COURT OF APPEAL FOR ONTARIO

CITATION: Cosentino v. Sherwood Dash Inc., 2014 ONCA 843

DATE: 20141126

DOCKET: C58797

Simmons, MacFarland and Benotto JJ.A.

BETWEEN

Piero Cosentino

Appellant/Plaintiff

and

Sherwood Dash Inc.

Respondent/Defendant

Counsel:

Lori Samfiru and Lia Preyde, for the appellant

Eric Turkienicz, for the respondent

Heard and released orally: November 19, 2014

On appeal from the judgment of Justice Graeme Mew of the Superior Court of Justice, dated April 17, 2014.

ENDORSEMENT

[1] The motion judge concluded that the appellant’s assertion that he resigned from the respondent corporation only as an officer and director, but not as an employee, was untenable. We agree.

[2] The only reasonable interpretation to be placed on this record is that the appellant resigned from his position with the respondent.

[3] The only position he held was Vice President of Operations and he was a signing officer of the company. He resigned these positions and he had no other.

[4] The share purchase agreement clearly contemplates continued employment only if requested by the respondent and then only for a period of one month. In any event, the appellant signed a full and final release whereby he released the respondent from any and all claims as a shareholder, director, officer, creditor and/or employee. We agree with the motion judge that on this record, the appellant’s assertion that he did not resign as an employee is untenable.

[5] While the appellant places great reliance on the ROE issued by the respondent, the motion judge dealt with that document in his reasons and was not persuaded by it in the face of all of the other evidence and the fact that the appellant never made any effort to continue his employment. As the appellant’s counsel concedes, the Employment Standards Act has no application in circumstances where an employee resigns.

[6] Hryniak instructs that a reviewing court is to give deference to the decision of a motion judge on summary judgment. At para. 84:

Provided that it is not against ‘the interests of justice’ a motion judge’s decision to exercise the new power is discretionary. Thus, unless the motion judge misdirected herself or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.

[7] Provided the motion judge had the confidence that he could find the necessary facts and apply relevant legal principles to resolve the dispute, it is appropriate for him do so.

[8] Here the motion judge stated that he felt confident he was able to resolve the dispute on the record before him and we agree that in the circumstances of this case, it was appropriate for him to do so.

[9] These reasons are not to be considered an endorsement of the motion judge’s comments with respect to the Employment Standards Act. The appeal is dismissed.

[10] Costs of the appeal will be to the respondent on a partial indemnity basis fixed in the amount of $6,328.00 inclusive of applicable taxes and disbursements.

“Janet Simmons J.A.”

“J. MacFarland J.A.”

“M. L. Benotto J.A.”