ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-454589

DATE: 20141230

BETWEEN:

RAZMIG TOSSONIAN
Plaintiff

– and –

CYNPHANY DIAMONDS INC. o/a SYMPHONY DIAMONDS
Defendant

Andrew Wray, Christian Vernon and Niiti Simmonds, for the Plaintiff

William Chalmers, for the Defendant

HEARD: 20-24 October and 22-23 December 2014 at Toronto

MEW J.

REASONS FOR DECISION

[1] In this wrongful dismissal action, the plaintiff, Razmig Tossonian claims that he had a guaranteed five-year contract of employment with the defendant. He says he was dismissed after just eight months. He claims as damages the balance of the income which the five-year contract of employment would have generated, less his actual earnings during that period.

[2] The defendant denies the existence of a five-year contract of employment and claims that, in any event, the plaintiff resigned from his job.

[3] Although the trial consumed seven days of evidence, motions and argument, there are really only two core issues:

a. What were the terms of the plaintiff’s contract of employment with the defendant and, in particular, did the contract provide for a fixed term of five years employment?

b. Was the plaintiff dismissed or did he resign?

[4] In the event that it is found that the plaintiff was dismissed, there are issues relating to mitigation.

[5] The plaintiff has lived in Vancouver for much of his life. He is a member of the Armenian community in that city. In 2008, he was working as a sales person at Rodeo Jewellers in Vancouver. For some time, the plaintiff had been considering moving to Toronto. He was on the verge of starting a family. He knew that Toronto had a much larger Armenian community, including an Armenian school. He thought that Toronto would be a good place to raise his family.

[6] Through a mutual connection, the plaintiff was put in touch with Sarkis Zorian, the owner of the defendant Symphony Diamonds, which was located in the Greater Toronto Area. On a visit to Toronto in July 2008, the plaintiff met Mr. Zorian. During that conversation he learned that Mr. Zorian was planning to open a new store in Don Mills. The plaintiff expressed an interest in working for Mr. Zorian. The meeting was a positive one. It was followed by a string of email exchanges over the next five months. Mr. Zorian told the plaintiff that he was prepared to employ him. In one of those emails, dated 21 August 2008, Mr. Zorian wrote:

… I want to confirm to you the guarantee of your job with the financial match.

[7] When asked by the plaintiff to clarify what he meant, Mr. Zorian responded proposing a compensation package.

[8] By the end of November 2008, the plaintiff's wife was pregnant with their first child and the plaintiff told Mr. Zorian that in the circumstances a move to Toronto was not possible at that time.

[9] It was not until 2011 that further discussions took place between the plaintiff and Mr. Zorian, resulting in the plaintiff resigning from his job at Rodeo and moving to Toronto to take up employment with the defendant.

[10] The plaintiff and Mr. Zorian each gave detailed accounts of the events, as they recalled them, relating to their negotiations and the employment relationship. Each of them also called a number of other witnesses. Certain aspects of their stories are difficult if not impossible to reconcile without preferring the evidence of one or the other. While I have considered all of the evidence, I make reference only to the evidence and the findings which flow from that evidence which I regard as necessary to explain my decision.

The Contract of Employment

[11] The plaintiff and Mr Zorian met in Toronto on 11 July 2011. There are no contemporaneous notes of that meeting. Both Mr. Tossonian and Mr. Zorian agree that there was a general discussion about the terms upon which the plaintiff might be employed, including salaries, bonuses, commission and other incentives. There was a further, briefer, discussion, on 15 July. Mr. Tossonian claims that on 15 July, if not on 11 July, one of the matters discussed was what Mr. Tossonian refers to as a "guarantee". According to Mr. Tossonian, Mr Zorian made an offer at the meeting on 15 July consisting of the following elements:

a. a salary of $80,000 per annum

b. a cash payment of $250 per week (for working a six day each week)

c. a guaranteed term of employment fixed at five years

d. commission of 1% if sales exceeded $2 million

e. a cheque for $10,000 as a one-time moving expense

[12] The only one of these terms which is in dispute is the five-year guarantee. The one-time moving expense payment of $10,000 was not part of the discussion on 11 July. It came up at the 15 July meeting following Mr. Tossonian's indication that moving his family from Vancouver to Toronto was going to be expensive.

[13] Mr. Tossonian testified that he accepted these terms. He told Mr. Zorian that he would be coming to Toronto. He also said that he was told by Mr. Zorian that Mr. Zorian would send Mr. Tossonian an email outlining what had been discussed and that after that they would write up a contract.

