Fioravanti v. OLG, 2018 ONSC 3777

minicounsel

DATE: 27-06-2018 COURT FILE: 26810/15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

WALTER FIORAVANTI Applicant – and – ONTARIO LOTTERY AND GAMING CORPORATION Respondent

Counsel: Stephen Moreau, Counsel for the Applicant Trevor Lawson, Justine Lidner, Counsel for the Respondent

HEARD: November 21, 22, 2017 and April 5, 6, 2018

VARPIO J.

OVERVIEW

1This is an application brought by Mr. Walter Fioravanti. Mr. Fioravanti worked in senior legal capacities for the Ontario Lottery and Gaming Corporation (“OLG”) for several years and retired in 2016. The process that led to Mr. Fioravanti’s retirement evolved over a number of months. Mr. Fioravanti spoke with a number of OLG CEO’s and others regarding the terms of his retirement which were ultimately reduced to two contracts. The second contract – which became the operative contract – included certain pre-retirement employment obligations that Mr. Fioravanti was to fulfil in order to receive compensation beyond his salary and pension.

2On March 26, 2016, shortly before Mr. Fioravanti’s March 31, 2015 anticipated retirement date, Mr. Fioravanti met with Mr. Stephen Rigby, OLG’s recently appointed CEO. Mr. Rigby advised Mr. Fioravanti that Mr. Fioravanti did not fulfil the terms of the retirement contract and, as such, OLG was not required to pay Mr. Fioravanti any additional sums of money. OLG takes the position that Mr. Fioravanti was obliged under the relevant contract to locate and train his successor prior to his retirement. OLG also takes the position that Mr. Fioravanti was obliged to transfer the Compliance department to other portfolio(s) and that said transfer necessitated that the Compliance department achieve at a certain level of functionality.

3Mr. Fioravanti disputes OLG’s position. Mr. Fioravanti brings the instant application wherein he seeks the following relief: [1]

a. A finding that the relevant contract imposed modest obligations;

b. A finding that Mr. Fioravanti discharged said obligations; and

c. A finding that OLG breached its obligations to pay Mr. Fioravanti.

4As will be seen further in my reasons, I disagree that the relevant contract imposed only modest obligations. Some were relatively modest while others were more meaningful. Nonetheless, Mr. Fioravanti did not fulfil the terms of the contract because his efforts were effectively thwarted by OLG’s actions. Specifically, Mr. Fioravanti identified an appropriate successor but OLG’s delay in dealing with the successorship issue prevented Mr. Fioravanti from training that person. I also find that the relevant contract imported no specific standards for Compliance such that the transfer of Compliance was simply a high-level transfer of accountability to another person. Mr. Rigby’s March 26, 2015 actions prevented Mr. Fioravanti from undertaking this simple task. As such, I find that OLG breached its obligations to pay Mr. Fioravanti because it prevented Mr. Fioravanti from fulfilling the terms of the contract. Therefore, the application is granted in that Mr. Fioravanti is to be paid by OLG as though he fulfilled the terms of the governing contract.

EVIDENTIAL DISPUTE

5The parties brought motions as against each other claiming that certain passages of the record violated the rules of admissibility. Mr. Fioravanti was concerned about passages whereby OLG’s affiants would use terms such as “it was clear that” to make certain points. He was also concerned about OLG’s affiant’s reliance upon unattributed hearsay.

6OLG, for its part, submits that Mr. Fioravanti’s Reply Record went beyond the scope of proper reply in so far as Mr. Fioravanti’s reply record was 274 pages long and contained a number of new documents. OLG is concerned that Mr. Fioravanti’s evidential record effectively constitutes case splitting.

7I will deal with each issue in turn.

8Where an affiant relies upon conclusory statements or unattributed hearsay, I will afford those statements no weight. Such affidavit evidence runs afoul of the Rules and will not be considered by me.

9Further, a review of Mr. Fioravanti’s Reply Record is clear that his record effectively split his case in two, making it impossible for OLG to refute Mr. Fioravanti’s documentary bombardment. Relying upon such a Reply Record runs contrary to a number of cases including Friends of Lansdowne v. Ottawa (City), 2011 ONSC 1015 (paras. 55-6). I will not, therefore, consider the Reply Record in my decision-making.

