Court of Appeal for Ontario

Citation: Slepenkova v. Ivanov, 2009 ONCA 526

Date: 2009-06-29

Docket: C47622 & C48943

Before: O’Connor A.C.J.O. and Simmons and Lang JJ.A.

Between:

Ilona Slepenkova Plaintiff (Respondent)

and

Vess Ivanov Defendant (Appellant)

And Between:

Yuliya Nikolova Plaintiff (Respondent)

and

Vess Ivanov Defendant (Appellant)

Counsel:

Rahool P. Agarwal, for the appellant

Carita Pereira and Rich Appiah, for the respondents

Heard and released orally: June 25, 2009

On appeal from the judgments of Justice Maureen D. Forestell of the Superior Court of Justice dated July 26, 2007.

Endorsement

[1] These reasons deal with two appeals, argued together, that relied on a common factual background and raised similar issues.

[2] In oral argument, the appellant raised three issues.

[3] We begin with the first two issues; namely, whether the trial judge erred in finding that the contracts were indefinite-term contracts and in concluding that the notice provisions in the contracts did not apply.

[4] Both these arguments can be disposed of based on the trial judge’s factual findings that the terms of the written contracts did not bind the parties as a result of the significant variation between the terms of the contracts and the conduct of the parties. These findings were open to the trial judge on the evidence and the appellant has not demonstrated that the trial judge made a palpable and overriding error in reaching them. Accordingly, we see no error in the trial judge’s conclusions that the respondents were entitled to reasonable notice of termination. We would not give effect to the first two grounds of appeal.

[5] In the third ground of appeal, the appellant argued that the trial judge erred in awarding Wallace damages in an amount equivalent to two months’ pay to each of the respondents. With respect to the respondent, Slepenkova, we see no error. The trial judge made a specific finding that the appellant’s pager message to other agents informing them “that [Slepenkova] failed to adequately perform her duties was unfounded and damaging to her reputation”. In our view, this finding of fact was sufficient to sustain the Wallace award, even in light of the Supreme Court of Canada’s decision in Honda Canada Inc. v. Keays (2008) 2008 SCC 39, S.C.J. No. 40, which was rendered after the trial judge’s decision in this case.

[6] However, with respect to the respondent Nikolova, we do not think that the trial judge’s award can be sustained. The appellant did not send a similar message regarding Nikolova; nor was there any other evidence that she suffered harm, mental distress or actual damage.

[7] The appellant relied on his factums for the remaining grounds of appeal. We see no basis to interfere with the trial judge’s conclusions on any of these other grounds. We note that, in light of the way the appeal was framed, nothing in these reasons should be taken as a comment on the length of the notice period.

[8] In the result, the appeal of the judgment with respect to the respondent Slepenkova is dismissed. The appeal with respect to the respondent Nikolova is allowed in part and the judgment below is varied by reducing the award of damages by the amount of the Wallace award.

[9] In light of the result, costs of the appeal are payable by the appellant to each of the respondents Slepenkova and Nikolova fixed at $12,500, inclusive of disbursements and Goods and Services Tax.

“D. O’Connor A.C.J.O.”

“Janet Simmons J.A.”

“S.E. Lang J.A.”