[14] On 20 July 2011, Mr. Zorian sent Mr. Tossonian the following email:

Hi Razmig

It was great seeing you in Toronto with the family. Your title with Symphony Diamonds will be DIRECTOR of the 2 stores as we discussed and these are the numbers we spoke.

Moving incentive $10,000

2 cheques a month each $3000

Every week extra day paid C $250

1% percentage over $2,000,000 $20,000

If I missed anything please remind me.[sic] and we're very exited [sic] to work together.

Best of regards to you and the family

Sako,

[15] Mr. Tossonian did not respond to this email in writing. However, he claims that he did telephone Mr Zorian. He told Mr Zorian that the email looked great, but that there was no guarantee. He says that Mr Zorian replied "That's not a problem. I will guarantee you". Mr Tossonian understood this to mean that Mr Zorian was guaranteeing his employment "100%". Asked why he did not confirm this "guarantee" - which he acknowledged was of critical importance to him - in writing, Mr Tossonian said that he trusted Mr Zorian.

[16] Mr Tossonian resigned from his job at Rodeo. He and his family arrived in Toronto on 21 or 22 August 2011. He started work at the defendants’ Don Mills store on 29 August 2011.

[17] During September and October three documents came into being which, the plaintiff asserts, bear on the issue of what were the terms of Mr Tossonian's employment.

[18] The first is a document dated 9 September 2011. It is printed on the letterhead of Symphony Diamonds. It is headed "Employment Contract". Details of the employer are printed on the document. The employee's details have been written in (the evidence was that Mr Tossonian himself populated this part of the document). After that, the following narrative appears:

The Parties agree as follows:

The Employee agrees to become employed by Symphony Diamonds and starting day of August 29th 2011. The Employee shall work 40 Hrs a week as scheduled by the Employer.

Wages

The Employer agrees to pay the Employee, for his work, gross Bi Weekly wages of $3,120

Including 4% vacation pay.

The Employer agrees to deduct all Taxes and submit all deductions payable as prescribed by Law to RCA.

The Employee agrees to not being eligible for any of the statuary [sic] holidays

[19] The document is signed by Mr. Tossonian.

[20] The uncontested evidence is that the 9 September 2011 document was prepared for payroll purposes.

[21] The second document is a letter on Symphony Diamonds letterhead dated 8 October 2011. It is addressed to "To whom it may concern" and states:

Please accept this letter as confirmation that Razmig Tossonian has been employed with Symphony Diamonds, since August 29th, 2011. Currently Razmig Tossonian:

• Holds the title of Regional Director

• Earns a salary of $81,120.00 payable annually, and a bonus of $12,000.00

• Works on a fulltime basis of 40 hours per week

• Has guaranteed Five year position contract with Symphony Diamonds

If you have any questions or require further information, please do not hesitate to contact me….

[22] This document is signed by Mr. Zorian. The parties agree that this letter was prepared by Mr. Tossonian to facilitate him getting a mortgage. He needed a letter from his employer verifying his employment. Mr. Tossonian says that Mr. Zorian signed the document saying "good luck - I hope you get your mortgage". Mr Zorian, on the other hand, says that he was told by Mr. Tossonian that the letter needed to say that his employment was guaranteed. He says it was a mistake for him to have signed this letter, because it inaccurately represents that Mr. Tossonian had a five-year guaranteed term, but his intention was to help Mr. Tossonian.

[23] The third document, also printed on Symphony Diamonds letterhead, is also titled "Employment Contract". It provides as follows:

Witnesseth:

1. The company hereby employs the employee as general Director for the term of five years commencing on the date of agreement, and the employee hereby accepts such employment.

2. During the employee's employment he will:

A: Devote such time and effort as may be reasonably required by the company to perform his duties

B: Not engage in any other employment or business activity without the company's written consent.

C: Perform such duties as may reasonably be required of him.

3. For the service rendered by the employee, the company shall pay the employee as follows:

A: The annual sum of $81,120, with yearly increases.

B: A bonus of $12,000 payable annually.

C: An additional 1% on a goal of two million yearly on total sales.

D: A moving bonus of $10,000 paid upon start date.

4. The employee, understand that he will acquire confidential information of value to the company during the course of his employment. The employee hereby agrees not to disclose such confidential information to any other party, or to use such information for his own profit, except in performance of employment activities beneficial to the company.

5. This agreement constitutes the entire agreement between Symphony Diamonds and Razmig Tossonian.

In witness to their agreement to these terms, Sako Zorian and Razmig Tossonian affix their signatures below:

[24] Both Mr. Zorian and Mr. Tossonian signed this document.

