CITATION: Shete, Lada, and Chung v. Bombardier Inc., 2019 ONSC 4083
DIVISIONAL COURT FILE NO.: 580/18, 581/18, and 582/18 DATE: 20190703
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
M.G.J. QUIGLEY, CONWAY, and FAVREAU JJ.
BETWEEN:
COURT FILE: 580/18
SHASHIKANT SHETE
W. Bruce Drake, for the Plaintiff/Respondent
Plaintiff/Respondent
– and –
BOMBARDIER INC.
Shivani Chopra, for the Defendant/Appellant
Defendant/Appellant
AND BETWEEN:
COURT FILE: 581/18
EDWARD JOHN LADA
W. Bruce Drake, for the Plaintiff/Respondent
Plaintiff/Respondent
– and –
BOMBARDIER INC.
Defendant/Appellant
Shivani Chopra, for the Defendant/Appellant
AND BETWEEN:
COURT FILE: 582/18
ALFRED CHUNG
W. Bruce Drake, for the Plaintiff/Respondent
Plaintiff/Respondent
– and –
BOMBARDIER INC.
Shivani Chopra, for the Defendant/Appellant
Defendant/Appellant
HEARD at Toronto: July 3, 2019
BY THE COURT (Orally)
Introduction
[1] The Appellant, Bombardier Inc. (“Bombardier”) appeals, with leave, from the orders of Dow J. dated August 28, 2018, dismissing Bombardier’s motions for summary judgment in three wrongful dismissal actions (the “Actions”).
Factual Overview
[2] The Respondents (the “Employees”) were long time employees of Bombardier. By letter dated September 30, 2015, Bombardier notified the Employees that their employment was being terminated effective November 25, 2015. In that letter, Bombardier offered the Employees a termination package in exchange for a release (the “Initial Offer”). The Employees, through their counsel, rejected the Initial Offer and proposed new terms to resolve the matter.
[3] On December 18, 2015, Ms. Picard, Director of Legal Services of Bombardier, sent an email to the Employees’ counsel with a new offer. She stated that Bombardier was prepared to offer 13 to 16 months of base salary (depending on the Employee), minus ESA notice and severance already paid. The offer was not subject to mitigation. She stated that allocation to legal fees could be made upon presentation of an invoice.
[4] On April 4, 2016, counsel for the Employees wrote to Ms. Picard that “against my advice, my 3 clients are prepared to accept your offers of December 18, 2016 [sic] provided that Bombardier make an additional payment of $2,500 each towards their legal costs.”
[5] On April 11, 2016, Ms. Picard emailed the Employees’ counsel enclosing “the revised severance offers”. The attached documents were in the same form as the Initial Offer, except that they provided for the termination pay that the Employees had agreed to accept through their counsel on April 4, 2016. The documents also included a term for reimbursement of legal fees up to $2,500 on proof of payment. The revised offers enclosed a transaction and release document and stated that “Your signature will confirm your acceptance of the terms and conditions for the termination of your employment.”
[6] On July 19, 2016, each of the Employees filed a Statement of Claim against Bombardier seeking damages for wrongful dismissal. Two days later, counsel for the Employees wrote to Ms. Picard, stating that his clients had not appreciated that the amounts in the April 11, 2016 letters were subject to a deduction for termination pay and severance pay that they had received. He advised that after much back and forth discussion, he had received instructions to reject the offers and proceed to litigation.
[7] Bombardier filed its Statement of Defence in each Action and subsequently served a notice of motion for summary judgment.
Decision of the Motions Judge
[8] The motions judge heard the summary judgment motions on August 28, 2018. The only evidence before him was the affidavit of Ms. Picard dated March 13, 2018. The Employees filed no evidence on the motions.
[9] The motions judge dismissed the motions. He found that Bombardier’s April 11, 2016 correspondence did not constitute an acceptance of the Employees’ April 4, 2016 offer. Rather, he found that Bombardier’s response was a new offer that impliedly rejected the Employees’ offer. His conclusion was based on the language used in Bombardier’s April 11, 2016 correspondence, namely, (i) Bombardier’s email referred to “revised severance offers”; (ii) the language in the attached letter said that Bombardier was “prepared to offer you the following terms and conditions”; (iii) the letter stated that Bombardier would pay $2500 in legal fees “upon presentation of a document demonstrating that such legal fees were incurred”; and (iv) the letter required the Employee’s signature to confirm acceptance of the terms and conditions.
[10] The motions judge referred to the case of Ferron v. Avotus Corp., 2005 29655 (ON SC), [2005] O.J. No. 3511 (Ont. S.C.), for the proposition that a settlement will be enforced where the parties agreed on all essential terms. However, he concluded that “such did not occur here given the form of the response by” Bombardier.