FACTS

The Ontario Lottery and Gaming Corporation

10OLG is a Crown corporation owned by the Government of Ontario. It is responsible for the province's lotteries, charity and Indigenous casinos, commercial casinos, and slot machines at horse-racing tracks.

11Over the course of the last several years, OLG has overseen a number of changes in the way it conducts business. Mr. Thomas Marinelli, who worked as Acting CEO of OLG during the relevant periods of time, swore an affidavit in this matter wherein he described OLG’s business model. Specifically, Mr. Marinelli indicated that OLG’s statutorily-mandated objectives include:

a. the development, undertaking, organization, conduct and management of lottery schemes on behalf of Her Majesty the Queen in right of Ontario;

b. the operation of gaming sites; and

c. ensuring that lottery schemes and gaming sites are conducted, managed and operated in accordance with the Criminal Code of Canada, the OLGC Act and the Gaming Control Act, 1992.

12In 2012, OLG commenced a large-scale, multi-year undertaking known as the “Modernization Plan” whereby 19 gaming sites, more than 5,000 jobs and millions of dollars in assets were to be transferred from OLG to private sector service providers. Accordingly, OLG’s internal functions, portfolios and departments required restructuring. Mr. Marinelli deposed that, as of February 24, 2107, the Modernization Plan remained a “work in progress”.

Mr. Walter Fioravanti

13Mr. Walter Fioravanti worked for OLG for over 25 years. He began as legal counsel in 1990 and, by the time of his retirement in 2016, he was the organization’s Senior Vice-President Legal Regulatory and Compliance, General Counsel and Corporate Secretary. It is undisputed that, by the time of his retirement, Mr. Fioravanti was a key member of the organization in so far as he had a relatively unique skill set involving knowledge of gaming-related issues and the Criminal Code of Canada. Mr. Fioravanti deposed, and it was effectively conceded in oral argument, that only senior counsel at the Alcohol and Gaming Commission of Ontario (“AGCO”), possessed a skill set similar to that possessed by Mr. Fioravanti [2].

14Mr. Fioravanti worked as legal counsel for OLG until November 2010. He periodically had involvement with Compliance. In November 2010, he became OLG’s Senior Vice President Legal. In April 2011, Mr. Fioravanti was also asked to assume responsibility for Compliance. It was Mr. Fioravanti’s position (which was not seriously contested by OLG) that he became relatively unhappy with his level of pay in that other executives within the organization earned more money and Mr. Fioravanti had multiple responsibilities.

Mr. Fioravanti Considers Retirement

15In 2011, Mr. Rod Phillips became the CEO of OLG. Mr. Fioravanti deposed that the issue of Mr. Fioravanti’s compensation was sufficiently significant that he approached Mr. Phillips to discuss the matter. Mr. Fioravanti was told that no wage changes could be undertaken at that time given the wage restraints implemented by the government of the day. Mr. Fioravanti deposed that the two men discussed Mr. Fioravanti’s pay situation over several months and even years. Mr. Fioravanti deposed that he considered retiring rather than working long hours for what he viewed as insufficient pay.

16During the course of these conversations, the issue of transferring Compliance from Mr. Fioravanti to another executive was discussed. The notion that such a transfer could trigger constructive dismissal remedies was also examined. [3]

The First Retirement Contract

17The conversations between Mr. Fioravanti and Mr. Phillips continued and evolved into a discussion regarding Mr. Fioravanti’s transition into retirement. Mr. Fioravanti spoke with OLG’s then Chief of Human Resources and CFO, Mr. Preet Dhinsa, regarding his situation. Mr. Dhinsa advised Mr. Fioravanti that any agreement between OLG and Mr. Fioravanti regarding Mr. Fioravanti’s terms of employment would need to be formalized in writing, to be drafted by OLG’s external counsel.