[25] Mr. Tossonian claims this document was the manifestation of Mr. Zorian's promise, when they shook hands on 15 July 2011, to draw up a formal employment contract later. Mr Tossonian said that he had not wanted to bug Mr. Zorian about the written agreement immediately after he started working. But then he spoke to Mr. Zorian, who said that he was not good at contracts, and asked Mr. Tossonian to write up a contract. Mr. Tossonian says that he went online and found some wordings. He says that he prepared this document in the store at the end of September or in early October 2011. He dated the document 15 July 2011 - the date upon which he and Mr. Zorian had shaken hands. He used the title "general Director" to describe his position. He says that Mr. Zorian read the document, asked no questions about it, and signed it first, followed by Mr. Tossonian. Mr. Zorian says that this document was also produced for the purposes of facilitating Mr. Tossonian's application for a mortgage. Apparently the "to whom it may concern" letter of 8 October was insufficient. Mr. Tossonian explained that because he was borrowing more than the value of the condominium that he was purchasing, the mortgage lender required more comprehensive evidence of Mr. Tossonian's employment. Mr. Zorian claims that he did not read the document before signing it.

[26] Sometime after the second and third documents were created, Mr. Zorian received a telephone call in connection with Mr. Tossonian's mortgage application. Mr. Tossonian happened to be in Mr. Zorian's office when he took the call. Mr. Zorian said to the caller "yes, I'm stuck with him for five years and hopefully longer". Mr. Zorian said that he made this comment in response to the caller saying "you're stuck with him for five years". At trial, Mr. Zorian claimed that he thought "stuck with him for five years" was a figure of speech, rather than a reference to the existence of a fixed term employment contract.

[27] When he was examined for discovery, Mr. Zorian was asked "Did Razmig have a guaranteed five-year contract with your company or not?", to which he answered "I don't recall" and then, when pressed, said that it is possible that Mr. Tossonian might have had a five-year guaranteed contract.

[28] On 20 October 2014, shortly before the commencement of this trial, the defendant's solicitors purported, on Mr Zorian's behalf, to correct Mr. Zorian's previous answer (relying on Rule 31.09 in doing so). An email from Aird & Berlis states:

Mr. Zorian does recall that Mr. Tossonian did not have a guaranteed five-year contract with Symphony Diamonds. Mr. Zorian said "I don't recall" in answer to the question because he was afraid of admitting that he, at Mr. Tossonian's request, signed a letter that states that Mr. Tossonian had a five-year guaranteed contract, when Mr. Tossonian had no such contract, just so Mr. Tossonian could obtain a mortgage.

The Ending of the Plaintiff's Employment

[29] The plaintiff’s employment with the defendant ended on Friday, 30 March 2012, just eight months after it had started. Mr. Tossonian claims that he was fired by Mr. Zorian. Mr. Zorian says that Mr Tossonian resigned. It is common ground that Messrs. Tossonian and Zorian had two conversations on 30 March, initially at the Linda Restaurant located close to the store, and then on a street near the store.

[30] To put what happened on 30 March in some context, it is necessary to go back to earlier in the year and a conversation that took place between the plaintiff and a co-worker, Anna Nahabedian. According to Ms. Nahabedian, the plaintiff had on a number of occasions mentioned that he had been talking to one of the defendant's competitors, Raffi Jewellers, who he said were planning to open a new store in the Yorkdale Mall in Toronto. On the day in question, the plaintiff showed Ms. Nahabedian a text (the plaintiff says it was an email) from an owner of Raffi Jewellers who he said was in New York at the time and said to her that even from New York they were approaching him and that when they got back from New York he would have a negotiation with them. It was also Ms. Nahabedian's testimony that Mr. Tossonian was talking to other employees of the defendant about working elsewhere. Ms. Nahabedian says that she told the plaintiff that if Mr. Zorian heard that he or other employees were looking for another job, he would be very upset. She says that Mr. Tossonian responded "don't worry Anna - I have five years - he can't fire me".

[31] Although Mr. Tossonian tells the story somewhat differently, he does acknowledge that he had spoken with Vahe Garabedian, one of the principals of Raffi Jewellers, who, he said, had asked him whether he knew that Raffi was planning to open a store in Yorkdale and what he thought about working at Raffi. He says that one day Ms. Nahabedian had seen that one of the Garabedians was calling on Mr. Tossonian's mobile phone. She told him that if Mr. Zorian knew that he had spoken to Raffi he would "get mad". While he denies that he was talking to other employees about leaving, Mr. Tossonian does acknowledge that he told Ms. Nahabedian that he had a five-year contract.

