DATE: 20021001
DOCKET: C35870

COURT OF APPEAL FOR ONTARIO

RE: JOSEPH J. MAGYAROSI (Plaintiff (Appellant)) – and – BERG CHILLING SYSTEMS INC. (Defendant (Respondent))

BEFORE: McMURTRY C.J.O., CARTHY AND GOUDGE JJ.A.

COUNSEL:
Carol Street For the appellant
David Hager For the respondent

HEARD: September 20, 2002

On appeal from the judgment of Justice Bonnie L. Croll of the Superior Court of Justice dated January 25, 2001.

E N D O R S E M E N T

Released Orally September 20, 2002

1[1] We agree with the trial judge that this case turns on the interpretation to be given to Article 4 of the appellant’s employment contract of February 1, 1996. We also agree with her interpretation of that article. It entitled the employer, on proper notice, to reduce the appellant’s salary and commissions as it did. In other words, the Article constitutes the appellant’s agreement to the employer’s right to effect that reduction which cannot therefore be said to be a unilateral change made without contractual authorization. It was thus not an act of constructive dismissal.

2[2] This contract was negotiated and signed by the appellant. In a brief discussion with a lawyer before doing so, he was advised not to sign. Both parties lived under the contract for several years. This is not a case of the appellant signing under duress. Nor is there any suggestion that the employer was using Article 4 in a colourable attempt to effect a termination. The changes effected in April 1999 come within the reach of Article 4. They do not constitute a termination and therefore do not trigger Article 58 of the Employment Standards Act.

3[3] As to costs, in our view, the trial judge did not err in the exercise of her discretion. We would therefore dismiss the appeal.

4[4] We do not think that it is fair to visit any more costs on the plaintiff appellant and there will therefore be no order as to costs.