Court of Appeal for Ontario

Citation: Morgan v. John Bear Pontiac Buick Cadillac Ltd., 2012 ONCA 88

Date: 20120208

Docket: C53064

Rosenberg, Juriansz, Rouleau JJ.A.

Between

David Morgan

Appellant (Plaintiff)

and

John Bear Pontiac Buick Cadillac Ltd.

Respondent (Defendant)

Counsel:

M. Munro, for the appellant (plaintiff)

H. Korosis and P. Nicholson, for the respondent (defendant)

Heard: February 2, 2012

On appeal from the judgment of Justice D.S. Crane of the Superior Court of Justice, dated November 15, 2010.

Endorsement

[1] The appellant appeals the trial judge’s dismissal of his action for an accounting of wages owing to him by his former employer. He was employed as a salesperson by the respondent car dealership from December 2002 until August 2006. After leaving that employment, he commenced an action claiming the commissions he was paid were not calculated in accordance with the respondent’s annual pay plans.

[2] The trial judge dismissed his claim finding that “the parties intended that the Pay Plans were to be in accordance with dealership industry practice” and the appellant’s commissions were calculated in accordance with the pay plans as clarified by industry practice. In arriving at that conclusion, the trial judge rejected the appellant’s testimony that the employer would not provide the particulars of how his commissions were calculated. To the contrary, the trial judge found the appellant “knew and accepted that his employment was in accordance with the business practices of the car sales industry”.

[3] These findings effectively dispose of the appeal. The pay plans, which were provided and explained annually to employees, contained general terms subject to interpretation. For example, the pay plans for the years 2004 through 2006 referred to “sundry costs”. They defined the “gross profit” to be used in the calculation of commissions as “The difference between the selling price and the book value, including any sundry cost, plus $600.00”.

[4] Cleary, it was open to the judge to find that industry practice could be used to clarify the interpretation and application of the pay plans.

[5] The appellant, pointing to evidence of varying practices by different car dealerships, submitted that the evidence did not establish the existence of an industry practice. That submission seemed premised on an industry practice being a specific fixed and uniform practice throughout the industry. The premise is incorrect. It was unnecessary that the evidence prove that all car dealerships calculated costs in exactly the same way. It was sufficient that the evidence establish that it was the practice in the industry to include certain kinds of costs in the calculations of commissions. The trial judge’s finding was one of fact. There was evidence to support it.

[6] The trial judge’s use of industry practice to interpret the pay plans must be considered along with his adverse findings of the appellant’s credibility. He found that the appellant “over-stated that he did not know, while employed by the defendant, what such terms as dealer cost meant, the reason for the "less $600" in the Pay Plan contracts, or the gross profit on the commission summaries provided to him, or what sundry costs included”. The trial judge also found the appellant “relied on the generally accepted dealership practices”. While counsel for the appellant contested these credibility findings, the standard for interfering with credibility determination on appeal is a high one. The appellant did not meet it.

[7] We see no basis for interfering with the trial judge’s conclusion that the appellant failed to establish there were unpaid commissions that the respondent should be required to account for.

[8] Finally, the appellant asked for an order for a written statement of how his wages were calculated under s. 12 of the Employment Standards Act, 2000, S.O. 2000, c. 41. This was not a matter pressed at trial and, in any event, it is unclear whether any remedy for violation of s. 12 would be any different than the accounting that the appellant unsuccessfully sought at trial..

[9] The appeal is dismissed with costs to the respondent fixed at $12,500. Including disbursements and applicable taxes.

“M. Rosenberg J.A.”

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”