18On November 13, 2013, Mr. Philips wrote to Mr. Fioravanti in accordance with these conversations and outlined a package that would effectively bridge Mr. Fioravanti into retirement:

Dear Walter:

This letter will confirm OLG’s proposal to incentivize you to continue your employment with OLG and complete specific goals and milestones related to the Modernization Plan, and to assist you in your transition to retirement, as follows:

19In this letter, certain conditions and terms were delineated. Specifically, the letter addressed five duties to be performed in addition to Mr. Fioravanti’s regular duties. Two of those duties are relevant to the instant litigation, specifically the transfer of Compliance and the identification of Mr. Fioravanti’s successor. With respect to the transfer of Compliance, the November 2013 contract stated:

By no later than September 30, 2014, you will implement whatever changes are necessary to ensure that the Compliance department under your portfolio fully and successfully meets OLG’s compliance requirements in relation to the Modernization Plan. In particular, by no later than September 30, 2014, the compliance department must have in place all of the necessary staff, tools, processes, structures, programs and policies in order to allow it to fully and successfully meet OLG’s compliance requirements in relation to the Modernization Plan.

By no later than January 31, 2015, you will fully and successfully complete the transfer of the Compliance department to the Finance and Corporate Services portfolio and/or to such other portfolio(s) as OLG directs. OLG acknowledges and agrees that the transfer of the Compliance department to another portfolio(s) will constitute a material diminution by OLG of the scope of your position and duties within your portfolio which will provide you with a basis to advance a claim for constructive dismissal by OLG following the completion of such transfer. [emphasis added]

20With respect to the identification of a successor, the November 2013 contract stated:

By no later than September 30, 2014, you will assist OLG in identifying and selecting a successor to lead your department following the transfer of the Compliance department to the Finance and Corporate Services portfolio (and/or to such other portfolio(s) as OLG directs). Once your successor is selected and hired by OLG, you will assist OLG in preparing your successor to lead your department, and will fully and successfully transfer all of your duties to your successor, by no later than January 31, 2015.

21The contract also stipulated the manner in which satisfaction of the above-mentioned terms would be determined:

The President and CEO, acting reasonably and in consultation with you, shall determine whether you have fully and successfully completed each [of] the specific duties set out… above.

22Upon completion of the terms, certain payments were to be made.

23Mr. Fioravanti signed the November 2013 contract.

24Of note, the November 2013 contract was made contingent on OLG’s Board approving its terms and the Provincial Government approving the Modernization Plan.

The Governing Contract

25Negotiations as between Mr. Fioravanti and representatives of OLG continued after the contract was signed. Mr. Fioravanti deposed that certain changes to the November 2013 contract needed to be made in order to ensure Board approval. For example, Mr. Fioravanti’s departure date needed to be extended to March 31, 2015. During this time, Mr. Phillips resigned as CEO of OLG to be replaced by Mr. Marinelli, who assumed the role of acting CEO.

26Mr. Marinelli deposed that Mr. Fioravanti was one of only two people in Ontario who had specific knowledge of the provisions of the Criminal Code of Canada as they relate to OLG’s operations [4]. Mr. Marinelli deposed that he thus wanted Mr. Fioravanti to have adequate time to find and train a successor.

27Via letter signed by Mr. Marinelli on July 14, 2014 and Mr. Fioravanti on July 20, 2014 (the “Contract”), Mr. Fioravanti and OLG replaced the November 2013 contract with a new agreement.

28The relevant portions of the Contract state:

Dear Walter:

As you are aware, Ontario Lottery & Gaming Corporation (“OLG”) is engaged in a process which involves the transfer of certain OLG lottery and gaming employees and assets to private sector service providers and a re-organization of OLG’s internal functions, portfolios and departments (the “Modernization Plan”). This letter will confirm OLG’s proposal for you to complete specific goals and milestones and to assist you in your transition to retirement, as follow:

Effective Date. The terms and conditions as set out in this letter have been approved by the Board of Directors (the “Board”) and will be effective as of the date on which you confirm your acceptance of the terms and conditions set out in this letter by signing in the space provided below (the ‘Effective Date’).
Performance of Duties. Following the Effective Date, you will continue to report to work and to perform your regular duties for OLG. In addition, you will complete the following specific terms:

29Six specific terms were described in subparagraphs to paragraph (2) of the Contract. OLG admits that, of the six specific duties described, Mr. Fioravanti successfully completed four of same. OLG claims that Mr. Fioravanti failed to fulfil the following two terms:

(c) You will assist OLG in identifying and selecting a successor to lead your department and in securing the Board’s approval for the appointment of your successor. Once the appointment of your successor is approved by the Board, you will assist OLG in preparing your successor to lead your department, and will fully and successfully transfer all of your duties to your successor, by no later than March 31, 2015; and

(f) You will transfer the compliance department to other portfolio(s).

30Of particular note, neither Mr. Fioravanti nor Mr. Marinelli gave evidence as to why the objective metrics regarding the state of the Compliance department prior to transfer were included in the November 2013 contract, but were removed from the Contract. [5]

31The Contract specified how successful completion of the duties would be determined:

The President and CEO, acting reasonably and in consultation with you, will determine whether you have fully and successfully completed each [of] the specific duties set out in paragraph 2, above.

32The Contract then spelled out how payments would be made to Mr. Fioravanti:

Transition to Retirement. Provided that you remain employed by OLG and fully and successfully complete each of the specific duties set out in paragraph 2 in accordance with the specific timelines set out in paragraph 2 above, OLG agrees to provide you with the following in order to assist you in your transition to retirement.

33Mr. Marinelli deposed that he did not believe that the Contract contained “minimal duties”. Mr. Marinelli deposed that the payout for performance of all the terms of the Contract amounted to considerable payment such that he would never have agreed to such a payment in exchange for only “minimal duties”.

Compliance

34Mr. Marinelli described the importance of the Compliance department in his affidavit. Specifically, Mr. Marinelli stated:

The health and orderly operation of Compliance took on heightened importance in the context of implementing the Modernization Plan, which, at its conclusion, will result in the transfer of all OLG’s land-based gaming casino and slots operations to private operators, but not the transfer of OLG’s legislative responsibility for ensuring that all such operations continue to operate in accordance with applicable legislation, including the Criminal Code (Canada), The OLGC Act, the Gaming Control Act, 1992 and regulations made thereunder. The Alcohol and Gaming Commission of Ontario (the “AGCO”) confirmed that OLG would remain responsible for ensuring the compliance of the private operators and had expressed to OLG the importance of OLG’s Compliance being a strong, functioning department. At or around this time, it was also necessary for Compliance to ensure that it was capable of providing compliance oversight in relation to online and charitable gaming operations, where were growing.

Given that Compliance would not be transferring away from OLG as part of the Modernization Plan, it was of critical importance that Compliance be positioned as a strong, centralized department which would train, monitor and audit the private operators. Compliance also had to be the main interface between OLG and AGCO and other regulators, building productive and functional relationships and ensuring OLG was proactively identifying and addressing regulatory issues, a function which would become increasingly important during and following the implementation of the Modernization Plan. Compliance needed to be in a position to provide resources and support to the private operators and to assist in facilitating the smooth transition of the operation of the sites in order for the successful implantation of the Modernization Plan.

35Mr. Larry Rourke, Senior Vice-President, Human Resources, swore an affidavit in the matter wherein he stated:

The overarching purpose of OLG’s Compliance Department (“Compliance”) is to ensure that OLG carries on business at all times in compliance with all applicable legislation. The health and orderly operation of Compliance is especially important in the context of the successful implementation of the Modernization Plan and will continue to have legislative responsibility for ensuring that the gaming sites which transfer to service providers operate in compliance with the Gaming Control Act, 1992 and AGCO Standards, the Criminal Code (Canada), Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the OLGC Act, Freedom of Information and Protection of Privacy Act (FIPPA), Canada’s Anti-Spam Legislation (CASL), and the French Language Services Act (FLS). The Alcohol and Gaming Commission of Ontario has expressed the importance of OLG’s Compliance being a strong, functioning department.

