ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-437556

DATE: 20140822

BETWEEN:

K. Matthew Hoang
Plaintiff

– and –

Mann Engineering Ltd, Aris Building Technologies, Cartwright Management, Mann Enterprises, Wu Ventures, Hay Solar Ltd, and Gigajoule Research and Development Ltd (carrying on business as the "Mann Group")

Defendants

Matthew Hoang, representing himself

Jeff C. Hopkins and Justin Tetveault, for the Defendants

HEARD: October 21, 22, 23, December 9 and 10, 2013

carole j. brown j.

JUDGMENT

[1] The plaintiff, K. Matthew Hoang ("the plaintiff" or "Mr. Hoang") brings this action,

seeking damages for wrongful dismissal in the amount of $150,000, breach of contract in the amount of $100,000, sales commissions owing in the amount of $298,283 and punitive and aggravated damages from the defendants, Mann Engineering Limited, Aris Building Technologies, Cartwright Management, Mann Enterprises, Wu Ventures, Hay Solar Limited, and Gigajoule Research and Development Limited (carrying on business as the "Mann Group") ("the defendant" or "the Mann Group").

[2] It is the position of the plaintiff that he was terminated without cause after only eight months of employment and that commissions to which he was entitled pursuant to his contract and amended contract of employment, and which he had earned during the course of his employment had been wrongfully withheld from him. In particular, he claims for commissions earned on a deal involving Solar Income Corporation ("S.I.C."), which he calculates to be in the amount of $298,283.

[3] It is the position of the defendant, the Mann Group, that there was just cause to terminate the plaintiff's employment without pay in lieu of notice, and there is no commission owing on the negotiations with S.I.C. or with any other organization.

[4] The defendant submits that the plaintiff was terminated for cause for issues of performance of duties, willful disobedience and gross insubordination, culminating in the plaintiff’s refusal to follow direct instructions from the President and owner of the Mann Group, James Mann, and for a chronic inability to get along with co-workers in a civil and professional manner.

The Evidence

[5] The evidence is set forth in this section, with additional evidence set forth in the analysis section, in support of the conclusions reached, so as not to duplicate more than necessary.

[6] At the commencement of trial, the parties submitted an Agreed Statement of Fact (Exhibit 2), which forms part of the evidence.

Matthew Hoang

[7] The plaintiff testified that he has a BA in economics and is a chartered accountant. He had previously worked for three years, until the company wound down in 2009, at an asset management firm, Lawrence and Co, which sold hedge and mutual funds. He testified that he was hired by the defendant as its CFO in October of 2010. The parties entered into a fixed term contract of employment, dated October 1, 2010, with employment commencement date of October 4, 2010 and termination date of October 30, 2011. The plaintiff argues that due to inconsistencies in the contract, it was not a fixed term contract. The defendant maintains that it was for a fixed term. The plaintiff's duties, as set forth in the contract included, inter alia, management of administration, sales and finance staff; responsibility for company financial activities, company budgets, company and personal tax matters; strategic tax planning in coordination with outside experts; and strategic negotiations of all major solar contracts.

[8] The plaintiff testified that during his employment with the defendant, he sold rights to a solar development project worth $400,000 with Conex Energy, negotiated return of 1.1 MW of solar projects previously sold to Conex, negotiated an engineering and procurement construction agreement, and began negotiations toward a Master Purchase Agreement for a 2.2 MW solar project. He testified that at the time of his termination on May 30, 2011, a Letter of Intent ("LOI") had been concluded with Solar Income Corporation (SIC) regarding this latter project.

