CITATION: Mlotek v. York-Med Systems Inc., 2016 ONSC 2169
DIVISIONAL COURT FILE NO.: 512/15 DATE: 20160329
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEDERMAN, THORBURN AND EDWARDS JJ.
BETWEEN:
HELEN MLOTEK Plaintiff (Appellant)
– and –
YORK-MED SYSTEMS INC. (c.o.b. as YMS) Defendant (Respondent)
Brandin O’Connor, for the Plaintiff (Appellant) Micheal Simaan and Jaclyn C. McNamara, for the Defendant (Respondent)
HEARD at Toronto: March 29, 2016
LEDERMAN J. (ORALLY)
[1] This is an appeal from the order of Wright J. (the Motions Judge) dated September 4, 2015. Pursuant to the appellant’s motion for summary judgment, the Motions Judge dismissed her claim for damages for wrongful dismissal and discrimination on the basis of age but awarded her 23 weeks’ notice (which amounts to $8,134.62). The Motions Judge also awarded the respondent $15,000 in costs. The appellant on this appeal is challenging the Motions Judge’s reasons on the merits and the costs award.
Background
[2] The appellant, Helen Mlotek, was an employee of the respondent, York-Med Systems Inc., for 16 years. She was 72 years old at the time of her termination.
[3] The appellant had signed two employment contracts with the respondent: one in 1998 (“the 1998 Contract”) and one in 2011 (“the 2011 Contract”).
[4] The 1998 Contract included a termination clause stating as follows:
If your employment is terminated for any reason other than “just cause” in law then you will receive one weeks’ notice of termination, or pay in lieu, for each complete 12 month period of employment as part of whatever entitlement you have under any applicable statute.
[5] The 2011 Contract contains a rescission clause and a revised termination clause.
[6] The respondent provided the appellant with a Termination Letter advising that she would receive 16 weeks’ pay paid out over the course of a 12 month period plus an additional seven weeks’ pay paid out over a further three month period in exchange for signing a full and final release.
[7] The appellant rejected this offer, and the respondent paid her the minimum statutory entitlement of eight weeks’ notice as per the Employment Standards Act, 2000, S.O. 2000, c. 41. Had the appellant signed the release, she would have received 23 weeks’ notice.
[8] The appellant brought a motion for summary judgment and claimed that she was wrongfully dismissed and discriminated against on the basis of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19.
[9] The Motions Judge determined that the appellant’s termination had nothing to do with her age but rather had to do with her position becoming redundant. This line of reasoning is not being challenged in the present appeal.
[10] Both parties took the position that the 2011 Contract was invalid due to a lack of consideration, but the appellant argued that the rescission clause in the 2011 Contract was nevertheless operative and terminated the 1998 Contract.
[11] In the alternative, the appellant argued that the termination clause in the 1998 Contract was unenforceable due to the ambiguity of the term “entitlement” being in the singular rather than the plural form.
Findings of the Motions Judge
[12] The Motions Judge decided that:
(a) the rescission clause in the 2011 Contract did not survive;
(b) that the 1998 Contract was valid and enforceable;
(c) that the termination clause in the 1998 Contract applied; and
(d) that the appellant was entitled to 23 weeks’ notice pursuant to that clause.
[13] The Motions Judge also concluded that the respondent was the successful party on the motion and awarded it costs of $15,000.
Standard of Review
[14] The standard of review on an appeal from a Judge’s order on a question of law is correctness. Findings of fact and findings of mixed fact and law cannot be reversed unless there is palpable and overriding error.
[15] Contractual interpretation of contracts involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix. Questions of interpretation of contracts are determined on the standard of reasonableness. (See Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53).
Discussion
[16] The parties agreed before the Motions Judge that the 2011 Contract was void for lack of consideration.
[17] The appellant argued that even though the 2011 Contract was void, the parties, and in particular the appellant, relied on it and the rescission of the 1998 Contract. The appellant argued that since the 2011 Contract was instigated by the employer for its benefit, it should be estopped from seeking the enforcement of the 1998 Contract.
[18] The rescission of the 1998 Contract was predicated on the 2011 Contract being a valid contract. It was not.
[19] The parties had governed themselves by the 1998 Contract and there is no evidence of any detrimental reliance or prejudice to the appellant because of the entering into the 2011 Contract which turned out to be void.
[20] Accordingly, the Motions Judge was correct in concluding that the 1998 Contract continued in place and governed the relationship between the parties.
[21] The Motions Judge found no ambiguity in the termination clause in the 1998 Contract. She said at para. 35:
The word entitlement cannot be read in isolation. When read in the context of the clause as a whole it is obvious that the word entitlement was meant to be interpreted in the plural sense. I find the wording to be simple and straightforward, with no hint of ambiguity.
[22] We agree with the Motions Judge’s interpretation and find it to be reasonable.
[23] The word “part” in the termination clause clearly indicates that the employee will receive more than the one weeks’ notice or pay in lieu of notice for each 12 month period.
[24] The remaining portion refers to “whatever entitlement you have under any applicable statute.” That statute is the Employment Standards Act and it entitles an employee to benefits.
[25] Therefore, we agree with the Motions Judge that the clause is clear and unambiguous.
[26] For these reasons the appeal is dismissed.
Costs
[27] Leave is required from a discretionary award of costs and leave should be only granted sparingly where the motion judge erred in the exercise of discretion.
[28] In the instant case, the Motions Judge, in her reasons simply stated that the defendant was the successful party and was entitled to costs. It is clear from her reasons that success was somewhat divided in that the appellant was awarded her damages in the amount of 23 weeks’ pay in lieu of notice, even though that fell considerably short of what she was seeking, and her claim for age discrimination was dismissed.
[29] Her claim ultimately fell within the monetary limit of the Small Claims Court. The Motions Judge failed to give reasons why the defendant was the successful party and therefore entitled to costs.
[30] The Motions Judge failed to articulate the reasons for her cost award as to entitlement and quantum.
[31] In these circumstances, we would grant leave to appeal the cost order.
[32] In our determination of costs, we have considered the factors under Rule 57:
(i) there was mixed success; in fact the plaintiff lost on the age discrimination claim;
(ii) there was some recovery by the plaintiff; although significantly lower than she claimed;
(iii) the plaintiff was unsuccessful in her argument that the 1998 agreement was invalid; and
(iv) the defendant did not meet or exceed any offers made during the litigation.
[33] Considering all of these factors and Rule 57.05(1), there should be no order as to costs of the summary judgment motion.
[34] I have endorsed the back of the Appeal Book, “For oral reasons delivered, the appeal is dismissed. Leave to appeal costs is granted and the order as to costs on the motion is varied to “no costs”. Given the divided success on these appeals, there will be no costs of the appeals.”
___________________________ LEDERMAN J.
THORBURN J.
EDWARDS J.
Date of Reasons for Judgment: March 29, 2016
Date of Release: April 4, 2016
CITATION: Mlotek v. York-Med Systems Inc., 2016 ONSC 2169
DIVISIONAL COURT FILE NO.: 512/15 DATE: 20160329
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEDERMAN, THORBURN AND EDWARDS JJ.
BETWEEN:
HELEN MLOTEK Plaintiff (Appellant)
– and –
YORK-MED SYSTEMS INC. (c.o.b. as YMS) Defendant (Respondent)
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: March 29, 2016
Date of Release: April 4, 2016