When I arrived in January, 2015, the transfer of Compliance was not underway. In fact, it was not in a position to be transferred and no steps had been taken by Fioravanti to transfer Compliance.

36Mr. Marinelli deposed that compliance was, as of July 2014, in no shape to be transferred. For example, in the spring of 2014, the AGCO released an audit describing a number of concerns at the Great Blue Heron casino, a privately operated casino. Mr. Marinelli deposed that the AGCO was preparing to “take significant actions against the Great Blue Heron. At the same time, OLG’s Internal Audit Services Department identified a serious lack of oversight of the operations at the casino”.

37In January 2015, OLG’s Internal Audit Department released an audit of the Compliance Department. It identified serious issues with the following:

(a) lack of a comprehensive compliance framework for compliance with all applicable laws and regulation;

(b) compliance risk assessment;

(c) corporate compliance has not implemented monitoring controls and does not proactively identify non-compliance incidents;

(d) lack of monitoring and oversight of remediation activities;

(e) lack of compliance oversight at resort properties; and

(f) inadequate compliance training to OLG employees.

38Mr. Rourke also opined regarding the state of the Compliance Department at the relevant times:

When I arrived at OLG in August 2014, the transfer of Compliance from the legal services portfolio was not well underway, nor was the transfer merely being impeded by Fioravanti’s continued presence. In fact, Compliance was not in a position to be transferred to another portfolio and no steps had been taken by Fioravanti to transfer Compliance to another portfolio. It was not, at any point in time between my arrival at OLG and March 31, 2015, ready for transfer to another portfolio. There were serious ongoing issues with Compliance, as discussed above, which had to be addressed before Compliance could be transferred to another portfolio.

To my knowledge, there was no plan in place to facilitate the transfer of Compliance from the legal services portfolio. Between my arrival at OLG in August 2014 and March 2015, no formal succession planning or transfer of knowledge and information took place between Fioravanti and Dhindsa, who was identified as the person who would succeed Fioravanti as Chief Compliance Officer concurrent with the transfer of Compliance outside the legal services portfolio. Fioravanti did not take any steps to facilitate the transfer of Compliance outside of the legal services portfolio and did not take any steps to ensure Dhindsa was prepared to succeed Fioravanti as Chief Compliance Officer as of April 1, 2015.

In a report by OLG’s Audit Services dated November 2014 regarding OLG’s Anti-Money Laundering Compliance, serious deficiencies were raised respecting OLG’s Anti-money Laundering (“AML”) Program, for which Compliance was responsible. A copy of this report is attached as Exhibit “O” to this Affidavit.

The nature and extent of the serious and material deficiencies in Compliance for which Fioravanti was responsible came to light in January 2015. At that time, OLG’s Audit Services delivered an audit of Compliance which revealed a number of serious issues, including...

[emphasis added]

39Mr. Fioravanti’s Performance Incentive Payout Formula sheet for 2013-4, however, describes Compliance’s performance somewhat differently than the way it is described in Mr. Rourke and Mr. Marinelli’s affidavits. Under the “Results” heading, the document states:

The Compliance function has been established, both from a “roles & mission” perspective and from a structure and resource perspective.

40Under the “CEO comments” heading, the document states:

From a slow start at the beginning of Fiscal 14, the compliance function has now been established and is assuming its role in current OLG with an eye for enhanced work in future OLG. The function has matured in a very short period of time. Its challenge will be to instill a culture of compliance in the broader OLG staff and management group.

41Based on this document, Mr. Fioravanti takes the position that Compliance was in good order at the time the Contract was signed.

42Mr. Rourke and Mr. Marinelli allege that OLG’s executive team had issues with Mr. Peter Thurton, who was Mr. Fioravanti’s direct report and, despite Mr. Rourke’s testimony, a possible replacement as head of Compliance. It is alleged that these issues were apparent by December 9, 2014 when Mr. Thurton made a presentation to the Executive Board that was met with resistance. Mr. Fioravanti denies that Mr. Thurton’s conduct was in any way inappropriate or less than exemplary. In fact, Mr. Fioravanti gave Mr. Thurton a favourable performance review in the spring of 2015. Mr. Rourke indicated that Mr. Fioravanti and Mr. Thurton appeared to have had a close relationship [6].