Standard of Review
[11] The parties agree that questions of fact are reviewable on a standard of palpable and overriding error. Questions of law are reviewable on a standard of correctness. Where an error of law is found, the appellate court is free to replace the opinion of the trial judge with its own: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para 8. An error that can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle can be characterized as an error of law, subject to a standard of correctness: Housen, at para. 36.
Analysis
[12] The motions judge recognized that according to the case law, settlements are enforced so long as the parties have agreed on the “essential terms”. In Ferron, Hoy J. (as she then was), stated at para. 23 that “for there to be a binding settlement agreement, the essential provisions must have been agreed upon and there must be a mutual intention to create a legally binding relationship”.
[13] The motions judge failed to apply these principles to the cases before him. He did not analyze what the essential terms were, whether the parties had agreed on those terms and where any difference between them lay. Instead, he looked only at the formal language used in Ms. Picard’s response of April 11, 2016 and came to his conclusion without considering the substantive terms or the parties’ intention. Since he did not apply the principles on whether a settlement had been reached and thereby erred in law, we are free to substitute our decision for that of the motions judge.
[14] In our view, it is clear from the sequence of events that the parties had reached a settlement. Ms. Picard offered a termination package on December 18, 2015. On April 4, 2016, the Employees’ counsel expressly stated that his clients would accept the terms of the December 18th offer, provided Bombardier agreed to pay an additional $2500 for legal fees. At the hearing, Mr. Drake fairly conceded that his April 4, 2016 email could be construed as an offer.
[15] Ms. Picard responded on April 11, 2016 and agreed to the $2500 in legal fees. That was the final term that the Employees had proposed and it was one that Bombardier accepted. Nothing in Ms. Picard’s response changed any of the other terms that the Employees had previously agreed to accept or proposed any new terms for the Employees to consider. Mr. Drake conceded that there were no remaining substantive issues between the parties at that point. We disagree with the motions judge’s characterization of Ms. Picard’s April 11, 2016 response as a new offer. In our view, it was properly characterized as Bombardier’s acceptance of the offer to which the Employees had previously agreed. The formal language used in the April 11, 2016 correspondence did not detract from the meeting of the minds that had occurred by that point.
[16] By April 11, 2016, the parties had agreed on all of the essential terms of the settlement. They intended to resolve matters between them. The fact that the Employees may have subsequently re-considered their position does not undermine the existence of an enforceable settlement.
[17] The appeals are allowed. There was an enforceable settlement between the parties on the terms of the Employees’ termination from Bombardier. In light of that settlement, there is no genuine issue requiring a trial on their wrongful dismissal claims and Bombardier’s motions for summary judgment are granted. The Actions are dismissed.
QUIGLEY, J.:
[18] I have endorsed the Appeal Book and Compendium of the Appellant as follows: “Upon hearing submissions of counsel and considering the materials filed, the Court allows the appeal, reverses the decision of the motions judge and allows Bombardier its summary judgment motion and dismisses the Actions. Reasons were delivered by the Court orally and will be provided to the parties once transcribed. This endorsement applies to each of the Court Files 581/18, 580/18, and 582/18. Costs awarded in the amount of $10,000 for the summary judgment motion and this appeal, all inclusive to be paid 1/3 by each of these respondents.”
___________________________ M.G.J. QUIGLEY J.
CONWAY J.
FAVREAU J.
Date of Oral Reasons for Judgment: July 3, 2019
Date of Release: July 4, 2019
CITATION: Shete, Lada, and Chung v. Bombardier Inc., 2019 ONSC 4083
DIVISIONAL COURT FILE NO.: 580/18, 581/18, and 582/18 DATE: 20190703
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
M.G.J. QUIGLEY, CONWAY, and FAVREAU JJ.
BETWEEN:
COURT FILE: 580/18
SHASHIKANT SHETE
Plaintiff/Respondent
– and –
BOMBARDIER INC.
Defendant/Appellant
AND BETWEEN:
COURT FILE: 581/18
EDWARD JOHN LADA
Plaintiff/Respondent
– and –
BOMBARDIER INC.
Defendant/Appellant
AND BETWEEN:
COURT FILE: 582/18
ALFRED CHUNG
Plaintiff/Respondent
– and –
BOMBARDIER INC.
Defendant/Appellant
ORAL REASONS FOR JUDGMENT
BY THE COURT
Date of Oral Reasons for Judgment: July 3, 2019
Date of Release: July 4, 2019