the debts of the company are ascertained through this Claims Process, and (3) a Plan of Arrangement is developed and approved by the Court. We will continue to update employees about these processes on our website as they move forward. 

What does the Claims Process Mean for Me?

The Claims Process is separate from the Employee Trust, which ensures that Nordstrom Canada employees who do not resign before their Separation Date receive their full entitlement to statutory termination pay.  Your entitlement to notice (and for Ontario employees with more than 5 years’ service, statutory severance pay) was set out in your Notice of Termination dated March 22, 2023.  You do not need to do anything to receive the statutory termination pay owing to you.

All terminated employees will receive communications from Nordstrom Canada or the Monitor on or around June 20, 2023 providing information about the Claims Process.

If the Monitor believes your claims against Nordstrom Canada are fully satisfied by the Employee Trust, you will get a general letter explaining the Claims Process.

A small number of employees will have additional claims that are not paid by the Employee Trust and are known to Nordstrom Canada and the Monitor.  If the Monitor knows you have a such a claim, they will send you a notice of negative claim setting out their calculation of your claim. If you agree with the calculation in the notice, you do not need to take any other steps, and your claim will automatically be filed in the Claims Process. Your claim will then become a recognized debt and form part of the Plan of Arrangement deals with for payment. The Monitor’s letter will also explain the process to dispute that calculation if you disagree with it. Disputes must be filed by August 4, 2023.

In addition, if you believe you have a claim for something other than notice of termination or statutory entitlements, and it  has not been identified by the Monitor in the notice you receive, you must file a Proof of Claim no later than August 4, 2023.  The Proof of Claim form and instructions on how to complete it are available on the Monitor’s website here.

As Court-appointed Employee Representative Counsel, our firm is available to assist employees in the Claims Process.   If you disagree with the Monitor’s calculation of your claim or if you believe you  have a claim that has not been identified by the Monitor, please contact us at NordstromCanada@upfhlaw.ca, so that we can provide you with advice.

Some BC employees may notice that they have received two top up pay stubs/notices of deposit during this pay period. We have discussed this with the Monitor and the Company and can advise as follows. The two top up cheques in this pay period represent two different amounts: 1) your regular top up payment for this pay period, and 2) an additional one-time catch up payment to some BC employees in order to provide all your entitlements during the working notice period. Please note that this is an issue which only affects some BC employees.

Employee Representative Counsel has been advised of the second payment and is in agreement that such payments should be made in order to ensure all employee entitlements are fulfilled pursuant to employee contracts, the Notice of Termination, and applicable BC legislation. If you have further questions, please do not hesitate to contact the ERC at NordstromCanada@upfhlaw.ca.

Nordstrom Canada has shared with us their FAQ providing important information for employees after their separation date.  This document addresses the following frequently asked questions, among others:

• How do I view my pay stubs?
• How can I view my T4?
• How do I update my personal information for the Nordstrom Benefits Portal and Payroll?
• Who do I call with questions about my benefits?

Detailed instructions for how to access pay statements are available here.

In addition, Nordstrom Canada has shared with us this document about Group RRSP and DPSP Options for employees’ information.

Employees will continue to have access to Workday for 3 months after their separation dates, where they can access these documents.

Nordstrom Canada has brought a motion that will be heard by Chief Justice Morawetz on May 30th, seeking the Court’s approval of a Claims Process to determine all of the liabilities of Nordstrom Canada, in anticipation of a distribution of the proceeds of the liquidation to creditors, including employees. 

The details of the proposed Claims Process are contained in the Motion Record that can be found on the Monitor’s website here: https://www.alvarezandmarsal.com/content/nordstrom-canada-motion-materials

If the Claims Process Motion is approved by the Court, all Nordstrom Canada employees will receive a letter providing an explanation of the Claims Process and a link to the relevant forms to file a Proof of Claim.  We are available to assist employees in assessing whether they have claims and in filing proof of claims.

The vast majority of employees are not anticipated to have claims in the claims process, since their contracts entitle them to the payment of statutory termination entitlements, which is being fully funded by the Employee Trust.

A small group of employees will have claims in the claims process.  Under the proposed Claims Process, employees with known claims will receive a notice advising them of the Monitor’s calculation of their claim.  This notice is called a negative notice claim because employees who accept the calculation are not required to take any further steps to prove their claim. Employees who dispute this calculation will have access to a process to have their dispute addressed either through negotiated resolution with Nordstrom Canada and the Monitor, or if necessary, through the use of third-party resolution with a Court-appointed Claims Officer.

