COURT OF APPEAL FOR ONTARIO

CITATION: Holland v. Hostopia.com Inc., 2015 ONCA 762

DATE: 20151110

DOCKET: C56448

Strathy C.J.O., LaForme and Tulloch JJ.A.

BETWEEN

Sean Holland

Plaintiff/Appellant

and

Hostopia.Com Inc.

Defendant/Respondent

Craig Colraine and Chris Kalantzis, for the appellant

George Avraam and Jeremy Hann, for the respondent

Heard: May 14, 2015

On appeal from the judgment of Justice John MacDonald of the Superior Court of Justice, dated December 7, 2012.

Strathy C.J.O.:

A. Introduction

[1] The appellant accepted a written offer of employment, which contained a statement that he would be required to sign an employment agreement. He started work. Nine months later, he was presented with an employment agreement, which he signed. That agreement provided for termination by notice under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).

[2] His employment was terminated without cause seven years later. The employer paid him an amount that was at least equal to his ESA entitlement. The trial judge dismissed his action for wrongful dismissal, holding that his damages were limited to the minimum amounts set out in the ESA.

[3] These reasons explain why, in my view, his damages were not confined to the ESA amounts and he was entitled to common law reasonable notice or damages in lieu. While I would allow the appeal in part on this basis, I do not accept the appellant’s submissions that the trial judge erred in rejecting some of his claims for commissions.

B. The Facts

[4] The appellant was hired by the respondent as a National Account Manager, a sales position, pursuant to an offer of employment contained in a two-page letter dated May 13, 2003 (the “Offer Letter”).

[5] The Offer Letter described the essential terms of employment, including salary ($75,000 per year), commissions, benefits and vacation. The offer could be accepted by returning a signed copy of the letter and “the subsequent signing of an employment agreement.”

[6] The letter said nothing about the appellant’s entitlement to notice of termination. Nor did it contain details of his commissions.

[7] The appellant signed the letter, indicating his acceptance of the offer, on June 9, 2003.

[8] On the same date, the appellant signed a Code of Business Conduct and a Proprietary Rights Agreement. The latter contained a 6-month non-competition provision and a 12-month non-solicitation provision. Neither document dealt with termination or notice periods.

[9] Some nine months later, the appellant was presented with a six-page Employment Agreement, dated February 18, 2004, which he signed on March 8, 2004 (the “Employment Agreement”).

[10] The Employment Agreement recited that the respondent had agreed to employ the appellant subject to the terms and conditions set out therein. The operative provisions were preceded by a recital that the agreement was made “in consideration of the Employee’s employment by Hostopia and the compensation paid to the Employee from time to time while so employed”.

[11] Much of the Employment Agreement was boilerplate. The contentious provision is clause 4.3, which allowed the respondent to terminate the appellant without cause or notice, provided it paid him in lieu of notice in accordance with the ESA.

[12] The Employment Agreement had two express terms that varied the terms of the two documents signed along with the Offer Letter. Those new terms doubled the non-competition period to one year and the non-solicitation period to two years.

[13] In the Employment Agreement, the appellant acknowledged that he had read the agreement, understood its terms, was under no duress and knew he had the right to obtain independent legal advice and had either obtained such advice or waived it.

[14] In addition to the Offer Letter and the Employment Agreement, the appellant signed a series of annual commission plans. The validity of these agreements is acknowledged, but their interpretation is at issue. At the time of the termination of his employment, the appellant’s commission entitlement was governed by a Non-Salary Compensation Memorandum. It set out the commissions to which he was entitled if he attained certain sales figures.

[15] The appellant was entitled to a “Strategic Account Bonus” if one of his new accounts generated more than a defined revenue threshold for more than three consecutive months. This bonus was payable only if the appellant was an “employee in good standing” at the time he claimed it. As well, he was entitled to commissions on revenue that was “booked” by the respondent on his accounts. Details of these commissions are set out below.

[16] The appellant’s employment was terminated by the respondent on February 28, 2010, nearly seven years after he was hired. At the time of termination, he had been working on finalizing an agreement with a potential new customer, “EarthLink”. The customer had not been signed up as a new account at the time of his termination. Subsequently, the customer signed a non-binding letter of intent in July 2010 and a formal contract on October 15, 2010, effective October 1, 2010.

