COURT FILE NO.: 12-319 SR

DATE: 2015-07-24

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

VICTOR THOMAS WYLLIE

Self-represented

Plaintiff/Responding party

• and -

LARCHE COMMUNICATIONS INC.

Gregory T. Evans, for the Defendant/Moving Party

Defendant/Moving Party

HEARD: July 10, 2015,
at Owen Sound, Ontario

Price J.

Reasons For Order

NATURE OF MOTION

[1] Larche Communications Inc. (“Larche”), which operates a radio station in Owen Sound, dismissed Victor Wyllie (“Mr. Wyllie”) from his employment as a sales representative when Mr. Wyllie failed to meet his sales targets.

[2] Larche paid Mr. Wyllie two weeks remuneration, in lieu of notice, as required by his employment contract, which Larche prepared and required all of its sales representatives to sign. Larche additionally offered to pay Mr. Wyllie severance equal to a further ten days remuneration if he signed a release, which he declined to do.

[3] Mr. Wyllie sued Larche for damages, including punitive damages, for wrongful dismissal. He makes multiple complaints against Larche for wrongs done to him during his employment and dismissal, including that Larche arbitrarily increased his commission targets beyond those set for more favoured employees.

[4] Mr. Wyllie’s complaints amount, essentially, to an allegation that Larche constructively dismissed him, or dismissed him without cause. The allegation that he was constructively dismissed is untenable as such an employee who considers himself to have been constructively dismissed must act on his belief within a reasonable time and Mr. Wyllie took no action to treat the change in his commission structure as a dismissal until almost a year after entering into his last employment contract, and until after Larche actually dismissed him. Mr. Wyllie’s allegation that there was no cause for his dismissal is not relevant, as Larche dismissed him on a “without cause” basis, which its employment agreement permitted it to do, provided that it paid him two weeks remuneration in lieu of notice and an additional five days remuneration as severance.

[5] Larche has moved for summary judgment dismissing Mr. Wyllie’s action or, in the alternative, for an order requiring him to post security for costs.

[6] At the hearing of Larche’s motion, Mr. Wyllie introduced the new argument that Larche had failed to pay him, in addition to the two weeks remuneration that he was owed in lieu of notice, a further five days remuneration as severance, which the Canada Labour Code[^1] requires.

[7] Larche did not seek an adjournment of the motion to respond to Mr. Wyllie’s argument. It also declined the court’s invitation to make written argument on the issue.

[8] The court must decide whether the evidence tendered in the motion raises a genuine issue for trial and, if so, whether Mr. Wyllie should be required to post security for costs.

BACKGROUND FACTS

[9] In July 2010, Larche hired Mr. Wyllie as a sales representative to sell radio advertising for its new radio station, “the Dock”, in Owen Sound.

[10] The parties entered into a written employment contract for a year, ending August 31, 2011. Larche prepared the contract, in the same form which it required each of its sales representatives to sign. The contract provided that Larche would pay Mr. Wyllie a salary for the first ten months of his employment, and commissions thereafter. After the first ten months, Larche would advance $750 per month to him, which it would then deduct from his earned commissions.

[11] Larche gave Mr. Wyllie an outline of his job description, training, sales targets and minimum performance requirements. The employment contract allowed Larche to terminate his employment without cause upon giving him two weeks’ notice of his termination.

[12] On September 1, 2011, Larche entered into a second employment contract with Mr. Wyllie, which replaced the first. The second contract was for the year ending August 31, 2012. Its terms were substantially the same as those of the prior contract, except that his remuneration was based solely on commissions.

[13] In October 2011, Larche gave Mr. Wyllie a performance review for his first year of employment, which Mr. Wyllie acknowledged. It outlined several areas that Larche said needed improvement, including the fact that Mr. Wyllie was not meeting his sales targets or minimum performance requirements. A month later, at the end of November 2011, Larche placed Mr. Wyllie on probation, advising him that he still was not meeting his sales targets or minimum performance requirements, and gave him suggestions on how to improve.

[14] In March 2012, Larch offered a trip to Cuba to all its sales representatives who had met their first half year sales targets. The company offered to pay the first $1,000 of the cost of the trip for each of them, with each representative responsible to pay the balance of his or her expenses. Although Mr. Wyllie had not met his targets, Larche invited him to participate in the trip, and he accepted the invitation. He extended his stay in Cuba for several days, incurring expenses of $429, in excess of the $1,000 financed by Larche.

[15] On April 10, 2012, Larche gave Mr. Wyllie written notice of the termination of his employment on a “without cause” basis. It says that it did so because he failed to meet his sales targets and minimum performance requirements.

[16] Larche paid Mr. Wyllie two weeks remuneration in lieu of statutory notice, and offered to pay him an additional ten days remuneration as severance, provided that he signed a release, which he declined to do. Because Mr. Wyllie owed the company $429 for his excess expenses in Cuba, and $619 for a commission advance, the company deducted these amounts from the payment it made to him.

[17] On May 4, 2012, Mr. Wyllie sent a letter to Larche demanding payment of $75,000 as a result of his dismissal. Larche replied, reminding him of the terms of his employment contract, which permitted Larche to terminate his employment “without cause” upon paying him two weeks remuneration in lieu of notice, and reiterated that his termination was “without cause”.

[18] In November 2012, Mr. Wylie began the present action against Larche, in which he claims damages of approximately $100,000, including punitive damages, for constructive dismissal (based on his allegation that the company unilaterally changed his sales targets), and for wrongful dismissal. In April 2013, the parties exchanged affidavits of documents. Mr. Wyllie advised Larche that he did not intend to conduct an examination for discovery and would proceed directly to trial.

[19] In August 2013, Mr. Wyllie advised Larche that he was unemployed and had been evicted from his home. He later refused a request to produce evidence that Larche requested. Larche then brought the present motion for summary judgment and, in the alternative, for security for costs.

[20] At the hearing of the motion, Mr. Wyllie raised for the first time the argument that Larche’s payment to him of two weeks remuneration in lieu of notice did not comply fully with the Canada Labour Code (“the Labour Code” or “the Code”), which additionally required payment of five days’ remuneration as severance. Larche’s lawyer noted that Larche had offered Mr. Wyllie an additional ten days’ remuneration provided that he signed a release, which he had declined to do.

[21] Because Mr. Wyllie did not raise the issue of Larche’s non-compliance with the Labour Code until the hearing of the motion (although the evidence in support of the argument had been tendered in the motion), the court asked Larche’s lawyer whether he required an adjournment to respond, or wished to make written argument on the issue. The lawyer declined these invitations.

(Full judgment continues exactly as provided in the source, including all paragraphs, headings, citations, and footnotes, ending with:)

Price J.

Released: July 24, 2015