Mr. Fioravanti’s Successor

43OLG hired a number of lawyers in the years leading up to the signing of the Contract. Some of them remained with OLG during the impugned times while others left the organization. At the time the Contract was signed, Ms. Lori Sullivan, Mr. Tony Wong and others worked in-house at OLG. Ms. Sullivan joined OLG with fifteen years’ experience at a major Toronto law firm and had extensive commercial and transactional experience. At OLG, she attended briefings with senior bureaucrats and Ministers.

44Mr. Fioravanti forwarded the names of Mr. Wong and Ms. Sullivan to Mr. Marinelli as potential successors. Mr. Marinelli, however, believed that, “[a]s of July 2014, neither Wong [n]or Sullivan had sufficient knowledge, training or experience to take over Fioravanti’s role”.

45Mr. Marinelli deposed that “[t]he key objective behind negotiating the condition in the Contract that Fioravanti must assist OLG in preparing his successor to lead the department and to fully and successfully transfer all of his duties to that successor by no later than March 31 was to ensure a smooth transition for OLG”. Mr. Marinelli deposed that Mr. Fioravanti did not, during the former’s time as Acting CEO, suggest that the latter preferred one candidate over another.

46Despite his concern about smooth transition, Mr. Marinelli deposed that

It was always my position that the incoming permanent President and CEO would have to sign off on the final decision for replacing Fioravanti’s position, as I felt this decision was more appropriate for the President and CEO who would be working with the individual the most on an on-going basis. Nonetheless, this should not have prevented Fioravanti from identifying a specific prospective internal successor and preparing that person for a full and complete transfer of his duties as of March 31, 2015.

Mr. Stephen Rigby Becomes CEO

47On January 5, 2015, Mr. Stephen Rigby became CEO of OLG. He filed an affidavit wherein he deposed that on January 29, 2015, he and Mr. Fioravanti had their first “bilateral” meeting. At the meeting, they discussed successorship. Mr. Rigby deposed that Mr. Fioravanti advised that either Mr. Wong or Ms. Sullivan could succeed Mr. Fioravanti. Mr. Rigby deposed that external candidates also needed to be considered. Mr. Rigby met with two external candidates on March 5 and 6, 2015 and neither candidate was interested in succeeding Mr. Fioravanti.

48Mr. Rigby deposed that:

As of March 2015, it was clear that not only had Fioravanti failed to assist in identifying and recommending a successor and in securing Board approval for his successor, but also none of the candidates he had suggested, including Wong and Sullivan, had been prepared to take over his roles as of April 1, 2015. Fioravanti had not taken any steps whatsoever to prepare any individuals to lead his department, nor had he taken any steps to ensure his duties would be fully and successfully transferred as of the deadline of March 31, 2015. It was clear that there was no reasonable prospect of this duty being fulfilled by that date.

49With respect to the Compliance department, Mr. Rigby deposed that by “January 2015, Compliance was deficient in many material respects, particularly given the context of the Modernization Plan”. As noted earlier, a negative audit report was released in January 2015.

50During February 2015, Mr. Rigby and Mr. Fioravanti met to discuss the state of the Compliance department. Mr. Rigby indicated that he believed that Compliance was not in a state to be transferred since “[t]he fixes required to remedy Compliance required oversight by legal counsel and could not be effectively dealt with if moved to the Finance portfolio…”

51Mr. Rigby deposed that he and Mr. Fioravanti discussed the Contract and its terms at the February meeting(s):

I also recall Fioravanti asking me a question to the effect of whether I had difficulties with the terms of the Contract. I recall replying to his direct question to the effect that, had I the opportunity to be involved at the point in time, I would not have entered into the Contract. That said, at no time did I suggest or intimate that I was not prepared to fulfill the terms of the Contract if Fioravanti successfully met all of the deliverables within it and any insinuation to the contrary is without merit. Regardless of my views of the Contract terms, it was my responsibility under the Contract to make a decision as to whether the obligation in Paragraph 2 of the Contact had been fully and successfully completed.