Employee Representative Counsel is aware of two small classes of employees who will have claims that are known to the Company and the Monitor.  These classes are:

• employees who have resigned during the notice period and whose severance pay under the Employment Standards Act, 2000 (Ontario) was therefore not paid by the Employee Trust, and
• certain Ontario employees with contracts of employment executed in 2020 or earlier that entitle them to common law reasonable notice of termination.

For those few employees with contractual entitlements to common law reasonable notice, as opposed to vast majority of employees whose contracts limit them to statutory entitlements upon termination, Employee Representative Counsel has negotiated a formula for the calculation of common law reasonable notice of termination.

The common law reasonable notice  formula set out in the Claims Process Motion has been negotiated taking into account the common law caselaw, including the use of the well-known “Bardal factors,”[1] as well as the formulas for employee notice claims approved in other CCAA proceedings. The formula for determining the period of common law reasonable notice for eligible employees takes into account the employee’s position/character of employment, age, length of service, length of working notice and payments received pursuant to the Employee Trust. The Claims Process Motion seeks the Court’s approval of that formula.

Employee Representative Counsel supports the proposed Claims Process.  We will be attending the motion hearing and will report back to employees about the proceedings with a further update on our website.

[1] The “Bardal” factors derive from Bardal v. Globe & Mail Ltd. (1960), 1960 CanLII 294 (ON SC), which sets out that the period of common law reasonable notice for any individual employee will depend on their character of the employment, the employee’s length of service, the employee’s age, and the availability of comparable employment in the market.

Today Nordstrom Canada provided the following update regarding top up payments to its employees, which we reproduce in full here, for your ease of reference:

 We are writing to provide another update regarding “top up” payments funded by the Employee Trust established by Nordstrom Canada’s parent company, Nordstrom Inc. We are happy to advise that we are on track to achieve our objective of paying future “top up” payments at the same time as our regularly scheduled payroll.  Accordingly, we expect that eligible employees will receive their next “top up” payment from the Employee Trust – in addition to their base salary or wages for all hours worked – on April 14, 2023 with respect to the pay period from March 26 to April 7, 2023.  These two payments – the base salary/wages for hours worked and any applicable “top-up” – will thereafter continue to be paid on the regularly scheduled pay date until your employment ends.

Please note that, due to systems issues, you may see information regarding your base salary or wage payment for all hours worked on WorkDay before you see information regarding any applicable “top up” payment. While the details of one payment may be visible before the other, please rest assured that eligible employees should receive both the “top up” payment and payment of their base salary or wages for all hours worked on April 14, 2023 (and going forward on the applicable pay day(s) in accordance with our regular payroll schedule).

As noted, any “top up” and other payments from the Employee Trust will be provided via a separate direct deposit or cheque and will be subject to the terms and conditions of the Employee Trust and the applicable Court order.  

Thank you for your continued commitment to Nordstrom Canada.

For more information about the top up payments, please see the FAQ on April 7 Payments found at the link on the right side of this page.

We were informed by Nordstrom Canada that the first set of top-up payments from the Employee Trust for the pay period from March 12th to March 25^th will be delayed until Friday, April 7.  Below is the statement that we understand the company has communicated to all employees:

As part of our commitment to keeping you informed during the CCAA proceedings, we wanted to provide an update about the Employee Trust established by Nordstrom Canada’s parent company, Nordstrom Inc.  The Employee Trust is designed to provide eligible Nordstrom Canada employees with certain protections, as set out in applicable employment standards legislation. As part of these protections, certain eligible employees will receive a “top up” payment funded by the Trust in addition to their wages for services performed, to ensure that they are receiving at least their ‘regular weekly wages’ throughout the notice period as required by applicable employment standards legislation.

We are working with the Court-appointed Monitor, as the Administrator of the Employee Trust, to prepare the first payments from the Trust and we are pleased to advise that we anticipate that the first “top up” payment funded by the Employee Trust will be made to eligible employees on April 7th with respect to the pay period from March 12th to March 25th.  We anticipate that future “top up” payments will be paid at the same time as our regularly scheduled payroll.

Please note that any “top up” and other payments from the Employee Trust will be provided via a separate direct deposit or cheque and will be subject to the terms and conditions of the Employee Trust and the applicable Court order.  