[32] Mr. Tossonian says that when he came to work on the afternoon of 30 March 2012, Mr. Zorian was waiting. He said "let's go for a walk". They went to Linda's and sat at a table. Just the two of them. Mr. Zorian told Mr. Tossonian that earlier in the day he had given instructions for Marina Petrosian to be fired because he had found out that she was looking for other employment. Mr. Zorian asked him how come he was encouraging other people at the company to look for a job. He told Mr. Tossonian that everyone knew that he was looking for a job and that while it was his right to look for a job if he wanted to, he should not be talking to other employees about it. Mr. Tossonian says that Mr. Zorian was red-faced and angry. Mr. Zorian said that he knew that Mr. Tossonian had been speaking to another jeweller. Mr. Tossonian claims that he said "it was just a conversation, it was nothing". But Mr. Zorian was outraged. He reminded Mr. Tossonian that he had brought him from Vancouver and paid him a $10,000 moving allowance. He then stood up and swore at Mr. Tossonian in English, Armenian and Arabic. Following which he left.

[33] Mr. Tossonian says that he was shocked. When he realised that Mr. Zorian was not coming back, he, too, left the restaurant and returned to the store. Ms. Nahabedian was there. He asked her "what did you tell Sako?" She became defensive and denied having told Mr. Zorian about Mr. Tossonian's discussion with Raffi.

[34] Mr Tossonian then left the store and went to look for Mr. Zorian. While he was doing that, he called his friend Kegham Bayrakdarian. He told him what had happened. He then saw Mr. Zorian entering the store. Mr. Tossonian ended his conversation with Mr. Bayrakdarian and went back to the store. He went into Mr. Zorian's office and asked if he could speak to him. Mr. Zorian grabbed his coat and the two men walked outside.

[35] Mr. Tossonian asked Mr. Zorian where he had gone and why had he left. Mr. Zorian responded "this is not acceptable". Mr. Zorian said that he didn't trust Mr. Tossonian anymore. Mr. Tossonian claims that he said "This is BS. I'm going back to work. I'm going to start my shift" to which Mr. Zorian responded "not a foot in my store. I don't trust you in my store". Mr. Tossonian says that three times he motioned to walk back to the store. He says that Mr. Zorian would not let him return to the store. He asked Mr. Zorian "You don't want me to go in your store?" Mr. Tossonian says that at that point he realised that Mr. Zorian was letting him go and he asked him "are you letting me go?" He says that Mr. Zorian nodded. Mr. Tossonian said "Why are you doing this? I have family. I have a mortgage. What is the reason? Why are you doing this to me?" Mr Zorian yelled "I don't trust you any more in the store. It's not acceptable. I brought you here from Vancouver and you're doing this to me". Mr. Tossonian says he was in shock. Mr Zorian asked Mr. Tossonian to hand him his keys. Mr. Tossonian complied. He says that Mr. Zorian said "good luck to you" and added that if Mr. Tossonian wanted a reference from him, he would give him one. Mr. Zorian then left.

[36] After these events, Mr. Tossonian says that he once again called Kegham Bayrakdarian. He asked him what Mr. Zorian could have meant by the words "I don't want you in my store". He says that Mr. Bayrakdarian told him that it meant that Mr. Zorian didn't want him anymore.

[37] In the days that followed, Mr Tossonian had discussions with both Father (now Bishop) Parrikian and Sako Krikorian, both of whom were called by the defendant to testify at trial. They both offered to mediate with Mr. Zorian. Mr. Tossonian told them that he could not do that.

[38] When Mr. Tossonian received his Record of Employment from the defendant, the letter ‘E’ appeared in box 16 of the document, indicating that Mr. Tossonian had quit. This caused a delay in Mr. Tossonian's receipt of employment insurance benefits (Employment Insurance was ultimately satisfied that Mr. Tossonian had, in fact, not quit). He claims that his frame of mind was such that he was not ready to look for other work until the end of May 2012. He had a number of interviews but no offers. Then, on 9 July 2012, he had an interview with Knar Jewellers. The same day, Mr Tossonian called his former employer at Rodeo in Vancouver. He was told that there was a job for him there if he wanted to return. He then had a second interview with Knar on 13 July 2012. He was told that Knar wanted him to take an online skills test. By this time, not being able to afford the mortgage payments, Mr Tossonian had sold his condominium. Without a job offer in hand from Knar, and fearing that it might take weeks before he had such an offer, if at all, Mr. Tossonian says that he decided over the weekend of 14/15 July to return to Vancouver. He started back at Rodeo on 9 August 2012, earning $4,500 per month.