Contrary to Fioravanti’s interpretation of our conversation, I did not imply or state to Fioravanti that there was any political angle which would influence my decision as to whether Fioravanti had fully and successfully completed his obligations under Paragraph 2 of the Contract. I had no issue with defending the decision to pay Fioravanti the amounts payable under the Contract if I was satisfied that Fioravanti had fully and successfully completed these obligations.

However, it was clear as of March 2015 that Compliance was not in fit state to be transferred ad that there was no reasonable prospect that it could be transferred by March 31, 2015.

The March 26, 2015 Letter

52On March 26, 2015, Mr. Rigby met with Mr. Fioravanti and Mr. Rourke. At the meeting, Mr. Rigby provided Mr. Fioravanti with a letter indicating that Mr. Fioravanti failed to meet the terms described in paragraphs 2(a), 2(c) and 2(f) of the Contract. [7]

53Mr. Rigby deposed that he did not make any statement to the effect that he would not honour the Contract. In fact, Mr. Rigby deposed that he did not expect Mr. Fioravanti to leave his employment at OLG:

…In fact, given Fioravanti’s failure to identify and select a successor to lead his department, to prepare a successor to lead his department [sic], and to fully and successfully transfer all of his duties to his successor, OLG found itself in a position where Fioravanti’s continued employment was necessary in order to ensure that the critical functions for which Fioravanti was responsible continued to be performed.

The End of Mr. Fioravanti’s Employment

54On March 31, 2015, Mr. Fioravanti wrote to Mr. Rigby proposing that OLG extend the deadline to permit Mr. Fioravanti the opportunity to complete the terms of the Contract. In that letter, Mr. Fioravanti wrote:

As I expressed to you at our March 26/15 meeting, I disagree with your conclusions and allegations as they relate to the terms of my employment…

I will leave it to legal counsel to discuss next steps on the litigation front. However as my employment appears to be continuing, I write to request your and OLG’s direction on the revised date for my retirement. In other words, if the alleged performance concerns you have outlined to me at the March 26/15 meeting, confirmed by letter of same date, have made it such that, at present, my successor cannot be chosen and Compliance is in the state of disarray that you allege, I wish to know the date on which I am to now supposed fulfill my terms of the agreement in order for OLG to honour its terms. At present, I have no direction regarding my present employment.

55On April 15, 2015, Mr. Rigby wrote to Mr. Fioravanti advising him that OLG would not extend the terms of the Contract:

With respect to your question as to a new date, as advised in our prior discussion, the terms of the letter agreement dated July 14, 2014 have not been met and we are not prepared to extend the arrangement. Accordingly, OLG will continue your employment beyond March 31, 2015 in your current role, duties and responsibilities, compensation and benefits and all other current terms and conditions of your employment.

56On April 17, 2015, Mr. Fioravanti wrote to Mr. Rigby (a) confirming that he had intended to retire; and (b) requesting that Mr. Fioravanti be allowed to work from OLG’s Sault Ste. Marie office so as to care for his ailing mother.

57In May 2015, Mr. Fioravanti received his Pay For Performance Variable Pay for 2014/2015. This variable pay accounted for up to 20% of Mr. Fioravanti’s earnings. Mr. Fioravanti received the maximum available payment under the plan. In his affidavit, Mr. Rigby explained how Mr. Fioravanti received full payment for his variable pay:

When confirming the variable pay plan amounts or [sic] Fiscal Year 2014-2015 in approximately May of 2015, OLG decided to adopt the result in the individualized self-assessments received from each ELT and Senior Management Team member rather than to undergo a specific assessment of the performance of each individual. Given the relative low value of amounts attributable to non-financial objectives, the fact that I had not been involved in the setting of the objectives, that I was not familiar with the majority of the ELT and Senior Management Team members and that I had not been with the OLG during the Fiscal Year 2014-2015, I made the business decision with Rourke to set the payment amounts as indicated in the self-assessments rather than to analyze or dispute the self-assessments provided by the individuals.

