SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-14-502077

DATE: 20151029

RE: Francois Oudin, Plaintiff/Moving Party

AND:

Le Centre Francophone de Toronto, Inc., Defendant/Responding Party

BEFORE: Sean F. Dunphy J.

COUNSEL:
C. Lamarche, for the Plaintiff/Moving Party
D. Girlando, for the Defendant/Responding Party

HEARD: October 15, 2015

Reasons for Decision

[1] The plaintiff M. Oudin signed an employment agreement providing that his notice of termination of employment would be as provided by the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”). Although his employer provided him with voluntary support in the form of four years of unearned commission payments during a period of declining sales, he now claims that his employment agreement is unenforceable and has brought this motion for summary judgment.

[2] The purpose of contracts is to provide the parties with certainty about their relationship. The task of contractual interpretation is to establish the intention of the parties. The principles of contractual interpretation are objective and forward looking and must not be driven by the subjective desires, however earnest, that hindsight or regret can impart. One does not approach the goal of interpreting a contract freely entered with the pre-determined goal of seeking objections that might be stretched into a basis for avoiding it after the fact.

[3] I have found that termination of employment provisions contained in the employment agreement in this case are valid and enforceable applying ordinary and reasonable rules of construction. There was no intention by the employer in this case to contract out of the minimum standards of the ESA and what technical objections are now raised represent either strained interpretations or are easily and reasonably cured using the curative language contained in the employment agreement itself. The plaintiff’s motion for judgment is accordingly dismissed. My reasons and more detailed findings follow.

Overview of Facts

[4] There were no material facts in dispute on this motion for summary judgment. The parties have agreed to reserve to another day the issue of mitigation (to the extent material) and any questions regarding proposed amendments to the Statement of Claim to assert a claim for unpaid commissions in the period prior to the termination of the plaintiff’s employment.

[5] There is agreement between the parties that the issues before the court on this motion are appropriate for summary judgment. Having heard the motion and considered the evidence, I agree. Each of the issues referenced below can be fairly determined without requiring a trial having regard to the provisions of Rule 20.04(2.1) of the Rules of Civil Procedure and I have proceeded to do so.

[6] This was a bilingual hearing with evidence and argument having been presented in both French and English. The parties have requested that I deliver my reasons in English in order to expedite its release. All translations of French documents into English below are my own.

[7] The Centre hired the plaintiff M. Francois Oudin on or about December 7, 2000. There was initially some confusion regarding M. Oudin’s start date. His memory was hazy, but he seemed to recall that it was in our about 1999. The defendant, whose records were incomplete as a result of a 2004 merger, believed that he had been hired later in 2001. After further research by both sides, it was agreed that December 7, 2000 appears to be the start date as confirmed by a pay stub located. This conclusion appears probable given the November 2000 job posting seeking a candidate to fill the post that M. Oudin occupied that was also located.

[8] M. Oudin’s job title was that of project manager (“chargé de projet”) of the “Annuaire des ressources francophones de Toronto” (the “Directory”). The Directory, published in May of each year, was a glossy magazine containing advertisements and a listing of various cultural, educational, professional and business resources available to serve members of the francophone community of Toronto. In September 2013, the Centre decided that it would no longer support the project and discontinued its publication. M. Oudin’s employment was terminated as a result. This litigation arises from that decision.

[9] As project manager, M. Oudin was primarily responsible for arranging for the production of the Directory and, most importantly, for the sale and placement of advertisements in it. He supervised a production budget which, apart from his own remuneration, was in the range of about $40,000 per year. In the last few years, M. Oudin reported to Mme. Beaudry.

[10] The defendant is a non-profit organization for whom the Directory was intended to be a self-sustaining publication. M. Oudin supervised no employees directly, although he did on occasion supervise the work of interns or volunteers who were tasked to assist him from time to time. Whether he took some part in management meetings of the Centre in his early years, it is undisputed that he attended only one or two of the regular management meetings held by the Centre in his last few years of employment.

[11] The Directory was also produced in part with the administrative assistance of employees of the Centre who operated independently of M. Oudin. These included personnel in charge of billings, collections, bad debts, accounting and similar administrative matters. The budget expenses of the Directory included an overhead allocation for those employees.

