CITATION: Luney v. Day & Ross Inc., 2015 ONSC 1440
DIVISIONAL COURT FILE NO.: 51/15
DATE: 20150306
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
H. Sachs, Nordheimer and D.L. Corbett JJ.
BETWEEN:
Peter Luney
Appellant/ Plaintiff
– and –
Day & Ross Inc.
Respondent/ Defendant
Anne Marie Frauts and Michael Hamilton, for the Appellant/(Plaintiff)
Jordan Winch, for the Respondent/ (Defendant)
HEARD at Toronto: February 26, 2015
H. SAchs j.:
Introduction
[1] The Plaintiff appeals from an order of Gorman J., made on October 2, 2013, dismissing his motion for partial summary judgment with costs fixed and payable forthwith to the Defendant in the amount of $10,628.77.
[2] The Plaintiff’s action arises out of his employment with the Defendant, who operates a federally-regulated undertaking (an inter-provincial trucking company) that is subject to the Canada Labour Code, R.S.C. 1985, c. L-2, as amended (the “Code”). The Defendant terminated the Plaintiff’s employment without cause and offered the Plaintiff a severance package that the Defendant maintains was consistent with its obligations under an employment contract that was signed by the Plaintiff at the commencement of his employment.
[3] The Plaintiff brought a partial summary judgment motion seeking a finding that the termination provision in the employment contract is unenforceable for two reasons: (1) it is ambiguous and did not oust his entitlement to reasonable notice at common law; and (2) it is unlawful as it violates the Code.
[4] The motion judge dismissed the Plaintiff’s motion with costs. On this appeal, the Plaintiff not only seeks to set aside the motion judge’s decision on the merits, but also argues that the motion judge erred when she failed to order that costs be reserved to the trial judge.
[5] For the reasons that follow, I would dismiss the appeal.
Factual Background
[6] The Plaintiff was employed by the Defendant from November 15, 1999, until February 16, 2012 (a period of 12 years and 3 months). At the time of his termination, the Plaintiff was a Senior Account Manager. He was one of eight employees terminated by the Defendant as a result of a corporate re-organization.
[7] The Plaintiff’s employment was subject to an employment agreement, signed on November 9, 1999, which contained a termination provision (the “Termination Provision”). The Termination Provision reads, as follows:
Your employment may of course, be terminated at any time for ‘just cause’, in which case you will not be entitled to any notice or severance payment.
If your employment is terminated for other than ‘just cause’, or if a competent tribunal should rule that your termination was ‘unjust’, you will be entitled to two weeks [sic] notice or pay in lieu of notice and a severance of one week’s regular pay for each full year of service, less statutory deductions. The payments are not to exceed the equivalent of 15 weeks [sic] pay.
It is understood and agreed that in the event the aforesaid notice and severance entitlements are not in conformity with the notice and severance provisions prescribed by the Canada Labour Code or other similar legislation, the statutory minimum’s [sic] shall apply and be considered reasonable notice and severance. Discussion of individual salaries may be grounds of dismissal.
The foregoing notice and severance payments will satisfy any and all obligations to you by Day & Ross Inc. or any affiliated company arising out of or in any way connected with the termination of your employment, including any obligations arising under the Canada Labour Code and similar legislation for notice, severance pay or reinstatement.
[8] When the Defendant terminated the Plaintiff’s employment, it offered the Plaintiff notice in the form of monetary compensation amounting to a minimum of 9 weeks’ pay and a maximum of 14 weeks’ pay. This offer was conditional on the Plaintiff signing a release. The Plaintiff did not accept the offer. Instead, he retained a lawyer and commenced an action seeking damages for wrongful termination.
Standard of Review
[9] This appeal involves questions of contract and statutory interpretation that do not rely on resolving questions of fact. Thus, the appropriate standard of review is correctness.
Did the motion judge err when she failed to find that the Termination Provision failed to rebut the presumption of reasonable notice?
