COURT OF APPEAL FOR ONTARIO

DATE: 20001018

DOCKET: C31330

RE: ESMOND ANTHONY VALLIQUETTE (Plaintiff/Respondent) v. BELNET COMMUNICATIONS INC. (Defendant/Appellant)

BEFORE: OSBORNE A.C.J.O., DOHERTY and GOUDGE JJ.A.

COUNSEL: Thomas F. Wallis

for the appellant

Tracy P. Lyle

for the respondent

HEARD: October 16, 2000

On appeal from the judgment of Mr. Justice Robert J. Cusson dated December 9, 1998.

E N D O R S E M E N T

[1] This action turned on the meaning to be given to cryptic terms set out in an employment agreement signed by the parties on June 3, 1996. When the parties signed the agreement, neither anticipated that the respondent would leave the employ of the appellant before the end of 1996 and both parties anticipated that a formal more detailed employment agreement would be drawn up. Unfortunately for all concerned, the appellant left his employment in July 1996 and a more detailed agreement was not entered into.

[2] The respondent’s entitlement to certain commissions had to be determined by reference to the June 3^rd^ agreement and the circumstances surrounding that agreement and those commissions.

[1] The trial judge concluded that the term of the June 3^rd^ agreement providing for payments of commissions on certain contracts arranged with Bell, called for payment of commissions on those contracts which expired at the end of 1996 regardless of whether the respondent remained in the employ of the appellant to the end of 1996. In effect, the trial judge found that the commissions were earned as of the date the contracts were secured even though performance of those contracts was ongoing.

[2] In reaching that conclusion, the trial judge considered the central role played by the respondent in obtaining the contracts with Bell, the nature of those contracts, the benefits which flowed to the appellant from those contracts, and the fact that the value of the contracts and, therefore, the actual commissions made could not be determined until the end of the contracts.

[3] The trial judge also observed that the terms of the employment agreement provided for both salary and commission. In his view, the former related to the respondent’s efforts to service the Bell contracts and was payable only while the respondent was employed by the appellant, but the latter was earned once the contracts were secured, even though the amount of commission owed could not be ascertained until the termination of the contracts.

[4] We agree with the trial judge’s analysis. The commissions were earned once the respondent had secured the contracts with Bell. Unlike his salary, those commissions were not tied to his ongoing employment with the appellant. The appeal is dismissed with costs.

“C.A. Osborne A.C.J.O.”

“Doherty J.A.”

“S.T. Goudge J.A.”