[39] During the course of the trial, Mr. Bayrakdarian gave evidence twice. He was initially called by the plaintiff for the purposes of corroborating the telephone conversations that had taken place between him and the plaintiff on 30 March 2012. However, after having given evidence the first time, Mr. Bayrakdarian, who, as an RCMP officer has a fair amount of experience of giving evidence in court, said he became increasingly uncomfortable about the fact that he had not been asked questions about his knowledge of Mr. Tossonian's dealings with Raffi Jewellers. During the eight week period that elapsed between the first five days and the last two days of the trial, Mr. Bayrakdarian contacted Mr. Zorian. As a result, Mr. Bayrakdarian returned to court, pursuant to a witness summons served on him by the defendant, to testify about a discussion which he had with the plaintiff a few weeks before his employment with the defendant ended.

[40] Mr. Bayrakdarian says that the plaintiff was ecstatic because he had had a very good job offer from Raffi Jewellers. Raffi would be opening a new store at the Yorkdale mall. Mr. Tossonian told Mr. Bayrakdarian that the job meant more money, was more promising, had more opportunity for advancement and was with big watch names such as Rolex. Mr. Bayrakdarian says that he said to Mr. Tossonian, "don't you have an agreement with Mr. Zorian?" He replied that he did, but that asked that now he had this better offer from the Garabedians, what should he do? Mr. Bayrakdarian told Mr. Tossonian that it was a decision that he had to make. He asked Mr. Tossonian if he was concerned about risk of being instantly fired if he gave notice to Mr. Zorian, Mr. Tossonian responded that the Garabedians had told him that if Mr. Zorian dismissed Mr. Tossonian when Mr. Tossonian gave Mr. Zorian notice, they would pay him a salary until the Yorkdale Raffi Jewellers store opened. Mr. Tossonian told Mr. Bayrakdarian that the Garabedians had guaranteed that to him.

[41] Mr. Bayrakdarian said that he had been told by Mr. Tossonian that after his employment with the defendant had ended, he contacted the Garabedians, looking for them to live up to their guarantee to pay him until the Yorkdale store opened. Apparently, the Garabedians started to give Mr. Tossonian excuses about why they could not pay him. They told him that because one of the brothers was about to get married they were under financial stress and that they could not afford to pay Mr. Tossonian. However, Mr. Tossonian had worked at the Cambridge Raffi Jewellers store a few times following his departure from the defendant and had been paid for so doing.

[42] The plaintiff did not give reply evidence to refute what Mr. Bayrakdarian said during his second appearance in the witness box.

[43] Mr. Zorian's account of what happened on 30 March 2012 is quite different. Earlier in the month he had heard from his sister that there were rumours that some of the defendant's employees were looking for other jobs. He spoke to two of his key employees in Richmond Hill, both of whom assured him that they were not planning to leave, and then spoke to Anna Nahabedian. She, too, denied that she was looking for other work. He asked if she knew who was looking. She told him that Mr. Tossonian was negotiating with Raffi Jewellers. It was during this conversation that Mr. Zorian asked Ms/ Nahabedian to call Marina Petrosian and tell her not to come back to work. He said that his reason for doing so was not because Ms. Petrosian was looking for other work, but because a couple of her paycheques had bounced. She had apparently mentioned this to other people. Mr. Zorian said he was concerned that if his suppliers found out that he had bounced cheques it might affect his credit.

[44] According to Mr. Zorian, he did not feel betrayed upon learning that Mr. Tossonian was speaking with one of his competitors. He denies that he was angry. He said "it's business". He had a meeting already planned for 2 p.m. with Mike Sinainos to discuss marketing. They had lunch together at Linda Restaurant. At about 2:50 p.m., Mr. Zorian says that he went to the store where he saw Mr. Tossonian and asked him to return with him to the restaurant. Both Mr. Zorian and Mr Sinainos, who gave evidence at trial, say that Mr. Sinainos was present at the discussion which then took place at the restaurant involving Mr. Zorian and the plaintiff. Mr. Zorian did not see anything wrong with Mr. Sinainos being present for the discussion of a private employment related matter. According to Mr. Zorian, it was supposed to be a casual conversation.