[12] Initially, M. Oudin was a contract employee working under a series of one year contracts, each terminating with the publication of the Directory in May. Not all of the contracts have survived, but examples from June 1, 2001, 2002 and 2004 have survived. Under these contracts, M. Oudin was paid a base salary of $28,000 plus a commission of 20% of the value of sales of advertisements placed by him, subject to an advance on commissions of $20,000 per year. In the 2004-2005 contracts, the advance on commissions had been increased to $24,000 per year without change to his base.

[13] The 2007 edition represented a banner year for the Directory. Advertising sales exceeded $200,000. The parties decided for the first time to enter into an indefinite term formal employment agreement (“entente d’embauche”) as of June 15, 2007. Under this new employment agreement, M. Oudin was to receive a significantly increased guaranteed minimum (now $50,000 per year instead of $28,000) as well as a significant increase in the scale of commissions that he was eligible to receive. In lieu of receiving 20% of all sales by him, he received 50% of the value of sales between $150,000 and $175,000, 55% of the value of sales between $175,000 and $200,000 and 65% of the value of sales beyond that threshold (s. 6.1).

[14] In simple terms, his downside was protected with a much higher base salary and he was to be rewarded with a significantly higher upside should his sales exceed $175,000. There is no doubt that some of these contractual changes were to the clear advantage of M. Oudin, particularly given the stellar results of the prior year with sales topping $200,000. However, not all changes necessarily operated to his advantage. With an indefinite term contract, his employer had also required him to accept provisions that would limit his right to notice of termination of employment without cause to fifteen days or the notice prescribed by the ESA (or the equivalent in money). The contract was something of a template form and the parties agree that, at the time it was signed, M. Oudin had already accrued minimum severance entitlements exceeding the 15 days provided in the employment agreement.

[15] There was some disagreement between the parties on the sales figures for the Directory. The disagreement appears to stem from timing difference between fiscal and publication years although the parties did not seek to reconcile their figures. Be that as it may, M. Oudin’s own figures for sales revenues (per edition year of the Directory) were as follows:

2007 $204,388 2011 $154,515
2008 $194,964 2012 $114,803 (excl. internal sales)
2009 $183,744 2013 $133,267 (incl. $38,050 internal sales)
2010 $168,384

[16] This evidence makes clear that there was a steady and inexorable decline in the sales volumes of the Directory in the years following the signing of the employment agreement in 2007, particularly after the economic crisis of 2008-2009. Mr. Oudin was well aware of this and it was a cause of concern to him since he appreciated that, unlike other employees, his project “depended on results” and was “very precarious”. These gross sales figures masked the fact that an increasing portion of sales were not being effected by M. Oudin at all but were instead internal “sales” of advertisements placed by the Centre in its own publication at the direction of M. Oudin’s supervisor, Mme. Beaudry.

[17] The parties disagree as to whether M. Oudin was entitled to commission on such internal “sales” that he took no part in generating. M. Oudin appears to have raised no protest regarding the calculation of his commission excluding such sales at the time although he does so now. It is clear that the earlier annual contracts only provided for commissions payable to M. Oudin on sales by him. Under the new contract entered into in 2007, the language changed somewhat, providing that “the employee will have the right to commission on sales according to the following table….50% of the value of sales …”[translation]. It does not specify whether sales “by him” is intended or “all sales”, although the evidence from the Centre was that the former is what was in fact used.

[18] In point of fact, the dispute is not material. Both parties agree that from 2009 onwards, the Centre decided not to require to M. Oudin to reimburse $20,000 in advances made on unearned commissions as his employment agreement otherwise required. Sales would have to have been in excess of $188,636 for M. Oudin to have earned as much as $20,000 in commissions by the terms of his employment agreement and this threshold was never again achieved regardless of which of the disputed versions of the commission formula is employed.

