DATE: 20030328

DOCKET: C37113

COURT OF APPEAL FOR ONTARIO

RE: RON AQWA (Plaintiff/Respondent) v. CENTENNIAL HOME RENOVATIONS LTD. c.o.b. as CENTENNIAL WINDOWS (Defendant/Appellant)

BEFORE: DOHERTY, ABELLA and LASKIN JJ.A.

COUNSEL: John W. Makins and Bradley Wallace

for the appellant

Joseph N. Tascona

for the respondent

HEARD: March 25, 2003

ORALLY

RELEASED: March 25, 2003

On appeal from the judgment of Justice J.E. Sheppard of the Superior Court of Justice dated September 12, 2001.

E N D O R S E M E N T

[1] The parties entered into an agreement whereby the respondent agreed to work as a commissioned salesperson for the appellant. That agreement included the following:

It is agreed that either party may terminate this agreement at any time without notice or penalty. …

[2] Despite this term, the trial judge held that the respondent was entitled to reasonable notice upon termination by the appellant without cause. He held that because of the unequal bargaining positions of the appellant and the respondent at the time the agreement was made, and the lack of what the trial judge described as “mutuality” in the effect of the termination provision in the agreement, the court should refuse to enforce the agreement the parties had made, and should read a term into the agreement requiring reasonable notice upon termination.

[3] We accept that it will be appropriate for a court to decline to enforce a contract or a provision in a contract where it would be unconscionable to enforce that term or that contract. We see no basis in the evidence, however, for a finding of unconscionability.

[4] The trial judge found as a fact that the respondent understood the provisions of the contract in their entirety. The most that can be said is that the respondent was presented with a standard form agreement which he could accept or reject as he saw fit. There was no evidence of pressure or duress or the other usual indicia of unconscionability. Nor was the respondent in a vulnerable position when presented with the agreement. He had been employed in the field for a number of years and saw employment with the appellant as an opportunity to improve his financial situation. Finally, when the terms of the contract are viewed in their entirety, we see nothing unfair in those terms. Several terms operated to the benefit of the respondent. For example, he could pursue other work as long as it did not conflict directly with the products sold by the appellant, he could work at his own pace and on his own hours, and he could sever his connection with the appellant at any time he saw fit without penalty.

[5] In summary, we see no justification for rewriting the agreement entered into by the parties.

[6] The appeal is allowed and the trial judgment is set aside. It is agreed that even if the respondent was not entitled to notice, that he was owed $6,846.50 by the appellant. The respondent should have judgment in that amount with prejudgment interest at 5 per cent.

[7] The costs of the trial should be assessed. The parties agree that the respondent should have his costs on a partial indemnity basis up to November 7, 2000, the date of the offer made by the appellant, and that the appellant should have its costs on a partial indemnity basis after that date.

[8] The appellant is entitled to its costs on the appeal. Those costs should also be assessed.

“Doherty J.A.” “R.S. Abella J.A.”

“John Laskin J.A.”