[45] Mr. Zorian says that he told Mr. Tossonian that it was his "hundred percent right to look for another job". But he asked Mr. Tossonian why he was encouraging other employees to look for a job. He asked whether he had ever had mistreated Mr. Tossonian, to which Mr. Tossonian said that Mr. Zorian had treated him very well. He asked Mr. Tossonian why he had not said something about looking for another job. Mr. Tossonian responded that there was nothing set yet, but acknowledged that he should have come to Mr. Zorian. After a brief discussion about what should happen next, Mr. Zorian says that Mr. Tossonian stood up and said "you know what? It looks like you don't trust me anymore". Mr. Zorian says that he responded "no I don't, Razmig, I don't trust you". At this point, Mr. Zorian says that Mr. Tossonian stood up, pulled out his keys to the store, gave them to Mr. Zorian and left. Mr. Zorian said that after this he finished his business with Mr. Sinainos and then went back to the store. After he had returned to the store, he saw Mr. Tossonian approaching. He buzzed him in. He thought he was coming to his senses and coming back to work. Mr. Tossonian asked if he could speak to Mr. Zorian. They got up and went outside and talked on the sidewalk. Mr. Tossonian told Mr. Zorian that he was very capable of getting another job and that he was going back to write his resume. He asked Mr. Zorian if he would provide him with a reference. Mr. Zorian agreed to do so.

[46] Mr Zorian denies that there was any bad language, raised voices or that he told Mr. Tossonian not to step a foot in his store.

[47] Mr. Zorian says that when Mr. Tossonian did not return to work, he gave instructions for a Record of Employment to be sent to him. He said that he wished that the plaintiff would have come back or attended the store, but he did not. He says that he was prepared to take the plaintiff back.

Discussion and Analysis

[48] There were aspects of the accounts given by both Mr. Tossonian and Mr. Zorian which I do not accept.

[49] For example, Mr. Tossonian downplayed the nature of his discussions with Raffi Jewellers. Yet the uncontradicted evidence of Mr. Bayrakdarian is that by 30 March 2012, Mr. Tossonian thought he had a firm job offer from Raffi Jewellers with a promise from them to pay him a salary in the event that he was summarily dismissed by the defendant.

[50] Similarly, despite the evidence of Mr. Tossonian that the insults hurled at him by Mr. Zorian prevented him from accepting the offers from Father Parrikian and Sako Krikorian to mediate a reconciliation with the defendant, the reality, it turns out, is that Mr. Tossonian thought he had another job. As a result, he had no motivation to repair the relationship with Mr. Zorian.

[51] Mr. Zorian sought to bolster his version of what happened in the Linda Restaurant on 30 March by calling as a witness Mike Sinainos, whose evidence was that he witnessed the conversation between Mr. Tossonian and Mr. Zorian in which Mr. Tossonian quit. However, the evidence of Mr. Bayrakdarian was that he spoke with Mr. Tossonian on two occasions that day and that the gist of those conversations was consistent with Mr. Tossonian's version of events. Ironically, the defendant asks me to accept Mr. Bayrakdarian's evidence with respect to Mr. Tossonian's disclosures about Raffi Jewellers (which I do), but to discard his evidence to the extent that it is inconsistent with what Mr. Zorian or Mr. Sinainos say about the events of 30 March.

[52] A number of witnesses said, or implied, that Mr. Zorian has a temper and this, coupled with my observations of the demeanour of both principal protagonists and my acceptance of the evidence of Mr. Bayrakdarian, persuades me that Mr. Tossonian's account of what happened on 30 March is to be preferred over that of Mr. Zorian.

[53] That is not to say, however, that I prefer the evidence of Mr Tossonian whenever it conflicts with that of Mr. Zorian.

[54] Although Mr. Zorian denies that he was angry when he learned that Mr. Tossonian was looking for another job, any employer who had done what Mr. Zorian had done for Mr. Tossonian would feel disappointed. I find that within months of coming to Toronto to work for the defendant, the plaintiff was ready to take a job with one of the defendant's competitors. Despite the plaintiff's acknowledgement that he was (up until 30 March 2012) very well treated by the defendant, and notwithstanding the generosity of Mr. Zorian towards him, the plaintiff showed a disappointing degree of loyalty and appreciation.

[55] Indeed, I have formed the impression that Mr. Tossonian was capable of being manipulative and that he took advantage of Mr. Zorian's sometimes flamboyant generosity and his lack of attention to detail. It does appear that Mr. Tossonian had qualities which caused people to be generous to him. The defendant’s payment to Mr. Tossonian of a moving allowance of $10,000, the personal gifts and hospitality of Mr. Zorian towards Mr. Tossonian and his family and the agreement of Mr. Zorian to pay Mr. Tossonian $250 in cash for the sixth day of work undertaken by Mr. Tossonian each week (something he had never done previously for an employee) are all examples. Mr. Tossonian had that effect not only on Mr. Zorian but, also, on Mr. Bayrakdarian, who lent the plaintiff over $40,000 to assist him with renovations to his condominium and, then, to help him overcome financial hardship arising from the termination of his employment with the defendant.

