Court of Appeal for Ontario

Citation: Oudin v. Centre Francophone de Toronto, 2016 ONCA 514 Date: 2016-06-28 Docket: C61351

Before: Rouleau, van Rensburg and Benotto JJ.A.

Between:

François Oudin Plaintiff (Appellant)

and

Le Centre Francophone de Toronto, Inc. Defendant (Respondent)

Counsel: Stephen Moreau, for the appellant Daniel Girlando, for the respondent

Heard: June 20, 2016

On appeal from the judgment of Justice S.F. Dunphy of the Superior Court of Justice, dated October 29, 2015.

Endorsement

[1] The appellant commenced an action against the respondent – his former employer – for wrongful dismissal. His motion for partial summary judgment was dismissed. The motion judge held that the employment contract signed by the parties limited the appellant’s entitlement on termination to the minimum provided in the Employment Standards Act, 2000 S.O. c. 41 (ESA) applied on termination. As a result, the appellant’s claim for salary in lieu of notice was denied.

[2] The employment agreement was written in French. Section 9.2 of the agreement reads, in part:

…Le CFT peut également résilier la présente entente pour tout autre motif en donnant à l’employé(e) un préavis de quinze (15) jours ou le préavis minimum prescrit par la Loi sur les normes d’emploi, ou en lui versant une indemnité salariale égale au salaire qu’elle aurait droit de recevoir pendant la période de préavis…

[3] The appellant submits that the motion judge erred when he translated the clause from French to English. Further, he submits that the clause is unenforceable because it ousts the operation of the ESA and the common law.

[4] The motion judge translated the clause to read that the respondent could terminate the appellant on providing “the minimum” required by the ESA. The words “ou le préavis minimum prescrit par la Loi sur les normes d’emploi” should have been translated to “or the minimum notice required under the Employment Standards Act” and not “or the minimum prescribed by the Employment Standards Act.” The original agreement therefore provided that the respondent could terminate the appellant’s employment with ESA minimum notice and made no mention of severance.

[5] The respondent acknowledges that the judge’s translation was not accurate but submits that the error was of no moment. It is submitted that the reasons for judgment make it clear that he understood that the section referred to notice, not all of the requirements of the ESA.

[6] We agree.

[7] The motion judge clearly understood that section 9.2 referred only to minimum notice. This is apparent from his conclusion at paragraph 56 where he stated that “the [respondent] agreed to provide only the notice period prescribed by the ESA”. The translation therefore did not factor into his analysis of the clause.

[8] The motion judge’s reasons make it clear that he understood and considered the appellant’s submission that - by referring only to “notice” - the clause ought to be interpreted as an attempt to contract out of all obligations under the ESA. The motion judge rejected this submission and found that there was no attempt to contract out of the ESA and that the parties had agreed that the ESA would be respected.

[9] The motion judge’s decision was based on his interpretation of a contract. He considered the circumstances of parties, the words of the agreement as a whole and the legal obligations between the parties. He concluded at paragraph 54:

Contracts are to be interpreted in their context and I can find no basis to interpret this employment agreement in a way that neither party reasonably expected it would be interpreted when they entered into it. There was no intent to contract out of the ESA in fact; to the contrary, the intent to apply the ESA is manifest.

[10] The motion judge’s interpretation of the contract is entitled to deference: see Sattva Capital Corp v. Creston Moly Corp, 2014 SCC 633 at para 52. As a result, we see no error in his conclusion that the clause is enforceable.

[11] The appeal is dismissed with costs of $10,000 inclusive of disbursements and taxes, payable to the respondent.

“Paul Rouleau J.A.”

“K. van Rensburg J.A.”

“M.L. Benotto J.A.”