[9] The plaintiff testified that in about January or February of 2011, he had concluded that the defendant was a dysfunctional company, and that the owner of the defendant, Mr. Mann was unscrupulous, unethical and dishonourable. He testified that in April of 2011, he had received a better offer of employment for more money. Despite his feelings about the company and Mr. Mann, and despite having purportedly received a better offer, he attempted, based on this "better offer" to renegotiate the contract of employment with the defendant. Mr. Mann testified that despite the fact that there had been job performance issues with the plaintiff and that the management group had discussed letting him go as a result of various performance issues, for which Mr. Mann had attempted to coach and assist the plaintiff in order that the plaintiff could succeed, he nevertheless entered into negotiations with the plaintiff as they were in the midst of the negotiations with SIC regarding the solar project.

[10] As a result, an amended letter of employment was prepared dated April 21, 2011 which included a change of duties and responsibilities, focusing more on sales management for solar and core business activities; accounting and financial statements for the defendants; corporate tax planning with the assistance of external consultants; and the development of the solar business including the establishment of a Mann Fund to raise more financing. Base salary was to increase to $150,000 and there were provisions for commission payable on the sale of the 2.2 MW solar project, a timeline for payment of commission on the Barns project, and commissions on future solar projects under development.

[11] There was also a provision regarding termination for reasons other than criminal activity, sexual/human rights abuse or competition with the defendants' business.

[12] The terms also included the following:

"The job responsibilities, salary and commissions and your time period for your notice of employment termination offered to you in this letter supersede that specified in your employment contract, however, all other terms of your employment contract remain in full force and effect."

[13] The original employment contract dated October 1, 2010, contained the following Clause 8:

"Termination with Cause: Your employment may be terminated at any time for cause by notice in writing. Termination for cause will be effective as of the date of the event which gave rise to a cause or such later date as may be specified by Mann Engineering. In the event of termination for cause, you shall have no claim against Mann Engineering in respect of the period after the effective date for wages or other payment or benefits, except as may be required under the Ontario Employment Standards Act (the "ESA") or other applicable legislation. "Cause" shall include but shall not be limited to one or more of the representations made by you in paragraph 1 being false, loss of your driver's license, any form of dishonesty in your dealings with Mann Engineering or its clients, any act of misconduct, or if you disregarded or disobeyed any reasonable order or instruction of the company, or you have been grossly negligent in the performance of your duties; a material breach of this or any other agreement between you and Mann Engineering or its affiliates and a material breach of the requirements of the Employee Handbook.

[14] The plaintiff testified that, following negotiations, the April 21 offer letter was provided to him signed by Mr. Mann, who requested that he sign and return it to him. He testified that he did not return it until mid-May, when he put it on Mr. Mann's desk while Mr. Mann was away in Florida. He testified that thereafter, following his termination on May 30, Mr. Mann took the position that the letter was not returned and withdrew the offer.

[15] The plaintiff testified that he was doing an excellent job for the Corporation, which he termed "dysfunctional", and he was working in the company's best interests, although he was of the opinion that no one else seemed to be. He maintained that the termination was unjustified.

[16] The plaintiff testified that he was owed commission on the SIC Letter of Intent, salary owing at the rate of $150,000 per annum, damages for loss of opportunity to purchase a 10% equity interest in the company, all pursuant to the amended offer letter of April 21, 2011, and punitive and exemplary damages. He testified that he had mitigated damages by finding bookkeeping and accounting work on a short-term contract basis. He indicated that he had not found any permanent employment, as his market value was $300,000 annual income and that such positions were not easy to find. He further acknowledged that he had received back payment owing to the time of his termination from the defendant, which would have to be deducted from any damages he was awarded.

(continues exactly as in the original text…)

Carole J. Brown J.

Released: August 22, 2014

COURT FILE NO.: CV-11-437556

DATE: 20140822

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

K. Matthew Hoang
Plaintiff

– and –

Mann Engineering Ltd, Aris Building Technologies, Cartwright Management, Mann Enterprises, Wu Ventures, Hay Solar Ltd, and Gigajoule Research and Development Ltd (carrying on business as the "Mann Group"

Defendants

JUDGMENT

Carole J. Brown J.

Released: August 22, 2014