[19] Absent this voluntary decision of the Centre not to require repayment of unearned commissions, M. Oudin’s remuneration would have been lower each and every year – the only dispute between the parties is how much lower (depending upon whether internal sales, discounts on sales and bad debts were included). The Centre is not asking M. Oudin to return the excess commissions paid at this point and I accordingly see little reason to wade into the dispute about internal sales and his right to commissions on them. If the parties have a dispute about the period prior to 2009 that is not statute barred, nothing in this decision precludes them from pursuing it.

[20] The Centre’s view is that the practice amounted to a voluntary payment of up to $20,000 per year over almost four years. M. Oudin claims the amount would be somewhat lower if commissions were calculated in the manner he now claims ought to have been used (including internal sales and not adjusting for bad debts or discounts). He was at all events paid significantly more over the last few years than his contract required – the cumulative sums involved approaching if not exceeding the equivalent of a year’s salary. This voluntary practice was maintained by the Centre up until the termination of M. Oudin’s employment in 2013. M. Oudin was aware that this discretion was being exercised in his favour and wrote to express his thanks in at least one series of emails that have been produced (from 2010).

[21] The Centre’s fiscal year ran from April 1 to March 31 of each year. The Centre’s own figures show that sales net of discounts, bad debts and internal sales were $148,229 in 2009, declining to $104,194 in 2013 with a cumulative deficit attributed to the Directory of $218,996 between 2009 and 2013. Although those financial results also account for overhead (which may or may not have been reduced following cancellation of the Directory), I am well satisfied that the Directory was in fact losing money on a cumulative basis. These losses were not insignificant for a non-profit organization such as the Centre, particularly where the expectation of all parties (i.e. including M. Oudin) was that the Directory was intended to be a self-financing project.

[22] The Centre decided to terminate production of the Directory and with it M. Oudin’s position. On September 25, 2013, the Centre provided M. Oudin with a letter terminating his employment with immediate effect. The letter advised him that the decision to eliminate his position was tied “exclusively to the fact that the Directory in its present format does not bring in the revenues required to continue to pay your salary and self-finance the project” [translation].

[23] As of the date of termination of his employment, M. Oudin had been working 12.67 years for the Centre. He received a total of 21 weeks of severance and termination pay (originally 20.25 and corrected later to 21 weeks when his true start date was ascertained). In addition, he was offered an additional 12 weeks equivalent salary and an extension of benefits coverage to March 31, 2014 if he would sign a standard form release by October 2, 2013.

[24] M. Oudin did not sign the release by October 2, 2013 and the offer of additional compensation lapsed. Nevertheless, the Centre voluntarily maintained his benefits until March 31, 2014.

Issues

[25] The following issues are raised by the parties on this motion:

a. Was the employment agreement repudiated by the defendant?

b. Is section 9.2 of the employment agreement void because contrary to the Employment Standards Act?

c. Is section 9.2 of the employment agreement too ambiguous to displace the presumption in favour of reasonable notice from Machtinger v. HOJ Industries Ltd., 1992 102 (SCC), [1992] 1 S.C.R. 986?

d. In the absence of section 9.2 of the employment agreement, what is the period of reasonable notice to which the plaintiff is entitled at common law?

Analysis and Discussion

(a) Repudiation of Employment Agreement

[26] The plaintiff takes the position that the Centre has repudiated the employment agreement by its conduct and is therefore disentitled to claim the benefit of the provisions of s. 9.2 thereof to reduce the notice it must provide to the plaintiff.

[27] The test for repudiation of contracts in general and employment agreements in particular is neither new nor particularly controversial. Parties will be held to have repudiated an employment agreement if by their conduct they have demonstrated their “clear intentions to no longer be bound” by the terms of the employment agreement (per Gillese J.A. in Roden v. The Toronto Humane Society, 2005 33578 (ON CA) at para. 50). In my view, the conduct of the defendant cited by the plaintiff is a long, long way from meeting this standard of repudiation of an employment contract.

[28] The plaintiff cites two alleged actions of the defendant as constituting repudiation.

[29] Firstly, it is said that the respondent failed to pay all of the ESA termination payments prescribed after having terminated the employment of the plaintiff. The failure amounted to less than a week’s pay out of 21 weeks actually paid. It arose from an honest mistake as to the actual start date of the plaintiff’s employment. When the mistake was discovered and verified, the defendant corrected its error and paid the extra amount due. This cannot reasonably be construed as anything but an honest and relatively minor error as to a single fact and does not come close to the standard of a deliberate and clear repudiation of an entire legal relationship.