As Employee Representative Counsel, we can advise on a number of issues related to your employment, its termination and your entitlements during the Nordstrom Canada liquidation process. However, we are not a substitute for your Human Resources department. So for example, we can tell you how your rate is calculated in your province during a notice period, but we cannot advise you what Nordstrom’s calculation is. For that, you need to ask your Human Resources contact. If you then disagree with that rate, we can verify whether it meets the legal requirements and take up any disputes about that with the company on your behalf.

We have received a number of questions from employees about what will happen if they choose to resign their employment.  We have developed FAQs for employees in BC, Alberta and Ontario, answering common questions and providing our advice.

If your question is not answered in these FAQs, please do not hesitate to email us at NordstromCanada@upfhlaw.ca. Please include copies of your contract (available through Workday) and your Notice of Termination so that we can provide you with individualized advice. 

This morning we attended a motion at the Ontario Superior Court of Justice where Chief Justice Morawetz heard Nordstrom Canada’s motion seeking approval of the appointment of a liquidator to engage in a sale to realize upon Nordstrom Canada’s assets. No parties opposed the relief being sought.

Chief Justice Morawetz approved (i) the appointment of a contractual joint-venture of Hilco Merchant Retail Solutions ULC, Gordon Brothers Canada ULC,  Tiger Asset Solutions Canada ULC, and B. Riley Retail Solutions LLC to act as liquidators; (ii) the approval of Sales Guidelines; and (iii) the extension of the stay granted during the CCAA proceedings until June 30, 2023. Under the Sales Guidelines, the liquidation sale is scheduled to begin tomorrow and conclude no later than June 30, 2023.

The Liquidation Sale Approval Order is available on the Monitor’s website, here. The materials relied upon by Nordstrom Canada in support of this Order are also available on the Monitor’s website, under the heading Motion Materials.

We will keep you advised of further developments in the CCAA proceedings as they occur, via this website.

Nordstrom Canada has brought a motion that will be heard by Chief Justice Morawetz this coming Monday, March 20th, seeking the Court’s approval of the appointment of a liquidator to engage in a sale to realize upon Nordstrom Canada’s assets.  Nordstrom Canada, with the support of the Monitor, is seeking Court approval for a joint-venture of Hilco Merchant Retail Solutions ULC and Gordon Brothers Canada, ULC to act as liquidators, the approval of Sales Guidelines, and the extension of the stay granted during the CCAA proceedings.

Employee Representative Counsel will be attending and will report back to employees about the proceedings with a further update on our website.

This morning we attended the Comeback Hearing in the Ontario Superior Court of Justice.  The hearing was uneventful, as no parties opposed the relief being sought.  

The Court issued an Order, which extended the CCAA proceedings until March 20, 2023, increased the quantum of certain court-approved charges on the estate, and approved a Key Employee Retention Plan, or KERP.

Under the KERP, certain store employees and non-store employees will receive a one-time lump-sum payment if they continue to provide services to Nordstrom Canada until their termination date, and do not have their employment terminated for cause prior to their termination date.  

The KERP was designed by Nordstrom Canada in consultation with the court-appointed Monitor, to encourage employees whose services are critical to the orderly wind-down of Nordstrom Canada’s business (“KERP Participants”) to stay with the business until their services are no longer required.  

The Monitor, who advises the Court on the operation of Nordstrom Canada’s business during the proceedings, supported the approval of the KERP because: (a) it will provide stability to, and facilitate, the orderly wind-down by encouraging key active employees to remain with Nordstrom Canada, as required; (b) the KERP Participants are considered to be key to the execution of the orderly wind-down and their participation will assist in maximizing realizations for the benefit of stakeholders; and (c) given the nature of the merchandise and scale of store operations, particularly at the full-line stores, the KERP is reasonable and appropriate in the circumstances to ensure that value is preserved and maximized during the orderly wind-down.

KERP Participants will have received a letter via their work email advising them that they are being offered a KERP. This letter advises individual eligible employees of the terms of their KERP, including the applicable percentage of their current annual base salary (or, if applicable, the percentage of their current base hourly wage rate, calculated on an annualized basis) that the one-time lump sum KERP payment will amount to. This is designed to ensure that KERP payments reflect the individual’s level of duties and responsibilities.

KERP Participants will be required to confirm their understanding and acceptance of the terms and conditions of the KERP via DocuSign by March 15, 2023.

Tomorrow, there will be a hearing before the Court to review the Initial Order and continue the CCAA proceedings.  This hearing is required under the CCAA, and is generally referred to as the “Comeback Hearing”.

Employee Representative Counsel will be attending and will report back to employees about the proceedings with a further update on our website.

