Citation: Singh v. Adecco Employment Services Limited, 2019 ONSC 1512
DIVISIONAL COURT FILE NO.: 395/18 DATE: 20190306
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
STEVEN SINGH
Howard Markowitz, for the Appellant
Plaintiff/Appellant
– and –
ADECCO EMPLOYMENT SERVICES LIMITED
Paul S. Schwartzman and Ashlee M. Common, for the Respondent
Defendant/Respondent
HEARD at Toronto: March 6, 2019
ORAL REASONS FOR JUDGMENT
SWINTON J. (Orally)
[1] The appellant appeals from the decision of Deputy Judge Ferguson dated May 28, 2018 that dismissed his action for damages for wrongful dismissal.
[2] The appellant’s written employment agreement contained a termination clause that states in part:
10(b) After ninety (90) days employment, in the absence of just cause, Adecco may terminate the Colleague’s employment at any other time upon providing the Colleague with advance notice, or payment in lieu, in accordance with applicable provincial legislation and any other payments required by such legislation as well as continuing to provide benefits during any applicable notice period. By signing below, the Colleague agrees that the foregoing is the Colleague’s full entitlement upon termination of employment pursuant to the common law and applicable employment standards legislation, and that there is no further amount or obligation owing upon termination.
[3] The trial judge found that the termination clause was enforceable. She held that the clause, read as a whole, clearly and unambiguously specified that entitlement to notice on termination was to be in accordance with applicable provincial legislation, and the presumption of reasonable notice at common law was rebutted.
[4] The trial judge’s interpretation of the employment contract is entitled to deference, and an appellate court should not intervene absent palpable and overriding error (see: Oudin v. Le Centre Francophone de Toronto, 2016 ONCA 514 at para. 10).
[5] I see no error in the trial judge’s interpretation of the termination clause. The appellant focuses on the reference to “applicable provincial legislation” and suggests these words are not sufficiently clear. However, he seems to ignore the further sentence quoted above, which I repeat
By signing below, the Colleague agrees that foregoing is the Colleague’s full entitlement upon termination of employment pursuant to the common law and applicable employment standards legislation and that there is no further amount or obligation owing upon termination.
When the termination clause is read as a whole, it is clear and unambiguous that the parties agreed that the appellant’s only right to notice on termination was in accordance with applicable employment standards legislation. The clause clearly rebuts the presumption that the appellant is entitled to reasonable notice at common law.
[6] I disagree with the submission that the trial judge improperly considered the subjective intention of the appellant in interpreting the clause. Her analysis and conclusion were based on an objective interpretation of the words of the clause (see in particular paras. 21 and 22). Indeed she states at para. 22 that the clause “is clear on the face of it”.
[7] The trial judge’s decision is consistent with the decisions of the Court of Appeal on which she relied, in particular Nemeth v. Hatch Ltd., 2018 ONCA 7 at para. 9. I do not read those cases as imposing a more stringent test than that in Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986.
[8] As the appellant has identified no extricable error of law or any palpable and overriding error, the appeal is dismissed.
[9] I have endorsed the Appeal Book and Compendium as follows: “For oral reasons delivered today, the appeal is dismissed. Costs to the respondent fixed at $5,000.00, which is fair and reasonable in the circumstances.”
SWINTON J.
Date of Reasons for Judgment: March 6, 2019
Date of Release: March 7, 2019
CITATION: Singh v. Adecco Employment Services Limited, 2019 ONSC 1512
DIVISIONAL COURT FILE NO.: 395/18 DATE: 20190306
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
STEVEN SINGH Plaintiff/Appellant
– and –
ADECCO EMPLOYMENT SERVICES LIMITED Defendant/Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: March 6, 2019
Date of Release: March 7, 2019