DATE: 20060209

DOCKET: C42247

COURT OF APPEAL FOR ONTARIO

RE:

FRANK FLYNN (Appellant) – and – SHORCAN BROKERS LIMITED (Respondent)

BEFORE:

ARMSTRONG, LANG and MACFARLAND JJ.A.

COUNSEL:

Arie Gaertner and Bruce Baron

for the appellant

Roy E. Stephenson

for the respondent

HEARD:

February 2, 2006

On appeal from the order of Justice Ellen M. MacDonald of the Superior Court of Justice dated July 12, 2004.

E N D O R S E M E N T

[1] The appellant’s employment was terminated by the respondent. The appellant sued for damages for wrongful dismissal.

[2] The issue before the trial judge was whether the appellant was employed by the respondent under an agreement of indefinite hiring or for a fixed term pursuant to the terms of three written contracts.

[3] The trial judge concluded that the employee was employed under a fixed term contract and was terminated in accordance with its terms.

[4] In this court the appellant argues that the trial judge erred in the following respects:

• She failed to take into account the reasonable expectation of the parties, that would have led her to conclude that the employment relationship was of indefinite duration;

• She failed to appreciate that the language of the three written employment contracts signed in three different years was not sufficiently unequivocal and explicit;

• She failed to appreciate that the written contracts were no more than a device designed to disguise a contract of indefinite duration;

• She failed to consider that the underlying reality of the relationship between the appellant and respondent was such that the only conclusion to be drawn was that the employment relationship was for an indefinite duration;

• She failed to consider the inherent power imbalance that existed between the appellant and the respondent in their respective capacities as employee and employer; and

• She failed to conclude that if the appellant was employed at the end of November 2002 for a fixed term, that the contract was converted to one of indefinite duration in December 2002 during the period that the appellant remained employed while negotiating a consulting agreement.

[5] We are not persuaded by the above submissions. In our view the evidence is clear that the appellant fully understood that his employment was speculative in nature at the time he was hired and could be terminated on a moment’s notice. Further, the language of the written contracts in issue is clear and unequivocal. In our view, the contracts in question did not constitute a device designed to disguise a contract of indefinite hiring. The underlying relationship fully supports the conclusion of the trial judge that the term of the agreements was for a fixed term. As to the alleged power imbalance, there is no evidence to support the submission proffered by counsel for the appellant. Finally, we do not agree that in December 2002 the contract was turned into a contract of indefinite duration.

[6] The appeal is therefore dismissed. Costs to the respondent fixed in the amount of $10,000.00 including disbursements and G.S.T.