[10] There is no issue that there is a common law presumption of an entitlement to reasonable notice in the event that an employee is terminated without cause. There is also no issue that any agreement that purports to rebut that presumption must do so in clear language. Thus, the only question in dispute is whether the language in the Termination Provision is clear enough to rebut the presumption in question. According to the Plaintiff, it is not as it fails to reference the common law; it only references the Canada Labour Code or similar legislation.
[11] There is no authority for the proposition that in order to rebut the presumption of reasonable notice, an employment agreement must explicitly reference the common law entitlement to notice. What the case law does is examine the agreements in question to determine if the language in those agreements is clear enough to rebut the presumption of reasonable notice at common law.
[12] In this case, the Termination Provision states that the notice and severance payments provided for “will satisfy any and all obligations owed to you by……, including any obligations arising under the Canada Labour Code and similar legislation…” As the motion judge found, this language is clear and cannot be read as confined to legislative entitlements. The use of the phrase “any and all” is obviously broad enough to cover the Defendant’s obligations at common law and the word “including” makes it clear that these obligations are not limited to the ones arising under statute.
[13] The fact that the motion judge only made reference to one case on this point is reflective of the fact that the question before her turned on the wording of the Termination Provision and the case she relied on had a provision that was similar to the one she was considering.
Did the motion judge err when she failed to find that the Termination Provision contravened the Code?
[14] The Plaintiff submits that the Termination Provision contravenes the Code in two ways. First, it attempts to limit the rights and remedies available to a competent tribunal under the Code. Second, the Plaintiff submits that under the Code, he would have been entitled to a severance payment that included the monetary value of his benefits, something that is not provided for in the Termination Provision.
[15] There is no issue that if the Plaintiff had pursued an unjust dismissal complaint under the Code, a competent tribunal would not have been precluded from granting him a remedy other than a monetary remedy. There is also no issue that such a tribunal would not have been bound by the terms of the Termination Provision.
[16] As the motion judge found, there was nothing in the Termination Provision that purported to stop the Plaintiff from pursuing an unjust dismissal complaint under the Code. He chose not to do so because of his judgment that such a complaint would not have succeeded in the face of the fact that the Plaintiff’s position was terminated due to a corporate re-organization.
[17] If the Plaintiff is submitting that the Termination Provision violates the Code because of an argument that non-unionized employees in the federal sector cannot be dismissed except for just cause, this submission was addressed and rejected by the Federal Court of Appeal in Atomic Energy of Canada Ltd. v. Wilson, 2015 FCA 17, [2015] F.C.J. No. 44.
[18] The Plaintiff’s argument that the Termination Provision violates the Code because it does not provide for the inclusion of benefits ignores the express wording of the Termination Provision. It provides that if “the severance entitlements are not in conformity with the …severance provisions prescribed by the Canada Labour Code or other similar legislation, the statutory minimums shall apply and be considered reasonable notice and severance”. Thus, under the Termination Provision, if the Code entitles the Plaintiff to a monetary value for his benefits, then he is to receive that compensation.
Did the motion judge err in her award of costs?
[19] The Plaintiff submits that the motion judge erred when she refused to defer the payment of costs until trial. The general rule is that costs ought to be payable following each stage of the proceeding: Allen v. Succession Capital Corp., 2011 ONSC 4513, [2011] O.J. No. 3408. Further, there is no suggestion that the motion judge erred in principle when she exercised her discretion to fix the costs in the amount that she did.
Conclusion
[20] For these reasons, the appeal is dismissed. As the successful party, the Respondent is entitled to its costs of the motion for leave to appeal fixed in the amount of $2500, and to its costs of the appeal itself, fixed in the amount of $7500, for a total costs award of $10,000, all inclusive.
H. SACHS J.
NORDHEIMER J.
D.L. CORBETT J.
Released: 20150306
CITATION: Luney v. Day & Ross Inc., 2015 ONSC 1440
DIVISIONAL COURT FILE NO.: 51/15
DATE: 20150306
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
H. Sachs, Nordheimer & D.L. Corbett JJ.
BETWEEN:
Peter Luney
Appellant/ Plaintiff
– and –
Day & Ross Inc.
Respondent/ Defendant
REASONS FOR JUDGMENT
H. SACHS J.
Released: 20150306