[17] On termination, the appellant was paid accrued vacation pay, commissions for the months of January through March 2010, and the sum of $40,756.81 for “payments in lieu of notice.” The calculation of the latter amount is not entirely clear on the evidence. It was agreed at trial that it was at least the amount of his ESA entitlement to severance and termination pay.

[18] About three months after his termination, the appellant found a new position, with similar terms of employment, including the same salary and a commission program. He did not receive commissions until some time after he began the new job.

[19] He sued the respondent, claiming damages for wrongful dismissal, including the loss of the commissions he said he was owed on the EarthLink contract. The trial judge dismissed his action in its entirety. I turn to his reasons for doing so.

C. The Trial Judge’s Reasons

[20] There were two key issues at trial. The first was whether the appellant was bound by the term of the Employment Agreement regarding notice of termination. Was he limited to his rights under the ESA or was he entitled to reasonable notice at common law or damages in lieu? The resolution of this issue would impact his entitlement to commissions earned during the notice period.

[21] The second key issue was his entitlement to commissions on sales he was working on at the time of his termination, including in particular the EarthLink deal. There was conflicting evidence about the appellant’s contribution to securing the EarthLink account.

[22] The key witnesses at trial were the appellant and his former supervisor (who had since left the respondent’s employ) on the one hand, and the respondent’s former CEO on the other hand. The trial judge preferred the evidence of the latter. He described him as the most credible and persuasive witness, who had no interest in the outcome of the case and whose evidence, unlike the appellant’s, was generally consistent with the documentary evidence.

[23] The trial judge rejected the appellant’s argument that the Employment Agreement was void for lack of fresh consideration because he was already bound by the employment agreement contained in the Offer Letter. He found that the two agreements were interrelated and together constituted a single contract of employment. There was consideration for the contract as a whole, which had contemplated the acceptance process to which the plaintiff had agreed. The two agreements were consistent and one did not negate the other. The appellant admitted he had signed the second agreement after quickly reading it. The trial judge inferred that he did so because he knew that the Employment Agreement was the second part of his acceptance of the offer of employment, a process to which he had agreed when he signed and returned the Offer Letter. He made no attempt to clarify anything in the document, did not object to any part of it, and simply signed it.

[24] The trial judge distinguished this court’s decision in Hobbs v. TDI Canada Ltd. (2004), 2004 CanLII 44783 (ON CA), 246 DLR (4th) 43. There, this court found there was no consideration for an agreement entered into after the commencement of employment, when the employee had already accepted employment based on an offer letter. Unlike this case, the trial judge said, in Hobbs the offer had not been presented to the employee as “the introductory part of the more extensive contract of employment that was to follow at a later date.” Nor was there anything in the offer letter in that case suggesting that the employee would be required to sign another document that would form part of the agreement.

[25] The trial judge found the facts of this case were different from Hobbs. Here, the Offer Letter was presented to the appellant as the introductory part of the more extensive contract of employment, with another part to be signed subsequently. Further, he held, both documents are consistent. One does not negate the other.

[26] He concluded:

The result is, I find, that there was valid consideration for both parts of the one contract of employment. Stated differently, consideration for the contract as a whole is proven by reason of the communicated and agreed acceptance process, which led to two closely interrelated documents comprising one contract of employment.

[27] The trial judge accepted the respondent’s evidence that the appellant was terminated for poor sales performance and for no other reason. He rejected the appellant’s assertion that the respondent terminated him to avoid paying the EarthLink commission. He found that there was no deal with EarthLink at the time of the appellant’s termination and it would be many months before a deal was finalized.

[28] Much of the evidence at trial centred on the issue of whether the appellant had secured the EarthLink contract before the termination of his employment and how much he had been responsible for securing the deal. The trial judge found against the appellant on this critical issue. Not only was there no documentary evidence of an agreement being in place at the time of his termination, the evidence was inconsistent with that claim. Following his termination, the appellant attempted to negotiate an agreement with the respondent to permit him to continue to work on the EarthLink deal. As he said in an email to the respondent after his termination, he would “hate to lose this deal knowing [he could] get it back on track.” This conduct was inconsistent with his assertion that there was a “done deal” at the time.

