DATE: 20031104

DOCKET: C38538

COURT OF APPEAL FOR ONTARIO

LASKIN, GOUDGE AND FELDMAN JJ.A.

B E T W E E N:

RICHARD E. MOORE

Martin Black

for the appellant

Plaintiff

(Respondent)

• and -

THOMAS FULLER CONSTRUCTION CO. (1958) LIMITED

Marc C. Doucet

for the respondent

Defendant

(Appellant)

Heard: September 30, 2003

On appeal from the judgment of Justice Douglas Rutherford of the Superior Court of Justice dated June 10, 2002.

BY THE COURT:

[1] Richard Moore left the job of President of the Thomas Fuller Construction Co. (1958) Limited effective July 31, 1999. He successfully sued for his pro rata share of his 1999 entitlement under the company’s profit-sharing plan, namely 7/12 of 10 percent of its 1999 net profits.

[2] His employer appeals, arguing that where the profit-sharing bonus is not calculated until year end, there can be no implied provision that an employee who resigns mid-year gets a pro rata share.

[3] In our view, the disposition of this appeal turns on the determination of the precise terms of Mr. Moore’s employment contract.

[4] The trial judge found that the essential terms of this contract were not reduced to writing.

[5] He also found one of those essential terms to be that the profit-sharing plan was an integral part of Mr. Moore’s compensation package. That plan was completely non-discretionary. It provided each employee with a fixed percentage of the company’s net profits for the year regardless of the employee’s performance or contribution to those profits. Mr. Moore’s share was 10 percent annually.

[6] Finally, the trial judge found that the company did not tell Mr. Moore that he would get no bonus if he left mid-year and that there was no practice to that effect sufficient to make that consequence clear to Mr. Moore.

[7] The appellant challenges only the last finding of fact, arguing that the practice was clear and Mr. Moore should have understood from it that if he left in July he would get no bonus for that year.

[8] In our view, the trial judge was amply justified in making the finding he did. There was evidence that previous cases were equivocal and that in any event Mr. Moore was unaware of some of them. This finding cannot be said to reflect the palpable and overriding error necessary for us to intervene.

[9] The trial judge correctly found that Mr. Moore’s contract of employment provided that his compensation for the year included as an integral component a guarantee of 10 percent of the company’s net profits for that year. In construing the contract to give Mr. Moore 7/12 of that for working the first seven months, the trial judge was simply giving business efficacy to the compensation provision. Mr. Moore was as entitled to this part of his compensation package as he was to 7/12 of his annual salary for working those seven months. The company could have negotiated a different contract with Mr. Moore that, for example, made the payment of a bonus discretionary, or conditioned the bonus on service for a full year. As the company did not do so, we are of the view that the trial judge reached the correct result in the circumstances of this case.

[10] We would dismiss the appeal with costs fixed on a partial indemnity basis at $7,500 inclusive of disbursements and G.S.T.

Released: November 4, 2003 “STG”

“John Laskin J.A.”

“S.T. Goudge J.A.”

“K. Feldman J.A.”