An Employee Representative Counsel (ERC) is court appointed counsel whose responsibilities include assisting affected employees in a Companies’ Creditors Arrangement Act (CCAA) process like the one your employer is now engaged in.

The terms of our appointment are contained in the Initial Order issued by the Court on March 2, 2023. The Initial Order sets out the scope of our representation rights and provides that we represent eligible employees regarding any employment, human rights or other workplace law issues affecting them in the CCAA Proceedings, including with respect to the Employee Trust Agreement and any future claims process.

Pursuant to the Initial Order, Nordstrom Canada is required to pay our fees and disbursements. However, our responsibilities as Court-appointed officers are to the employees we represent, not to Nordstrom Canada.

Typically, we assist employees in understanding what is happening in the proceedings, in ensuring their payments from the Employee Trust are correct and in accordance with the Trust Agreement and any Court Orders about the Trust Agreement, resolving any disputes about such matters, and where there is a claims process, assisting employees in making employment-related claims other than claims for monies covered by the Employee Trust.

The ERC is also empowered to negotiate with Nordstrom Canada, the Monitor and other stakeholders, on your behalf, to ensure your interests are represented in these proceedings. The kinds of issues an ERC typically negotiates about include individual litigation which has been stayed (stopped) because of the Court Order placing Nordstrom Canada in the CCAA process, and also larger issues with respect to plans of arrangement for the payment of outstanding claims, or access to government programs which may become available to you as a result of the cessation of Nordstrom Canada’s business.

We also remain available to the employees throughout this process to assist with your individual questions about the process, your entitlements and other matters relating to your employment with Nordstrom Canada.

The Court has approved the creation of an Employee Trust, which is designed to ensure that every eligible Nordstrom Canada employee receives their full statutory entitlement to notice, severance, and mass layoff and mass termination pay.

The Employee Trust is being funded by Nordstrom, Inc., and administered by the court-appointed Monitor, Alvarez & Marsal, in collaboration with Nordstrom Canada and the Trustee.

The Employee Trust ensures that after you receive notice of the termination of your employment, you will continue to receive your regular weekly wages for the entirety of your applicable statutory notice period.  However, employees who quit before their separation date will not be eligible for further pay either from Nordstrom Canada or from the Employee Trust after their last day of employment. Further, employees who are terminated for cause will not be eligible for further pay from Nordstrom Canada or the Employee Trust, unless required by applicable employment standards legislation.

How will I receive my pay?

Employees with eligible claims under the Employee Trust will receive their pay as usual through Nordstrom Canada’s payroll system during their applicable statutory notice period (e.g., direct deposit or cheque).

What is my statutory notice period?

Your statutory notice period depends on what province you live in, how long you have been working for Nordstrom Canada, and potentially on the number of employees at your store.

Ontario Employees

The Employment Standards Act, 2000 provides the following termination entitlements:

• Notice of termination:
• Individual notice of termination is between 1 and 8 weeks of pay, depending on your years of service.
• If more than 50 employees from a single establishment are terminated within 4 weeks, the amount of notice required for all employees at the establishment is between 8 and 16 weeks of pay, depending on the number of employees terminated.
• Employees who receive insufficient notice of termination are entitled to pay-in-lieu thereof.

• Severance pay is payable to employees who have worked for Nordstrom Canada for 5 years or more, and eligible employees are entitled to one week of severance per year of employment.

Alberta Employees

The Employment Standards Code provides for the following termination entitlements:

• Notice of termination: Notice of termination is between 1 and 8 weeks of pay, depending on your years of service. Employees who receive insufficient notice of termination are entitled to pay-in-lieu thereof.

British Columbia Employees

The Employment Standards Act provides the following termination entitlements:

• Notice of termination:
• Individual notice of termination is between 1 and 8 weeks of pay, depending on your years of service.
• If more than 50 employees from a single location are terminated within a 2 month period, the amount of notice required for all employees at the location is between 8 and 16 weeks of pay, depending on the number of employees terminated.
• Employees who receive insufficient notice of termination are entitled to pay-in-lieu thereof.

How are my regular weekly wages calculated?

The method for calculating your regular weekly wages is set out in your provincial employment standards legislation.

• Ontario Employees
  In Ontario, an employee’s regular wages for a regular work week is the average amount of regular wages earned by the employee for the weeks in which the employee worked in the period of 12 weeks preceding the date on which the employment was terminated or severed.
• Alberta Employees
  In Alberta, when an employee’s wages vary from one pay period to another, termination pay is calculated using the weekly average of the employee’s regular wages for the 13 weeks in which the employee worked preceding the date of termination.
• British Columbia Employees
  In British Columbia, where hours and pay fluctuate weekly, the calculation is based on the “average” weekly hours, which is the total of all weekly wages during the last 8 weeks in which the employee worked divided by eight.