[56] Having made these observations, I turn to the two main issues, namely whether the plaintiff had a five-year fixed term contract with the defendant and whether he was dismissed or resigned from his employment.

The Term of the Contract

[57] If, as Mr. Tossonian testified at trial, the existence of a guaranteed five-year fixed term contract was an essential ingredient of his agreement to move from Vancouver to Toronto to work for the defendant, he would have said so in writing. Instead, when he received Mr. Zorian's email of 20 July 2011, which made no reference to the five-year guarantee, he responded (he says) orally and put nothing in writing, because he trusted Mr. Zorian. I find the plaintiff’s evidence in this regard unconvincing.

[58] In my view, the terms of the plaintiff’s employment were agreed orally on 15 July 2011 and confirmed in writing by Mr. Zorian on 20 July 2011. The subsequent documents created by Mr. Tossonian which make reference to the five-year term were created primarily for the purposes of helping Mr. Tossonian get a mortgage. While, admittedly, Mr Zorian signed these documents, I accept his evidence that both documents were created to assist the plaintiff's efforts to obtain a mortgage, rather than to memorialise the terms of the plaintiff's employment. The same can be said of Mr. Zorian telling a representative of the mortgage lender who he spoke to on the phone that he was "stuck with [Mr. Tossonian] for five years".

[59] Mr. Tossonian’s assertion that he had a five-year fixed term contract is, in my judgment, opportunistic and seeks to take advantage of Mr. Zorian's well-intentioned, but misguided efforts to support his employee by making inflated representations about the duration of Mr. Tossonian's employment contract so as to help him secure mortgage financing. The mindset of Mr. Tossonian is revealed by the evidence of Ms. Nahabedian, which, in this regard, I accept, that Mr. Tossonian felt he could not be fired because of the five-year contract which he claimed to have. He seemed to believe that, as a result he effectively had a licence to pursue other employment and, quite possibly, encourage some of his co-workers to do likewise, without fear that by doing so he might bring about his own dismissal.

[60] From a legal standpoint, there is ample evidence that the offer conveyed orally, and confirmed in writing by Mr. Zorian's 20 July 2011 email, was accepted by Mr. Tossonian. As noted by Prof. Fridman (G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011) at 47:

Whether or not there has been an acceptance depends upon whether the offeree has so conducted himself that a reasonable man would believe that he has accepted, or is accepting, the offer in question, at least as long as the offeror has acted on such belief. The generally adopted theory of offer and acceptance is that the parties' behaviour must be viewed objectively, in terms of how the reasonable man, if he were a bystander, would describe the effect of what he had seen or heard.

[61] Prof Fridman goes on to note that an offer or an acceptance may contemplate something more by way of formalisation before a binding contract is to come into existence. That is not the case here. Despite the evidence of Mr. Tossonian that Mr. Zorian said a more formal contract of employment could be drawn up later, the actions of both parties clearly evidence their belief in the existence of a binding agreement long before the creation of the two documents drawn up by Mr. Tossonian in September or October 2012. Prof Friedman in his text makes reference to Parker J.'s decision in Von Hatzfeldt-Wildenburg v. Alexander, [1912] 1 Ch. 284 (Ch.D) at 288-289:

… if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognise a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored.

[62] Even if I were to accept Mr. Tossonian's evidence that on 15 July or in a subsequent telephone conversation, Mr. Zorian agreed to a five-year fixed term contract, Mr. Tossonian's failure to confirm in any written form what he admitted was an "essential" term before he took up his duties, satisfies me that he was prepared to proceed without a "guarantee". The following statement by Blackburn J in Smith v. Hughes (1871), L.R. 6 Q.B. 597, quoted by Prof Waddams (S.M. Waddams, The Law of Contracts, 6th ed. (Toronto: Canada Law Book, 2010) at 105) is apposite in this regard:

If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man the thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.

[63] Furthermore, as this court noted in Rejdak v. The Fight Network Inc. (2008), 2008 37909 (ON SC), 67 C.C.E.L. (3d) 309 (ON SC) at paras 59-60, there will be circumstances in which a written employment agreement, without fresh consideration, does not supersede an earlier oral agreement of employment which the parties entered into.

