CITATION: Van Wyngaarden v. Thumper Massager Inc., 2018 ONSC 6622
DIVISIONAL COURT FILE NO.: 224/18
DATE: 20181107
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
CONWAY, MATHESON and SHEARD JJ.
BETWEEN:
GERALD VAN WYNGAARDEN
Kevin W. Fisher, for the Plaintiff/Appellant
Plaintiff/Appellant
– and –
THUMPER MASSAGER INC.
David A.S. Mills, for the Defendant/Respondent
Defendant/Respondent
HEARD at Toronto: September 26, 2018
SHEARD J.
[1] The Appellant employee appeals from the order of Faieta J. dated June 27, 2017, granting summary judgment to the Respondent employer and dismissing the Appellant’s action against it.
[2] After less than six months’ employment, the Appellant was terminated without cause. He received one week’s pay as required by the Employment Standards Act, 2000, S.O. 2000, c.41 (“ESA”) and sued for wrongful dismissal, claiming damages of $60,000.00.
[3] The Appellant claimed that the Respondent induced him to leave a secure job and then, after taking advantage of the Appellant’s special knowledge and skills, terminated his employment two days shy of six months. The Appellant claimed that because of this inducement and bad faith conduct, he was entitled to a notice period that took into account his five years’ service with his previous employer. The Appellant disputed that the probationary term in the document that he signed actually formed part of his employment contract.
[4] The Respondent disputed that it had induced the Appellant to leave his previous employment. It further submitted that the Appellant’s employment contract clearly stated that the Appellant would be on probation for the first six months. Until then, if the Respondent determined that the Appellant was unsuitable for the position, it could terminate his employment without cause and without notice.
Background
[5] The Appellant was a 59 year old, six-year employee of Zebra Technologies when he received an email from the Respondent about possible employment. The Respondent told the Appellant that it was considering hiring a full-time in-house designer for a new product line that would likely take upwards of three years to launch. Negotiations proceeded via email exchanges, culminating in an email from the Respondent of February 17, 2015 attaching a one-page offer of employment (the “Offer”).
[6] The Offer included terms that had been discussed in prior emails, together with a final salary figure. The Offer also included a probation clause, which had not been discussed previously, nor specifically mentioned in the February 17, 2015 email. The probation clause reads:
There is a 6-month probation period associated with this role. During this time we will review your performance and development. This work offer will automatically become permanent upon successful completion of your probation period. Your professional performance and compensation package will be reviewed yearly, every July.
[7] The Appellant signed back the one page Offer and accepted the Offer. He left Zebra, and began his employment with the Respondent on April 7, 2015. The Appellant’s employment with the Respondent was terminated on October 5, 2015.
Motion for Summary Judgment
[8] The Appellant’s action was brought under Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. His motion for summary judgment was brought under Rule 20. The evidence on the motion consisted of two affidavits sworn by the Appellant, an affidavit sworn by the Respondent’s general manager Paul Sajgalik (“Sajgalik”), and the Respondent’s affidavit of documents with attached exhibits.
[9] As noted by the motion judge, the Appellant and the Respondent had completely different views on the Appellant’s work performance. The Appellant said that Sajgalik told him he was impressed by the Appellant’s work, that the Appellant was not given a performance review, and that he was never told that he was underperforming. He said that his termination came as a “complete shock.”
[10] Sajgalik stated that the problems with the Appellant’s work became apparent almost from the outset. He stated that he met with the Appellant in June 2015 to conduct a performance review, that he told the Appellant that he was unsatisfied with the quality of his work, and that he had to personally assume some of the Appellant’s job responsibilities and promote another employee to assist the Appellant. Despite these efforts, the Appellant repeatedly failed to meet agreed-upon objectives.
[11] The motion judge concluded that although the parties gave differing accounts of the Appellant’s hiring and performance, he was able to make a fair and just determination of the merits of the motion for summary judgment. After a detailed review of the emails that set out the pre-contract communications, he found that the Appellant was bound by the probation clause set out in the one page Offer as signed back by him. Further, following Nagribianko v. Select Wine Merchants Ltd., 2016 ONSC 490 (Div. Ct.), aff’d 2017 ONCA 540, the motion judge held that the probationary period was inconsistent with any inducement or promise of long-term employment.
[12] The motion judge next considered whether the Appellant was entitled to reasonable notice of termination of his probationary employment. He followed Walford v. Stone & Webster Canada LP, 2006 37409 (ON SCDC) in concluding that, unless the dismissal was in bad faith, an employer is entitled to dismiss an employee during the probationary period without cause and without notice.