[29] The trial judge found that the appellant’s contribution to the EarthLink deal was limited. He did not find the opportunity, he worked together with a large team on the deal, and much of the critical work to secure the account was done after he was terminated. The appellant’s work probably contributed no more than 15 percent to the outcome and this occurred during the preliminary stages of a protracted process.

[30] Having found that the Offer Letter and the Employment Agreement were part of one contract, the trial judge found that the termination provision of the latter was sufficiently clear. Employers may referentially incorporate the provisions of the ESA into an employment contract: Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 SCR 986.

[31] The parties agreed that if the ESA was applicable, the appellant was entitled to 12.67 weeks of base salary and commissions. The trial judge found that the amount paid by the respondent on termination was at least as much as he was entitled to. Accordingly, having found the termination provision enforceable, and the appellant having been paid at least as much as he was entitled to, he dismissed the action.

[32] For the sake of completeness, the trial judge stated his conclusions on the other issues. I will discuss those conclusions later in these reasons. For now, the following summary will suffice.

[33] First, but for the termination provisions of the Employment Agreement, the appellant would have been entitled to damages for the period of reasonable notice, based on all aspects of his compensation package, including the loss of commission entitlement. He found that reasonable notice was eight months, bearing in mind the factors from Bardal v. Globe and Mail, 1960 CanLII 294 (ON SC), [1960] O.W.N. 253 (H.C.), the speed with which the appellant obtained equivalent employment, and that there was a gap in respect of commission earnings at the new employer.

[34] Second, the terms of the commission plan precluded a claim for commissions on the EarthLink account because the contract was signed after the termination of the appellant’s employment, the revenues from the account were not “booked” until after the expiry of the notice period and the appellant was not an “employee in good standing” when he claimed the commissions.

[35] Third, although the appellant would not be entitled to commissions for EarthLink, he would have been entitled to all aspects of his compensation package, including commissions booked in respect of other transactions during that period, but for the termination provision in the Employment Agreement.

[36] Fourth, the appellant was not entitled to damages based on unjust enrichment. The appellant suffered no deprivation because he received salary for the work he did on the EarthLink account. In any event, the combination of the termination provision in the Employment Agreement and the Commission Plan were juristic reasons for the enrichment.

[37] Fifth, and finally, if the termination provision did not apply, damages based on eight months’ notice would be calculated as the salary, commissions and bonuses he would have received in that time, less the amounts paid by the respondent on termination and the earnings from his new employer during that period.

D. The Issues

[38] The issues necessary to the determination of this appeal, and as framed by the appellant, are as follows:

1. the enforceability of the termination provision in the Employment Agreement;

2. reasonable notice;

3. the appellant’s entitlement to commissions;

4. the appellant’s entitlement to compensation based on unjust enrichment; and

5. damages.

[39] Before addressing those issues, it is appropriate to consider the applicable standards of review.

E. THE STANDARDS OF REVIEW

[40] The standard of review is particularly important because of the trial judge’s significant findings of fact and his interpretation of the contract. There are, in my view, three applicable standards of review.

[41] First, the issue of the enforceability of the Employment Agreement – an issue of contract formation – is reviewable on a standard of correctness as to questions of law and “palpable and overriding error” for questions of fact: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[42] Second, the appellant’s entitlement to commissions is a question of contract interpretation. In Sattva, at para. 50, the Supreme Court established that contractual interpretation is reviewed by appellate courts as a mixed question of fact and law: see also Housen. Absent an extricable error of law, a trial judge’s interpretation of the contract attracts deference, as it requires a court to apply the principles of contractual interpretation to the words of the contract, in the context of the factual matrix.

[43] The appellant’s entitlement to commissions involved issues of mixed fact and law and is subject to review for palpable and overriding error, unless the trial judge made an extricable error in law, in which case the standard of review is correctness: Sattva; Housen. An extricable legal error in this context includes “the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor”: Sattva, at para. 53, referring to King v. Operating Engineers Training Institute of Manitoba Inc., 2011 MBCA 80, 270 Man. R. (2d) 63, at para. 20. As the Supreme Court cautioned in Sattva, at para. 54, an appellate court should not strive to find extricable legal errors in what are essentially factual disputes over the objective intention of the parties.