[30] The second instance alleged to amount to repudiation was effectively withdrawn in the course of oral argument. The plaintiff advised that it is in the process of seeking to amend its claim to add a claim for allegedly missing commission payments in the years prior to termination. While I was not asked to make a determination of his entitlement, if any, the plaintiff insisted that the fact of alleged underpayment of commissions for so many years was tantamount to repudiation.

[31] I have previously described the dispute that has arisen between the parties as to the inputs that go into the calculation of “commission on sales” and “value of sales”. I find it unnecessary to rule on the merits of those issues here. Two comments are sufficient to dispose of the argument.

[32] Firstly, even if the plaintiff’s position on the means of calculating commission were upheld, there is not a hint of evidence to suggest that the defendant’s position on the question represented anything beyond a good faith if, (in the plaintiff’s view) mistaken view of the true interpretation of the employment agreement. A mere mistake of law cannot be construed as an expression of a clear intention not to be bound by the agreement. Contractual disputes between parties are commonplace – they do not rise to the level of repudiation by that reason alone.

[33] Secondly, on the facts here present, the plaintiff’s position simply does not hold water. From 2009 at least, he received commissions well in excess of what he was entitled to receive under his contract based on his own figures. Portraying this employer’s conduct as egregious to the point of repudiation is simply not reasonable.

[34] The claim for repudiation of the employment agreement is entirely without merit and I reject it.

(b) Whether void for breach of ESA

[35] The employment agreement of June 15, 2007 contains the following provisions that are material to understanding the plaintiff’s argument that it should be considered to be void for purposes of determining the notice period to which the plaintiff is entitled:

Original

Translation

s. 4 ANNULATION DE L’ENTENTE

Pendant la période d’emploi, la CFT peut mettre fin à l’emploi de l’employé(e) sans préavis ou indemnité salariale pout tout incident sérieux (voir Politique sur le mesures disciplinaires RH-8020), négligence grossière ou incapacité continue laquelle serait considérée permanente, incompétence dans l’exercice de ses fonctions; ou non-respect to l’article 10 de la présente entente (confidentialité et exclusivité).

s. 4 TERMINATION OF AGREEMENT

During the period of employment, CFT may terminate the employment of the employee without notice or payment of indemnity for all serious incidents (see Policy on disciplinary measures RH-8020), gross negligence or continuing incapacity considered permanent, incompetence in the exercise of his functions or breach of article 10 of this agreement (confidentiality and exclusivity).

s. 9 CESSATION D’EMPLOI

9.2 Congédiement at résiliation contractuelle : La présente entente peut être révoquée sans préavis ni compensation par le CFT pour les raisons mentionnées à l’article 4 de la présente entente. Le CFT peut également résilier la présente entente pour tout autre motif en donnant à l’employé(e) un préavis de quinze (15) jours ou le préavis minimum prescrit par la Loi sur les normes d’emploi, ou en lui versant une indemnité salariale égale au salaire qu’elle aurait droit de recevoir pendant la période de préavis (après déduction et/ou retenues à la sources), selon l’entière discrétion du CFT.

s. 9 Termination of Employment

s. 9.2 Termination and contractual rescission: This agreement may be terminated without notice or compensation by CFT for the reasons mentioned in article 4 of this agreement. The CFT may also terminate this agreement for any other reason by giving the employee 15 days notice or the minimum prescribed by the Employment Standards Act or by paying an amount of salary equal to the salary the employee would have had the right to receive during the notice period (after deduction and/or withholding at source), in the entire discretion of CFT.

12. Renonciation et Divisibilité

12.2 Si n’importe laquelle des dispositions de la présente entente est invalide ou inexécutable en vertu de toute loi, règlement, ordre ou de toute ordonnance ou autre principe de droit, cette modalité sera alors répute modifiée ou annulée, mais uniquement dans la mesure nécessaire pour se conformer au statut, au règlement, à l’ordre, a l’ordonnance ou au principe et les autres dispositions de la présente entente resteront en vigueur.

