CITATION: Oz Optics Limited v. Summers, 2023 ONSC 5558
DIVISIONAL COURT FILE NO.: DC-22-2751
DATE: 20231020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McCarthy, Sheard and Schabas JJ.
BETWEEN:
OZ OPTICS LIMITED
Appellant
– and –
Paul Summers
Respondent
Justin A. Villeneuve, for the Appellant
Kyle Van Schie for the Respondent
HEARD at Ottawa, virtually,
on September 14, 2023
REASONS ON APPEAL
McCarthy J.
Introduction
[1] The Appellant employer appeals from the judgment of Hackland J. (“the trial judge”) dated November 3, 2022 (“the decision”).
[2] The Respondent employee was employed by the Appellant as a senior draftsperson earning $75,000 annually plus benefits. On February 28, 2022, after nearly three and a half years of employment, he was terminated summarily and without cause. The Respondent was 61 years old at the time of termination; at the date of trial, he remained unemployed.
[3] The trial judge determined that an employment agreement (“the agreement”) entered into between the Appellant and the Respondent on November 1, 2018, was void and unenforceable. As a result, the trial judge determined that the Respondent was entitled to recover damages in lieu of common law notice. The trial judge awarded the Respondent six months’ salary in the amount of $35,743.13, less certain prescribed payments made by the Appellant under the agreement.
Grounds of Appeal
[4] The appeal raises two issues:
Did the trial judge err in finding that the with-cause termination provisions in the agreement contravened the Employment Standards Act, 2000, S.O 2000 c. 41, (“the ESA”), rendering the agreement void and unenforceable?
Did the trial judge err in his assessment of the applicable common law notice period?
[5] For the reasons that follow, I would dismiss the appeal.
The Standard of Review
[6] Questions of mixed fact and law lie along a spectrum where the standard of review is palpable and overriding error. Only those questions with an extricable legal principle demand the standard of correctness: see Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31, at para. [26](https://www.canlii