[44] Third, a trial judge’s determination of reasonable notice in a wrongful dismissal case is entitled to deference. As this court observed in Minott v. Tam O’Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321 at pp. 343-344:

Determining the period of reasonable notice is an art not a science. In each case trial judges must weigh and balance a catalogue of relevant factors. No two cases are identical; and, ordinarily there is no one “right” figure for reasonable notice. Instead, most cases yield a range of reasonableness. Therefore, a trial judge’s determination of the period of reasonable notice is entitled to deference from an appellate court. An appeal court is not justified in interfering unless the figure arrived at by the trial judge is outside an acceptable range or unless, in arriving at the figure, the trial judge erred in principle or made an unreasonable finding of fact. If the trial judge erred in principle, an appellate court may substitute its own figure. But it should do so sparingly if the trial judge’s award is within an acceptable range, despite the error in principle.

[45] The rule that the court should interfere sparingly on the issue of reasonable notice, even in the presence of an error in principle, has been applied by this court in McNevan v. AmeriCredit Corp., 2008 ONCA 846, 94 O.R. (3d) 458.

[46] Against that background, I turn to the issues raised by the appellant.

F. Analysis

(1) The enforceability of the Employment Agreement

[47] I turn first to the issue whether the termination provision in the Employment Agreement was enforceable, given that it was signed nine months after the appellant commenced employment pursuant to the Offer Letter, which said nothing about notice of termination.

[48] As I have noted, the trial judge considered this court’s decision in Hobbs, but found it distinguishable because here there was consideration for a single contract made up from two closely related and consistent documents.

[49] With respect, the two documents were not consistent. They differed in at least one very material respect. Once accepted, the Offer Letter constituted a complete contract of employment. The appellant was employed pursuant to the Offer Letter for some nine months before he signed the Employment Agreement. It was an implied term of the Offer Letter that he was entitled to reasonable notice prior to the termination of his employment: Francis v. Canadian Imperial Bank of Commerce (1994), 1994 CanLII 1578 (ON CA), 21 O.R. (3d) 75 (C.A.). As the Supreme Court of Canada observed in BG Checo International Ltd. v. British Columbia Hydro & Power Authority, 1993 CanLII 145 (SCC), [1993] 1 S.C.R. 12, at p. 31, “[t]he law has always treated express and implied terms as being equivalent in effect.”

[50] The Employment Agreement contained an inconsistent term. Instead of providing for reasonable notice, it limited the appellant’s entitlement to notice of termination to the statutory minimum set out in the ESA. There was no evidence of any discussion of the subject prior to the appellant’s acceptance of the Offer Letter, no evidence that he was told that the Employment Agreement would contain terms inconsistent with the Offer Letter and no evidence that he agreed to waive his right to reasonable notice of termination when he signed the Offer Letter. Accordingly, the Employment Agreement introduced a new, very material term, into the existing contract of employment – a term to which the appellant had not previously consented and for which he received no consideration.

[51] The common law entitlement to reasonable notice of termination has been described by the Supreme Court as a “necessary consideration” of an employment relationship: Machtinger, at p. 1024. This court has described an express term contradicting an implied term of reasonable notice as a “tremendously significant modification”: Francis, at p. 84; see also Braiden v. La-Z-Boy Canada Ltd., 2008 ONCA 464, 294, D.L.R. (4th) 172, at paras. 48, 57.

[52] It is well-settled that a promise to perform an existing contract is not consideration: see e.g. K.M.A. Caterers Ltd. v. Howie, 1968 CanLII 172 (ON CA), [1969] 1 O.R. 131 (C.A.); Hobbs; Braiden. Fresh consideration was required: Francis.

[53] In my view, the law in this respect is a matter of simple fairness. It is also a matter of sound employment practice. As Juriansz J.A. noted in Hobbs, at para. 1:

Accepting an offer of employment and committing the next stage of one’s career to a new employer is an important life decision that most people make carefully. Instability in an individual’s life, and in the workforce generally, is minimized when the decision is made on the basis of complete and accurate information about the new position.

[54] Juriansz J.A. noted the importance of fresh consideration where an employer seeks to amend the employment agreement. He stated, at para. 42:

The requirement of consideration to support an amended agreement is especially important in the employment context where, generally, there is inequality in bargaining power between employees and employers. Some employees may enjoy a measure of bargaining power when negotiating the terms of prospective employment, but once they have been hired and are dependent on the remuneration of the new job, they become more vulnerable. The law recognizes this vulnerability, and the courts should be careful to apply Maguire [v. Northland Drug. Co, [1935] S.C.R. 32] and Techniform Products [v. Wolder (2001), 2001 CanLII 8604 (ON CA), 56 O.R. (3d) 1 (C.A.)] only when, on the facts of the case, the employee gains increased security of employment, or other consideration, for agreeing to the new terms of employment.