[64] In the present case, I have found that there was an oral agreement of employment which the plaintiff accepted orally on 15 July 2011. It was confirmed by Mr. Zorian's email of 20 July 2011. A five-year fixed term was not part of that agreement. The actions of the parties do not support a conclusion that there was any variation to the terms of the original agreement prior to the plaintiff taking up his duties. There is no evidence of any further consideration for the subsequent written terms relied upon by the plaintiff, specifically, the five year fixed term.

[65] I would add that whatever Mr. Tossonian's abilities as a salesman of fine watches and other jewellery, it is improbable that there was ever a mutual intention to evolve him into the ranks of professional athletes, movie stars or recording artists whose contracts of employment are often for fixed terms.

The Termination of the Plaintiff's Employment

[66] I have already indicated that I prefer Mr. Tossonian's account of the events of 30 March 2012 to Mr. Zorian's.

[67] In my view, Mr. Zorian, with some justification, was angered by Mr. Tossonian's apparent disloyalty. He lost his temper with Mr. Tossonian and fired him. I found his efforts, during the course of his testimony, to present his behaviour on 30 March 2012 as calm and businesslike, to be unconvincing. It is regrettable that he enlisted Mr. Sinainos as part of his effort to persuade the court that Mr. Tossonian had voluntary surrendered his employment.

Damages

[68] Based upon his assertion that he had a five-year fixed term contract, the plaintiff submits that he should receive damages of $174,382.73. This figure represents what he projects would have been his earnings from the defendant for the period 1 April 2012 – 29 August 2016 (or four years, four months and 28 days) less his actual and projected earnings during the same period.

[69] While I accept that this may be a valid approach to the calculation of the damages he would have been entitled to if he had a five-year fixed term contract, having found that he did not, he is restricted to damages in lieu of reasonable notice of his termination, which the defendant failed to provide.

[70] Reasonable notice periods are decided with reference to each particular case, having regard to character of the employment, length of employee's service to the company, employee’s age, and availability of alternative employment given employee's training, qualifications, and training: Bardal v. Globe & Mail Ltd., 1960 294 (ON SC), [1960] O.W.N. 253 (H.C.).

[71] In the present case, despite the relatively short term of the plaintiff's employment by the defendant, the fact is that he did move from Vancouver to Toronto. He was not lured to Toronto by the defendant, as the plaintiff sought to argue. But it was, nevertheless, a significant move for the plaintiff and his family to make, and the premature and summary circumstances of his dismissal negatively impacted his ability to obtain replacement employment.

[72] I conclude that in the circumstances, the plaintiff should have been given two months notice of the termination of his employment.

[73] The plaintiff is under an obligation to mitigate his loss. The defendant’s evidence is that he would have taken the plaintiff back if the plaintiff had asked him to. Unfortunately, the defendant never told the plaintiff this. Had he done so, I would have regarded the plaintiff’s failure to at least talk things through with the defendant as supportive of an argument of a failure to mitigate his loss. In the circumstances, however, I do not find it unreasonable that the plaintiff did not obtain other employment during the two months following his termination.

[74] Based upon the submission made by counsel in closing argument that the plaintiff’s annual salary at the time of his dismissal was $81,120, I would therefore assess his damages at $13,520 plus applicable pre-judgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43. In so concluding, I have not taken into account his annual "bonus" of an additional $12,000, paid in weekly cash increments of $250, since the evidence was that this income was not declared and I choose not to legitimate what I regard as having been an improper arrangement.

Costs

[75] If the parties are unable to agree on costs, and they can make written submissions. These submissions should be limited to 4 pages in addition to which the party should provide any bills of costs or offers of settlement pursuant to Rule 49 which they wish me to take into account. I also understand that the costs of a security for costs motion brought by the defendant before Master Hawkins have been reserved to me. The plaintiff should deliver his submissions on costs by 16 January 2015. The defendant's costs submissions should be delivered by 23 January 2015.

Graeme Mew J.

Released: 30 December 2014

Corrections made 16 January 2015

Para 16 – last sentence reads: “He started work at the defendants’ Don Mills….”

Para 60 – third line of quote: “offer raw” is replaced by “offeror”.

COURT FILE NO.: CV-12-454589

DATE: 20141230

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RAZMIG TOSSONIAN

Plaintiff

– and –

CYNPHANY DIAMONDS INC. o/a SYMPHONY DIAMONDS

Defendant

REASONS FOR DECISION

Graeme Mew J.

Released: 30 December 2014