12. Waiver and Severability

12.2 If any of the provisions of the present agreement is invalid or unable to be performed by virtue of any law, regulation, order or any other requirement or other principle of law, this modality shall in such case be considered to be modified or nullified, but only to the extent necessary to comply with the statute, regulation, order, legal requirement or principle and the other dispositions of the present agreement shall remain in force.

[36] The plaintiff argues that s. 4 of the employment agreement prescribes a result that would be contrary to the ESA in that it purports to authorize termination without notice by reason of permanent disability. While that is not what actually happened here, the Centre admits that it failed to revise its form of contract to account for this change in the law in 2005 (O.Reg. 549/05 removed the exclusion from s. 55 of the Act for employment contracts frustrated by reason of an illness or injury suffered by the employee). The Centre concedes that it cannot contract out of the minimum standards prescribed by the ESA and that, at least in the instance of an employee with a permanent disability, s. 4 of the employment agreement would have that effect. The issue is what consequence flows from this.

[37] The plaintiff’s position is that all of s. 4 and all of s. 9.2 of the employment agreement must fail in consequence. Subsection 5(1) of the ESA renders void any provision in a contract that has the effect of contracting out of the minimum provisions of the Act. The plaintiff argues that it is not possible to strike just one sub-clause from section 4 – the entire provision must be considered void if any part of it prescribes a result that would potentially run contrary to the ESA.

[38] The plaintiff argues that since section 9.2 of the employment agreement cross-references s. 4, it too is infected with the same infirmity and must also be disregarded as void. Section 9.2 specifies outcomes for all forms of termination of employment – those specified for the reasons listed in s. 4 and those terminated for “any other reason”. Without reference to section 4, it would be impossible to know what “other reason” in s. 9(2) refers to and the clause would accordingly be incomplete. Finally, the plaintiff argues that the severance provisions in s. 12.2 of the employment agreement cannot save these provisions which are otherwise void.

[39] The plaintiff relies upon the decision of the Supreme Court of Canada in Machtinger (supra). In Machtinger (supra), whether through deliberate action or accidental slip, it was common ground that provisions of the contract had the effect of providing a lower standard than that prescribed by the ESA. The issue in Machtinger (supra) was whether the court could have regard to the admittedly invalid termination provisions of the employment contract in determining what level of reasonable notice should be implied in construing the contract. Iacobucci J. delivered the judgment of the majority and held that if the clause is void for one purpose, it cannot be looked at for another where there was no evidence as to what the intention of the parties would be in the event the clause was found to be void.

[40] That is simply not the case here. The parties have explicitly spelled out what they intend to do in the event any part of the contract is found to be unenforceable. In s. 12(2) the parties have provided that “[i]f any of the provisions of the present agreement is invalid or unable to be performed by virtue of any law, regulation...this modality shall in such case be considered to be modified or nullified, but only to the extent necessary to comply with the statute, regulation, order, legal requirement or principle and the other dispositions of the present agreement shall remain in force” [translation].

[41] Section 4 contains a precise list of reasons (“motifs”) for which immediate termination of the employment relationship without notice is authorized. Among the reasons listed was “continuing incapacity considered permanent”. That particular reason for immediate termination is invalid. The excision of the offending reason from the list does no violence to the integrity of the remainder of s. 4 which contains a list of other unrelated grounds for termination. It is significant that s 12(2) does not direct the court to do anything as clumsy as deleting the entire section or clause of the employment agreement. Rather, it directs that the “modality” be modified or nullified to the extent necessary.

[42] I conclude that section 12(2) directs that section 4 must be modified to remove the reference to permanent disability from the list of reasons (“motifs”) in s. 4. Removing that reason alone is the minimum extent necessary to give effect to s. 5(1) of the ESA and can be simply and logically done while introducing neither ambiguity nor uncertainty in the remainder of the clause as so modified. That is precisely what s. 12(2) directs be done in plain and simple language. There is no reason to disregard the express direction of the parties as contained in s. 12(2).