[55] Without fresh consideration, the Employment Agreement could not displace the implied term of reasonable notice contained in the Offer Letter. The result is that the appellant was entitled to reasonable notice of termination at common law. This impacts, potentially, his damages in lieu of notice and his entitlement to commissions that became payable after his termination.

(2) Reasonable Notice

[56] The trial judge found that, had the Employment Agreement not applied, the appellant would have been entitled to eight months’ notice, having regard to the Bardalfactors, the speed with which he found comparable employment and the delay before he was able to generate commissions at his new job.

[57] This issue is significant, not to the damages for loss of salary, which were addressed through the ESA payments and the appellant’s own mitigation efforts, but for lost commission earnings, which took time for the appellant to generate at his new job.

[58] The appellant argues that the trial judge erred in principle by failing to give consideration to the non-competition and non-solicitation provisions of his employment contract. He says that, on a proper analysis, reasonable notice should have been 12 months. He relies on Prozak v. Bell Telephone Co. of Canada, (1984), 1984 CanLII 2065 (ON CA), 46 O.R. (2d) 385 (C.A.); Kaufman v. Weston (1996), 18 C.C.E.L. (2d) 198 (Ont. S.C.); and Sharpe v. Computer Innovations Distribution (1994), 1994 CanLII 5241 (NB CA), 146 N.B.R. (2d) 254 (C.A.).

[59] The appellant refers to John R. Sproat, Wrongful Dismissal Handbook, 5th ed. (Toronto: Carswell, 2009), at pp. 6.34.8-6.34.9, to support the submission that a restrictive covenant may increase the reasonable notice period. The learned author cites two cases of this court in which non-competition covenants increased the notice period: Murrell v. Burns International Security Services Ltd. (1997), 1997 CanLII 1287 (ON CA), 33 C.C.E.L. (2d) 1 and Ryan v. Laidlaw Transportation Ltd. (1995), 1995 CanLII 7020 (ON CA), 26 O.R. (3d) 97, per McKinlay J.A. (dissenting, but not on this point).

[60] In both of those cases though, the non-competition provisions made it more difficult for the employee to find comparable employment. There was no evidence in this case that the non-competition provisions were likely to make it more difficult for the appellant to find comparable employment. I see no error in principle in the trial judge’s failure to consider the impact of the non-competition covenants.

[61] There is, however, merit to the appellant’s submission that the trial judge should not have considered the speed with which he found new employment in determining the period of reasonable notice. Notice is to be determined by the circumstances existing at the time of termination and not by the amount of time that it takes the employee to find employment: see Panimondo v. Shorewood Packaging Corp. (2009), 2009 CanLII 16744 (ON SC), 73 C.C.E.L. (3d) 99 (S.C.), citing Harper v. Bank of Montreal (1989), 27 C.C.E.L. 54 (Ont. Div. Ct.). If two employees in identical circumstances are terminated at the same time, they are entitled to the same notice, regardless how long it takes each of them to find a new job. One may mitigate her damages by finding a comparable job shortly after being dismissed. The other may be unable to find work for years. They are entitled to the same notice, regardless of the outcome. The time it takes to find a new job goes to mitigation of damages, not to the length of notice.

[62] I am unable to find, however, that the trial judge’s consideration of this factor had a significant impact on his conclusion concerning the proper notice period. Having regard to the authorities cited by counsel for the appellant, the appropriate range in this case was between eight and twelve months. While the eight months awarded by the trial judge was at the very low end of the range, I would not interfere with the exercise of his discretion, notwithstanding the error in referring to the time it took the appellant to find new work: See McNevan v. AmeriCredit Corp., at paras. 34-35.

(3) Entitlement to commissions

[63] The respondent’s Commission Plan, which appears to have been re-issued and amended annually, was three pages long and covered six different commissions or bonuses. It was not disputed that the plan itself was valid and there was consideration for it.

