CITATION: Ali v. O-Two Medical Technologies Inc., 2015 ONSC 3932
COURT FILE NO.: CV-09-4189-00
DATE: 2015 06 19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Samir Ali
R. Barrett, for the Plaintiff
Plaintiff
- and -
O-Two Medical Technologies
Defendant
D.A.S. Mills and J.A.N. Corak for the Defendant
HEARD: April 20-24, 2015. Written Submissions completed May 15, 2015
REASONS FOR JUDGMENT
LEMAY J.
[1] In this case, the Court is required to determine whether the parties had a contract to pay the Plaintiff commissions and, if so, in what amount. If there is no contract, then the Court will be required to determine whether the Plaintiff is entitled to compensation on a quantum meruit basis and, if so, in what amount.
[2] Like many contractual interpretation disputes, both sides assert that there was a contract and that its terms were clear. Unfortunately, but unsurprisingly, they have opposing views on what the “clear terms” of the contract actually are. These views were forcefully and capably advanced by their Counsel. I am left to determine whether there is a contract and, if so, what its terms were.
[3] I will set out the relevant background facts. I will then analyze each of the issues that present themselves.
Background Facts
[4] I heard evidence from four witnesses: the Plaintiff, Mr. Samir Ali (“Mr. Ali”), the President of the Defendant, Mr. Joe Lassaline (“Mr. Lassaline”), the former Chief Operating Officer of the Defendant, Mr. Wim Van Voorst (“Mr. Van Voorst”) and the former Controller of the Defendant, Mr. Vivek Sharma (“Mr. Sharma”).
[5] I also received a joint book of documents, and the parties confirmed that the documents contained therein were admitted on consent and were to be taken for the truth of their contents. I received one other exhibit in addition to the joint book of documents. This excellent organization on the part of both counsel was of significant assistance to me.
[6] I have considered all of the evidence, and I have made findings of credibility as necessary in reaching my findings of facts. I have set those out below.
a) The Parties
[7] The Plaintiff, Mr. Ali, is a mechanical engineer of Iraqi heritage, who came to Canada in 1999. His first language is Arabic, and he worked for the Defendant, O-Two Medical Technologies as an engineer and a salesperson from 2002 to 2007.
[8] The Defendant, O-Two Medical Technologies (“O-Two” or “the Defendant”) is a privately held company that manufactures ventilation and resuscitator equipment for sale in both the domestic and foreign markets.
[9] O-Two’s President and majority shareholder is Mr. Lassaline. Other family members have been involved in the business from time to time. Mr. Lassaline’s brother Jerry was the Vice President of Sales for a period of time, and Mr. Lassaline’s daughter Kim was also involved in the business. I will refer to them by their first names when necessary.
b) The Commission Agreement
[10] As noted above, the Plaintiff worked as both an engineer in the operations and manufacturing area and as a salesperson. He was originally hired to work in operations as an engineer. In late 2003, after the Iraqi war, Mr. Ali approached Mr. Lassaline and asked him for the opportunity to try and develop a market for O-Two’s products in Iraq. Mr. Ali was travelling to Iraq to visit his parents (who lived in Baghdad) and he thought he could try and sell O-Two’s products at the same time.
[11] Mr. Lassaline agreed, and Mr. Ali went to Baghdad. Mr. Lassaline testified that he would not have sent someone to Baghdad given the news stories that were emanating from the region at the time. However, he was prepared to allow Mr. Ali to add a business element to a personal trip, as the trip was pre-planned.
[12] At about the same time, an organization called Almazd, which was an Iraqi based company that acted, among other things, as a wholesaler of medical equipment contacted O-Two medical and invited them to attend an exposition of medical equipment being held in Baghdad in February of 2004. It was billed as an opportunity to meet potential customers face-to-face. Mr. Ali testified that he may have been able to make contact with Almazd on his own through contacts that he had in Iraq. I do not have to determine how Almazd came to Mr. Ali’s attention to resolve this dispute.
[13] Mr. Ali attended at this event, which was held in the “green zone” in Baghdad, and required American military escort to enter the area. His samples were inspected by the American Army, and he was not allowed to bring some of them in to the green zone. Mr. Ali testified that he met a number of contacts at this event.
[14] When Mr. Ali returned, he had a discussion of what his commissions would be with Jerry Lassaline, and asked for something in writing setting out these commissions. Jerry provided him with a one page memo that stated the commissions would be a maximum of 4% on disposables and 8% on non-disposables.
[15] Mr. Lassaline testified that he was not entirely happy with this arrangement, and that he and Jerry had a discussion about the commissions. A subsequent memo was then provided to Mr. Ali, that stated “you will be paid 7% comm on all paid for sales excluding Iraq. Iraq sales comm. will be determined on a per project basis.”
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