[13] The motion judge found that apart from the Appellant’s allegations, there was little evidence of any ulterior motive for his termination. He therefore concluded that the Appellant had failed to establish bad faith on the part of the Respondent. He found that the Respondent had met its obligations, as set out in Nagribianko, of providing the Appellant a fair opportunity to demonstrate his suitability for employment and had considered matters relevant to that suitability when deciding to terminate the Appellant’s employment.
Issues, Jurisdiction and Standard of Review
[14] The Appellant appeals the motion judge’s order dismissing his action. His primary grounds of appeal are that the motion judge erred in determining that he was subject to a probationary period and that the Respondent did not induce him to leave his prior employment. The Appellant further submits that the motion judge erred in determining that the Respondent had met its obligations when terminating the Appellant within the probationary period.
[15] This appeal is governed by section 19 of the Courts of Justice Act, R.S.O. 1990, c. C-43, which provides that an appeal lies to the Divisional Court from the final order of a judge dismissing a claim for an amount not exceeding $50,000. On pure questions of law, the standard of review is correctness. On findings of fact or of mixed fact and law, the standard of review is palpable and overriding error unless there is an extricable question of law, which is reviewed on the standard of correctness (Housen v. Nikolaisen, 2002 SCC 33, 2002 S.C.C. 33).
Analysis
Terms of Employment
[16] The main issue below and before us was whether the Appellant was subject to the probation clause contained in the Offer. The Appellant’s evidence was that the terms of his employment were set out in the emails leading up to the Offer and that he expected to be employed for the three-year duration of the project. The Appellant stated that the probation clause in the Offer had not been drawn to his attention and that he signed the Offer believing it to be a formality. The Appellant claimed that had he known that the Respondent was offering only probationary employment he would never have left his secure and stable employment with Zebra.
[17] The motion judge found that the Appellant was bound by the probation clause in the Offer that was signed back by him. He relied on the fact that the Offer was one page long, that the probation clause was a stand-alone paragraph in the middle of the page, and that it stated in plain language that the employment was probationary for six months. He held that a person who signs a contract is taken to have read the contract that he or she signs and to have agreed to its terms.
[18] I see no error in law or palpable and overriding error of fact in the motion judge’s conclusion, based on the record before him, that the Offer set out the terms of the employment contract between the parties and that the Appellant was bound by the six-month probation clause contained in the contract.
Inducement
[19] Once the motion judge concluded that the Appellant was subject to a probationary period, he correctly determined that this was inconsistent with a finding that the Appellant had been induced to leave his employment at Zebra.
[20] He further found that the emails that preceded the Offer did not support the Appellant’s claim of inducement, as they contained no promises that the Appellant would be employed for a period of three years, nor any special incentives to the Appellant to leave his existing job. To the contrary, the Appellant accepted a lower salary when he accepted employment with the Respondent.
[21] I see no reviewable error in the motion judge’s finding that the Respondent had not induced the Appellant to leave his prior employment.
Conduct of the Respondent
[22] The Appellant argued before the motion judge that he had been enticed away in order that the Respondent could take the benefit of his expertise, and then fire him. The motion judge found that the Appellant had not proven this ulterior motive for terminating his employment.
[23] On the issue of whether the Respondent gave the Appellant a fair opportunity to demonstrate his suitability for employment, there was no issue that the Respondent had given the Appellant almost six months to demonstrate his suitability. There were disputed facts about the Appellant’s performance and whether the Respondent communicated its dissatisfaction to the Appellant. While the reasons of the motion judge on this issue are very brief, reading his reasons as a whole, it is apparent that he applied the correct legal test and was satisfied that the Respondent had provided the Appellant with a fair opportunity during the six-month probationary period. The Appellant has not established that the motion judge made a reviewable error in not ordering a mini-trial or in concluding that a trial was not required in order to determine this issue in this case.
[24] In my view, it was open for the motion judge on the record to find that the Appellant had failed to establish that the Respondent had acted in bad faith and that the Respondent had met its obligations to this probationary employee.
Disposition
[25] For the reasons set out above, the appeal is dismissed.
[26] As agreed by counsel, costs of this appeal are fixed in the amount of $7,000.00, all inclusive, to be paid by the Appellant to the Respondent.
___________________________ SHEARD J.
I agree
CONWAY J.
I agree
MATHESON J.
Date of Release: November 7, 2018
CITATION: Van Wyngaarden v. Thumper Massager Inc., 2018 ONSC 6622
DIVISIONAL COURT FILE NO.: 224/18
DATE: 20181107
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CONWAY, MATHESON and SHEARD JJ.
BETWEEN:
GERALD VAN WYNGAARDEN
Plaintiff/Appellant
– and –
THUMPER MASSAGER INC.
Defendant/Respondent
REASONS FOR JUDGMENT
SHEARD J.
Date of Release: November 7, 2018