[64] The plan had “General Terms”, apparently applicable to all forms of commission remuneration as well as specific terms applicable to each particular form. Some terms were defined and some were not. Its language could only be fully understood by someone who was familiar with the respondent’s business. It is clear from his reasons that the trial judge found the language challenging.

[65] That said, as the trial judge observed, the Commission Plan was “written in the language of the defendant’s business for use between an employer and its employee”. The trial judge had the benefit of hearing evidence about how the Commission Plan worked in practice. His detailed analysis and interpretation of the Commission Plan was informed by the factual matrix developed by the witnesses on both sides and the historical application of the plan in the course of the appellant’s employment.

[66] There are three commissions relevant to the EarthLink account. I will begin by describing each commission and will summarize the trial judge’s reasons for dismissing the appellant’s claims for these commissions. Under the heading “Analysis”, I will explain why the trial judge’s interpretation of the Commission Plan contains no extricable error of law and why I would defer to that interpretation.

Strategic Account Bonus

[67] The first commission is the Strategic Account Bonus. This was a bonus payable on billings for new accounts that were identified as “strategic accounts”. EarthLink was a strategic account. The 2010 Commission Plan provided that, among other things, the appellant was entitled to a bonus, of up to $14,000, for new accounts with billings of no less than $10,000 per month for at least three consecutive months. In order to be paid a bonus, the respondent had to collect the revenue, as opposed to simply invoicing it. The commissions could be claimed by an employee up to 18 months from the time of signing the account, provided the employee was in “good standing” at the time.

[68] The trial judge found that the appellant was not entitled to the Strategic Account Bonus for EarthLink. This was because he was not an employee in good standing when EarthLink billings commenced in March 2011 and had not proved that he had claimed the bonus within 18 months of the account being signed.

Variable Compensation Commission

[69] The second commission, the “Variable Compensation (Commission)”, was payable based on an employee’s attainment of a revenue quota. If the appellant reached 100 percent of his quota ($600,000 in 2010) he was entitled to 16 percent of that revenue. The provisions applicable to this form of commission stated, “Commissions are paid on a booked basis, with adjustments as necessary for credits, charge-backs and other net amounts.”

[70] The trial judge found he was not entitled to this commission for EarthLink because the EarthLink revenues were not booked and adjusted until March 2011, over a year after his termination and outside the reasonable notice period.

Minimum Monthly Revenue Bonus

[71] The third commission was described as a “Minimum Monthly Revenue Bonus”. The Commission Plan described the entitlement to this “bonus” as follows: “Effective for 2012, any contract with a minimum monthly recurring revenue fee shall earn the sales representative a front-end commission payment equivalent to 100 percent of the 3rd month’s consecutive billing – to a maximum of $20,000.” This commission, like all commissions, was subject to the “General Terms” of the Commission Plan, which provided, among other things, that the “Employee must be employed in good standing by Hostopia to collect any trailing bonus amounts, which means that no trailing bonus survive employee termination for any cause.” It also provided, “Any bonus amounts earned up to termination of employment must be paid within 30 days of termination date.”

[72] The trial judge found that there was no Minimum Monthly Revenue Bonus payable to the appellant because there was no minimum monthly recurring revenue payable on the EarthLink contract. In any event, although he did not expressly say so, he would have found that the bonus was not payable because of the term requiring the employee to be in good standing to collect it.

Analysis

[73] The trial judge made important findings of fact in relation to the appellant’s claims for commissions. These findings were based on his assessment of all the evidence, including conflicting testimony that required him to make findings of credibility, which he resolved in favour of the respondent.

[74] First, he found that the appellant was assigned the position of lead person on the EarthLink account. He did not find the EarthLink opportunity. He worked with a large team of the respondent’s employees.

[75] Second, he rejected the appellant’s evidence that he was responsible for obtaining a “deal in principle” with EarthLink prior to the termination of his employment. This assertion was not confirmed by the documentary evidence and it was inconsistent with the appellant’s own words and conduct. He found that it was “very improbable that EarthLink decided in late February 2010 to finalize a deal with [the respondent]” and that the appellant was aware of this.