[43] With s. 4 modified to remove the reference to permanent disability as required by the clear language of s. 12(2), section 9(2) needs no modification at all. Any termination of employment for a reason not mentioned in s. 4 requires the ESA notice as specified in s. 9(2).

[44] Even if s. 4 were excised in its entirety instead of being modified as I find is required by s. 12(2), s. 9(2) can readily be construed in its absence. In the absence of all of s. 4, the employment agreement would simply contain no explicit provisions permitting termination without cause. The contract does not become unenforceable for failure to provide for each and every possible cause of termination. Where the contract is silent, the matter would be governed by the ESA and regulations that stipulate the circumstances when notice may be dispensed with.

[45] I conclude that s. 9(2) of the employment agreement is not rendered invalid or otherwise impaired by reason of the reference therein to s. 4.

(c) Whether employment agreement void for ambiguity

[46] The plaintiff further suggests that s. 9(2) might also be considered to be void since at least one possible interpretation of it could be viewed as permitting the giving of only 15 days’ notice whereas the ESA requires a greater number. The plaintiff suggests that since, at the time the contract was entered into, the plaintiff was already entitled to more than the 15 days’ notice mentioned in any event, the reference to that shorter notice period in s. 9(2) is at least ambiguous if not a disguised (and invalid) attempt to contract out of the minimum standards of the ESA. He argues that absent a clear and unambiguous waiver of reasonable notice, the common law standard of reasonable notice must prevail.

[47] Once again, the plaintiff cites Machtinger (supra) in support of this argument. The plaintiff contends that only the clearest of waivers of the reasonable notice standard will suffice since absent such a bright line, employers may be tempted to attempt to cheat employees of their minimum ESA entitlements. Indeed, In Machtinger (supra), Iacobucci J. noted that many employees might not be aware that there is such a thing as minimum required notice and employment contracts may often involve a disparity in bargaining power. Such considerations are not in fact present here. The plaintiff is a well-educated individual. Far from reflecting a disparity of bargaining power, the employment agreement in this case represented a significant opportunity for the plaintiff to earn additional income based on a higher guaranteed base salary and a higher commission rate.

[48] There is nothing unconscionable or contrary to public policy in permitting the parties to an employment agreement to contract out of the common law “reasonable notice” standard and incorporate the ESA standards by reference as has been done here: Roden, (supra) at para. 61-63. That is now settled law.

[49] The uncontradicted evidence of Mme. Beaudry was that the universal practice of the Centre was to apply the termination clause to the advantage of the employee by giving the employee the greater of the two notice periods specified (15 days or the ESA). It is hard to imagine any fair-minded, objective person concluding that the agreement as drafted allowed for any other outcome. The ESA is mentioned in s. 9(2) by name – not simply a vague reference to “the law”. There can be no reasonable fear here of an employee being tricked into believing they have no rights by an unscrupulous employer seeking to fool him or her into believing that some lesser standard is permitted.

[50] The plaintiff appeared to advocate for the view that if any potential interpretation can be posited that might in some hypothetical circumstance entail a potential violation of the ESA, however absurd or implausible the interpretation may be, then the only possible result is to strike out the entire section of the agreement. That is not the law.

[51] The first task in contractual interpretation is to interpret the contract with a view to ascertaining the objective intention of the parties. This is done by considering the language used by the parties in the context in which it is found. The goal is not to imagine how the contract can be construed at its conclusion with a pre-determined goal of finding a means to avoid it entirely because one side finds it less generous than desired. The goal is always and everywhere to determine what was intended on a true and fair construction of the contract. Then, and only then, can that construction be held under the light of s. 5(1) of the ESA to ascertain whether the parties intended to contract out of one or more employment standards prescribed by the ESA. If, and only if, a fair construction of the contract leads to the conclusion that such was their intention, then that attempt to contract out is rendered void by s. 5(1) of the ESA.

[52] I cannot find that a fair construction of the employment agreement permitted the employer any discretion to provide less than the minimum notice prescribed by the ESA. The only reasonable interpretation of the language employed in s. 9(2) was that the parties – both parties - fully intended the greater of the two notice periods to apply and the very law they incorporated by specific reference so required.

