COURT OF APPEAL FOR ONTARIO

CITATION: Dimson v. KTI Kanatek Technologies Inc., 2013 ONCA 454

DATE: 20130702

DOCKET: C56437

MacFarland, Watt and Epstein JJ.A.

BETWEEN

Fred Dimson

Plaintiff (Appellant)

and

KTI Kanatek Technologies Inc.

Defendant (Respondent)

Daniel A. Lublin and Aaron Rousseau, for the appellant

Andrew J. McCreary and Cheryl A. Waram, for the respondent

Heard and released orally: June 24, 2013

On appeal from the judgment of Justice Sidney N. Lederman of the Superior Court of Justice, dated November 23, 2013.

ENDORSEMENT

The Appeal

[1] The appellant moved for summary judgment seeking a determination of the enforceability of a clause in the written employment contract he entered into with the respondent, his former employer. As a result of the motion judge’s rejection of the appellant’s arguments regarding the import of the clause, the appellant’s action for common law severance damages for wrongful dismissal, was dismissed.

[2] The appellant appeals primarily on the basis that the clause in issue is void because, contrary to s. 5(1) of the Employment Standards Act (“ESA”), it seeks to avoid the application of ss. 61 and 65 of the ESA.

[3] The provision in the contract, the interpretation of which is central to this appeal, is as follows:

18(d) If at any time Kanatek provides you with a bonus, it will not be included in the calculation of payment for the purposes of this Article, or as otherwise agreed to or required by the Employment Standards Act.

[4] The motion judge provided detailed reasons for rejecting the appellant’s primary submission that this clause was unenforceable as being an attempt to contract out of the ESA. The motion judge interpreted the clause as preserving the appellant’s right to the inclusion of a bonus in the calculation of his termination entitlement if both parties otherwise agreed or if it was required by the ESA.

[5] We agree with the motion judge’s interpretation of the provision particularly when interpreted, as it must be, in the context of the entirety of clause 18. We refer specifically to 18(c) that provides as follows:

In addition, KANATEK may terminate this Agreement at its sole discretion for any reason, without cause, upon providing Employee all payments or entitlements in accordance with the standards set out in the Ontario Employment Standards Act, as may be amended from time to time.

[6] We agree with the motion judge’s observation that it would be inconsistent to interpret 18(d) as denying the appellant his entitlement under the ESA when 18(c) expressly provides that the appellant would be provided with everything to which he was entitled under the ESA.

[7] We see no reason to interfere with the motion judge’s conclusion that the provision is clear and does not purport to bypass ss. 61 and 65 of the ESA. There is, therefore, no need to consider the appellant’s other arguments relating to ambiguity, misinterpretation, or the principle of contra preferentem.

[8] Accordingly, the appeal is dismissed.

[9] The respondent is entitled to its costs on the appeal fixed in the sum of $10,000 inclusive of disbursements and HST.

The Cross-Appeal

[10] The respondent seeks leave to appeal the motion judge’s award of costs on the basis that the motion judge erred in principle in fixing upon an amount that was unreasonably low.

[11] The motion judge determined the quantum of costs based on his view that this matter could have been dealt with under rule 21 as opposed to rule 20. In our view, he was best placed to make that determination and we see no reason to interfere.

[12] Therefore, while leave to appeal costs is granted, the cross-appeal is dismissed.

[13] The respondent by cross-appeal is entitled to its costs of the cross-appeal fixed in the sum of $1,500 inclusive of amount of disbursements and HST.

“J. MacFarland J.A.”

“David Watt J.A.”

“Gloria Epstein J.A.”