[76] Third, he found that the appellant’s contribution to getting the EarthLink deal to a finalized contract and converting it into revenue, was no more than 15 percent. He said, “I find that the plaintiff’s work, in a team context, probably contributed no more than 15 percent to that outcome, and that that 15 percent was in the preliminary stages of a protracted process.” In coming to this conclusion, the trial judge accepted the respondent’s evidence that after the appellant’s departure the respondent put much detailed and important work into persuading EarthLink to deal with it. The appellant was only one of many of the respondent’s employees who brought the deal to fruition. The work done after his termination was much more of a contribution.

[77] Fourth, the trial judge found that the appellant’s employment was not terminated for the purpose of avoiding the payment of commissions on the EarthLink deal. He was terminated due to poor sales performance.

[78] These findings are grounded in the evidence and in the trial judge’s assessment of the credibility of witnesses and we cannot interfere in the absence of palpable and overriding error. No such error has been demonstrated.

[79] The trial judge’s findings of fact support the conclusion that the appellant was not the “effective” or “substantial” cause of the EarthLink contract: see Howard A. Levitt, The Law of Dismissal in Canada, loose-leaf, 3rd ed., (Aurora, Ont.: Canada Law Book, 2003), at pp. 9-39 to 9-40. Had he been, there might have been an argument that he had done all that was necessary to earn the commissions and the commission plan only addressed the timing of payment.

[80] But that argument is not available to the appellant. Not only was there no contract signed with EarthLink at the time of his termination, the contract was not signed until after the expiry of the reasonable notice period. Moreover, the language of the commission plan precluded his recovery of commissions. The appellant was not entitled to compensation for the commission because the revenue from the EarthLink contract was not “booked” until more than a year after the termination of his employment and he was not an “employee in good standing” when he claimed the commission.

[81] The appellant has failed to demonstrate any extricable legal error in the trial judge’s interpretation of the challenging language of the Commission Plan. That interpretation was informed by the evidence of the way in which the respondent conducted its business and by the practical meaning given by the parties to the termination of the contract.

(4) Unjust Enrichment

[82] The appellant submits that the respondent has been unjustly enriched. He “harpooned the whale” – brought the lucrative EarthLink contract to the respondent – but received no compensation for his efforts.

[83] To establish a claim for unjust enrichment, the appellant must demonstrate: (1) an enrichment of the defendant; (2) a corresponding deprivation of the plaintiff; and (3) an absence of juristic reason for the enrichment: Garland v. Consumers' Gas Co., 2004 SCC 25, [2004] 1 SCR 629, at para. 30.

[84] The appellant’s submissions on this issue impugn the trial judge’s findings of fact concerning his contribution to the ultimate securing of the EarthLink contract. The appellant asks us to re-evaluate the evidence, and the credibility of the witnesses and to substitute our opinion for the trial judge’s. He has demonstrated no palpable or overriding error in the trial judge’s assessment of the evidence on this issue. In my view, there is simply no basis on which we can interfere.

[85] On the trial judge’s findings of fact, the appellant did not throw the first harpoon, the whale was not firmly on the line when his employment was terminated, and there was much work still to be done to bring it to shore. This work was not accomplished during the appellant’s employment and his entitlement to commission did not arise during the reasonable notice period.

[86] As I have noted, the trial judge found that the appellant was compensated for his work on the EarthLink account through his base salary and he had contractually agreed that he would not receive further compensation for his work until revenues had been booked. Thus, the appellant suffered no deprivation and there was a juristic reason for the enrichment of the respondent.

[87] In my view, the trial judge made no error in finding there was no right to equitable compensation on unjust enrichment principles.

(5) Damages

[88] The respondent does not dispute that, if the appellant was entitled to reasonable notice, he is entitled to be compensated for the commissions he would have been paid in the ordinary course during the reasonable notice period.

G. Disposition

[89] For these reasons, the appeal is allowed in part, and the judgment below is varied by awarding damages assessed in the manner identified by the trial judge, as set out in paragraph 37 of these reasons. Counsel indicated that they would likely be able to resolve quantum. If they are unable to do so they may make submissions in writing within 30 days of the release of these reasons.

[90] Success on this appeal is divided. If counsel are unable to resolve costs, they may make written submissions, limited to five pages, excluding the costs outline, also within 30 days.

“G.R. Strathy C.J.O.”

“I agree H.S. LaForme J.A.”

“I agree M.H. Tulloch J.A.”

Released: November 10, 2015