[53] I do not accept that I should strive to find the least plausible interpretation the language will bear simply because the outcome happens to favour one party or another in hindsight. While the plaintiff argues for contra proferentem – a doctrine of limited utility in the circumstances of this case – the interpretation that most favours the interest of the employee is the one that provides the employee with the greater of the two levels of notice, not the least. Contra proferentem is not a means of finding the least favourable interpretation to the employee with a view to invalidating the contract in whole or in part.

[54] Contracts are to be interpreted in their true context and I can find no basis to interpret this employment agreement in a way that neither party reasonably expected it would be interpreted when they entered into it. There was no intent to contract out of the ESA in fact; to the contrary, the intent to apply the ESA is manifest.

[55] I also find that, in any event, s. 12(2) of the employment agreement permits the excision of the superfluous (in this case) reference to 15 days in s. 9(2) of the employment agreement. If the possible application of the 15 day notice period would result in nullity pursuant to s. 5(1) of the ESA, then s. 12(2) of the employment agreement plainly and clearly provides that the provision must be modified to the extent necessary. Once again, there can be no doubt that the minimum revision necessary is simply to remove the unlawful contracting out (in this case, the reference to 15 days). The court is not vested with discretion to apply or ignore s. 12(2) as seems most convenient by reference to subjective standards of palm tree justice. While the parties are certainly free to contract for higher standards than the minimum standards prescribed by the ESA, choosing to adhere to those minimum standards is not contrary to public policy nor does it justify subverting the application of the contract the parties have chosen in favour of searching for a means to defeat it.

[56] In the result I conclude that s. 9(2) of the employment agreement applies and is neither void by reason of its reference to s. 4 nor due to its inclusion of a 15 day notice period. On a true construction of the employment agreement, the Centre agreed to provide only the notice prescribed by the ESA and has thereby excluded any other notice period that might be implied by the common law.

(d) Reasonable notice and Bardal factors

[57] The parties directed extensive argument, both oral and written, to the subject of reasonable notice in the circumstances of this case. I have decided to set forth below my conclusions regarding the reasonable notice that would have been inferred by me if s. 9.2 of the employment agreement had been found to be unenforceable for any reason.

[58] The determination of reasonable notice is more art than science and the Bardal[^1] factors are by no means an exhaustive catalogue: Minott v. O’Shanter Development Company Ltd. 1999 3686 (ON CA).

(i) Age and Seniority

[59] The plaintiff was 68 years of age in September 2013 and had been employed for just under 13 years (12.67 years). His years of service justify him being considered to be a medium to long service employee.

[60] It is suggested that the plaintiff’s age must be considered an aggravating factor arguing for longer notice. There is no evidence before me suggesting that the market for the type of sales, promotion or project-management job skills the plaintiff has developed over the years is more or less open because of his age. I cannot simply presume, absent some tangible foundation in the evidence, that age is an aggravating factor in this case.

(ii) Character of Employment

[61] The parties exerted a significant amount of energy disputing the true nature of the plaintiff’s employment and the precise degree to which he could be characterized as “managerial”. It would appear that there remains a suspicion among some that higher-level employees automatically receive greater notice periods than lower level employees. That suspicion is misplaced. Some highly placed managers are highly marketable and can reasonably expect to be placed quite quickly while some unskilled workers may find unemployment uncomfortably long if they find themselves in a community with few options. Character of employment is a factor, but is only one of several factors and there is no presumption that lower level employees necessarily have an easier time seeking re-employment than higher level employees: Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 at para. 26-28.

[62] The plaintiff was project manager of the Directory. He had no employees under his supervision, although he did on occasion work with and thus supervise volunteers or interns on term contract assignments. All in all, this was a comparatively small operation producing a single magazine-style publication per year. The employer was of course a non-profit and not a large company with hundreds or thousands of employees.

(iii) Qualifications and Experience

[63] M. Oudin has had broad experience in the hospitality, travel and tourism industries in sales and promotions generally. The jobs he did admit applying for in his later years at the Centre were reflective of his willingness to extend the job-search net to a wide range of potential positi