What if I am not being paid correctly?

If you believe that you are not being paid appropriately, that your claims under the Employee Trust have not been appropriately calculated, or if you have other disputes about your pay during the notice period, please complete a Notice of Dispute in the attached form and send a copy to the Monitor and to us as Employee Representative Counsel.

What if I am on a leave of absence?

If you are currently on a leave of absence (such as pregnancy/parental leave or sick leave), you will be eligible to receive pay based on your average hours or your salary during the notice period from the Employee Trust.

Will my benefits continue?

Yes, it is expected that benefits coverage for participating employees will remain unchanged while you continue working, including health, dental, disability, and life insurance. At this time, benefit claims can continue to be submitted in the ordinary course

For employees in Ontario, benefit coverage will continue after your separation date, as funded by the Employee Trust, if and as required by the Employment Standards Act, 2000.

Nordstrom Canada will provide additional information regarding conversion options and claims deadlines in the coming weeks.

What about the employee discount?

As of today, your employee discount continues; however, this is subject to change during the wind-down process. We anticipate that all employee discounts will cease with the commencement of the formal liquidation sale to be approved by the Court that is expected to begin on or around March 20, 2023.

How will my vacation be affected?

Eligible employees will continue to earn vacation similar to today (and in any event no less than required by applicable employment standards legislation), and will continue to be subject to Nordstrom Canada’s normal policies and procedures regarding approval of time off.

All accrued but unpaid vacation pay will be paid out following your last day worked.

What happens if I quit?

Employees who quit before their separation date forfeit their right to receive payments from the Employee Trust.

What happens if my employment is terminated for cause?

If an employee’s employment is terminated for cause, they will not be eligible for further pay from Nordstrom Canada or the Employee Trust, unless required by applicable employment standards legislation.

Am I giving up any legal entitlements by accepting money from the Employee Trust?

Employees who receive pay from Nordstrom Canada and/or the Employee Trust during their statutory notice period are deemed to release, among others, Nordstrom Canada and Nordstrom, Inc. of liability for the pay they have received.

By continuing to work and receive pay during the statutory notice period, you are not giving up your rights to pursue any claims other than claims for the pay that you are receiving.

What if I have other claims against Nordstrom Canada?

Under the CCAA, the Court will supervise a claims process to determine all the liabilities of Nordstrom Canada, and make a fair distribution to all creditors based on the available funds in the estate.  This process has not yet begun.

We will continue to represent employees with claims for additional compensation above their statutory entitlements as the CCAA proceedings continue, including in any claims process.  We will provide more information regarding that process once the claims process begins.

As you know, on March 2, 2022, Nordstrom Canada Retail, Inc. and several related companies (“Nordstrom Canada”) were granted protection from their creditors under the Companies’ Creditors Arrangement Act (“CCAA”).

Alvarez & Marsal Canada Inc. was appointed as the monitor in the CCAA Proceedings. The monitor oversees Nordstrom Canada’s operations during the CCAA Proceedings as a neutral, Court-appointed officer.  The Monitor maintains a regularly-updated website where court filings can be accessed here.

Our firm has been appointed by the Court as Employee Representative Counsel to represent the interests of all of Nordstrom Canada’s store-level employees and certain non-store employees.  The terms of our appointment are set out in the Initial Order of the Court, in accordance with which our fees will be paid by Nordstrom Canada.

If you do not wish to be represented by our firm you may opt out of this arrangement by completing the Opt-Out form that will be posted on the Monitor’s website and returning it to the Monitor, as directed on the form.

Please note that if you choose to opt-out, you will not lose any entitlement you might have had to monies from the Employee Trust, nor will you lose access to any additional Claims Process that may be carried out in these proceedings. However, any legal assistance which you might have accessed from the ERC, without cost to you, will not be available. If you wish to obtain legal assistance about your rights in this CCAA process, it will be at your own expense if you opt out. We would ask you to consider this matter carefully, as opting out can have financial consequences for you.

If you have any questions about the Opt-Out process, please contact the Monitor at NordstromCanada@alvarezandmarsal.com or 1-844-768-8244.

If you have any additional questions about the proceeding, please email us at NordstromCanada@upfhlaw.ca or call us on our toll-free number at 1-866-308-1771.