COURT FILE NO.: CV-10-398265
DATE: 20121128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bernard Musoni Plaintiff – and – Logitek Technology Ltd. Defendant
Self-represented Plaintiff
Reagan Ruslim , for the Defendant
HEARD: November 16, 2012
E.M. Morgan, J.
[ 1 ] The Plaintiff in this action seeks damages in the amount of $70,000.00 for wrongful dismissal.
[ 2 ] The Plaintiff was hired as a bilingual customer support agent in October, 2005. The parties signed an Employment Agreement on April 17, 2006. This Employment Agreement governed the terms of the Plaintiff’s employment for the Defendant.
[ 3 ] Although the Plaintiff did not have legal advice when he signed the Employment Agreement, there is no suggestion that he did not read it and understand it. Indeed, he had several weeks to do so prior to signing it. The Plaintiff is a sophisticated person who is articulate in both English and French. He represented himself at the trial of this action, and confirmed at the hearing that he read and understood the Employment Agreement when he signed it. He concedes that the Employment Agreement is valid and in force.
[ 4 ] Paragraph 3 of the Employment Agreement provides:
QLOGITEK [i.e. the Defendant] or EMPLOYEE [i.e. the Plaintiff] shall have the right, to terminate this employment agreement by notice in writing. A fifteen (15) days notice period will be required by the appropriate party, if agreement is terminated.
[ 5 ] The Plaintiff’s employment was terminated, without cause, by written notice on March 6, 2008. That notice was accompanied by a cheque payable to the Plaintiff in the amount of $1,804.38, which was described in the notice as “a final settlement and which includes 2 weeks notice pay.” The written notice, together with two weeks’ pay, complied with the Defendant’s requirements under sections 54 and 57 of the Employment Standards Act , S.O. 2000, c. 41 .
[ 6 ] The Plaintiff concedes that the 15 days’ notice period required under the Employment Agreement is equal to half a month’s pay, and that the amount of $1,804.38 is the correct amount for half a month’s pay. He acknowledged at trial that he deposited the cheque and that the terms of the Employment Agreement were thereby fulfilled.
[ 7 ] Plaintiff does not, therefore, claim that he was owed more money under the Employment Agreement. Rather, his claim is based on other alleged wrongdoing by the Defendant, some of which occurred at the commencement of his employment, some of which occurred during the course of his employment, and some of which he only learned of subsequent to his termination. His overarching argument is that although the Defendant purported to terminate him without cause, the Defendant actually intended to fire him for cause.
[ 8 ] Specifically, the Plaintiff pleads in paragraph 5 of his Statement of Claim that, “Logitek dismissed me on the basis of unverified allegations of record of offence. Specifically, on May 9 th , 2007, I signed a peace bond but I was not convicted of any offence.” He further pleads in paragraph 8 of his Statement of Claim that, “Following my termination, Logitek attempted to justify the dismissal through the fabrication of certain incidents which contained inconsistent facts.”
[ 9 ] After being terminated, the Plaintiff filed a complaint under Ontario’s Human Rights Code alleging discrimination by the Defendant. That complaint was dismissed on March 4, 2009 following a two-day hearing. The Plaintiff then filed an application for reconsideration of that decision, which was also denied by the Human Rights Tribunal on May 7, 2009. He then applied for a reconsideration of the reconsideration, leading to another one-day hearing before the Human Rights Tribunal. This final application for reconsideration was denied by the Tribunal on June 9, 2011.
[ 10 ] The record of offence to which the Plaintiff refers in his Statement of Claim was the subject of a substantial portion of the Plaintiff’s testimony at trial. He explained that the president of the Defendant company, Latiq Qureshi, referred a defense lawyer to him at a time when he was facing criminal charges, and that this referral was an “interference” with the Plaintiff’s criminal case. The Plaintiff later filed a complaint against this defense counsel with the Law Society, and blames Mr. Qureshi for having connected him with the lawyer in the first place. Ultimately, the complaint against the lawyer was dismissed by the Law Society.
[ 11 ] Mr. Qureshi is, according to the Plaintiff, active in the Liberal Party, and knew the criminal lawyer from his Liberal Party involvement. This links up with another of the Plaintiff’s complaints about the Defendant – that upon being first interviewed for the job in 2005, he was asked by the Defendant’s interviewer whether he is a Liberal or a Conservative. He was never sure why he was asked that, as he is not a politically active person and this was unrelated to his job with the Defendant.
[ 12 ] The Plaintiff further argues that the Defendant produced an employment log during the course of its defense of the Human Rights Code complaint which contained many erroneous records. The employment log indicated that the Plaintiff had been admonished several times for unacceptable work and poor attitude, but the Plaintiff states that his record of employment was positive and that he had never been admonished or reprimanded in any way.
[ 13 ] The Plaintiff also contends that he was asked during the course of his employment to help train another employee by speaking French to her so that her language skills would improve. He points out that he was hired as a French-speaking customer support agent, and not as a language instructor, and so did not think he should be assigned this task. He also testified that in any case the other employee was so weak in her language ability that it was not feasible to carry on a proper French conversation with her.
[ 14 ] The Plaintiff may have valid observations about his treatment by the Defendant. It is apparent that he genuinely feels that he was mistreated. However, from an employment law point of view none of these complaints have any cogency. Much as the Defendant may have wanted to dismiss him with cause, the Plaintiff was dismissed without cause and was paid what was owed to him for that dismissal.
[ 15 ] Had the Plaintiff been rightly dismissed with cause, there would have been no pay in lieu of notice owing to him. Had he been wrongfully dismissed – i.e. without notice or cause for dismissal – he would have been owed pay in lieu of notice as provided for in the Employment Agreement and in the Employment Standards Act . Either way, he would not have done better than what he actually received from the Defendant – pay in lieu of notice precisely as stipulated in the Employment Agreement and in the legislation.
[ 16 ] Accordingly, none of the Plaintiff’s allegations against the Defendant provide a legal footing on which he can base his claim to damages. The action is therefore dismissed, with costs to the Defendant on a partial indemnity basis.
[ 17 ] The Defendant has submitted a Bill of Costs in the rather modest amount of $5,012.48, all inclusive. Although this was only a one-day trial, it did entail the exchange of pleadings, preparation of the documentary record, attendance at mediation and the pre-trial conference, preparation of a written case brief, and preparation for and attendance at trial. The Defendant shall have costs in the amount of $5,012.48, inclusive of disbursements and HST.
Morgan, J.
Released: November 28, 2012
COURT FILE NO.: CV-10-398265
DATE: 20121128
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Bernard Musoni Plaintiff – and – Logitek Technology Ltd. Defendant
REASONS FOR JUDGMENT
E. Morgan J.
Released: November 28, 2012