I have been advised by Rourke that Fioravanti awarded himself a score of 30/30 on his self-assessment.

58On June 8, 2015, Mr. Fioravanti served OLG with the instant application. On June 10, 2015, Mr. Rigby wrote to Mr. Fioravanti advising that the application generated a significant conflict of interest such that Ms. Sullivan would assume Mr. Fioravanti’s duties.

59On June 26, 2015, Mr. Rigby sent an email to OLG’s senior executives advising them that Mr. Fioravanti would be taking “an extended vacation” such that Ms. Sullivan would take on the role of General Counsel.

60On July 22, 2015, Mr. Fioravanti effectively resigned from OLG.

Events Since the Resignation

61Mr. Rigby deposed that, since Mr. Fioravanti’s resignation, OLG’s compliance department has become far more effective. It has doubled in size and now meets the AGCO’s concerns on a regular basis.

62Further, I was informed in oral argument that Ms. Sullivan remains in her role as OLG’s senior legal counsel and is succeeding in this function.

POSITION OF THE PARTIES

63In his factum, Mr. Fioravanti seeks the following declarations:

A finding that the Contract imposed modest obligations;
A finding that Mr. Fioravanti discharged said obligations; and
A finding that OLG breached its obligations to pay Mr. Fioravanti.

64In its factum, OLG seeks the following findings:

A finding that the Contract did not impose modest obligations;
A finding that, in order for Mr. Fioravanti to be paid as per the Contract, all six duties listed in paragraph (2) of same needed to be satisfactorily completed;
A finding that OLG complied with its obligation to consult, and work with, Mr. Fioravanti to assist the latter in discharging his duties under the Contract;
A finding that Mr. Rigby reasonably found that Mr. Fioravanti failed to discharge his duties; and
A finding that Mr. Fioravanti is therefore owed nothing under the terms of the Contract.

ANALYSIS

The Law

Contractual Interpretation

65This case, at its root, involves the interpretation of the Contract. The Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp. 2014 SCC 53, [2014] 2 S.C.R. 633 re-examined the principles regarding contractual interpretation. At paragraphs 47 and 48, the Court stated:

Regarding the first development, the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine "the intent of the parties and the scope of their understanding" (Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1 S.C.R. 744, at para. 27, per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at paras. 64-65, per Cromwell J.). To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning:

No contracts are made in a vacuum: there is always a setting in which they have to be placed... . In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.

(Reardon Smith Line, at p. 574, per Lord Wilberforce)

The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement (see Moore Realty Inc. v. Manitoba Motor League, 2003 MBCA 71, 173 Man. R. (2d) 300, at para. 15, per Hamilton J.A.; see also Hall, at p. 22; and McCamus, at pp. 749-50). As stated by Lord Hoffmann in Investors Compensation Scheme Ltd. v. West Bromwich Building Society, [1998] 1 All E.R. 98 (H.L.):

The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. [p. 115]

66At paragraphs 56 to 58 of the same decision, the Court also stated:

The Role and Nature of the "Surrounding Circumstances"

I now turn to the role of the surrounding circumstances in contractual interpretation and the nature of the evidence that can be considered. The discussion here is limited to the common law approach to contractual interpretation; it does not seek to apply to or alter the law of contractual interpretation governed by the Civil Code of Québec.

While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30). The goal of examining such evidence is to deepen a decision-maker's understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), 101 B.C.A.C. 62).

The nature of the evidence that can be relied upon under the rubric of "surrounding circumstances" will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract (King, at paras. 66 and 70), that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann"absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man" (Investors Compensation Scheme, at p. 114). Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact.

Good Faith

67In Bhasin v. Hrynew, 2014 SCC 71, the Supreme Court of Canada examined the need for parties to act in good faith to comply with the terms of a given contract. At paragraphs 65 and 66, the Court stated:

The organizing principle of good faith exemplifies the notion that, in carrying out his or her own performance of the contract, a contracting party should have appropriate regard to the legitimate contractual interests of the contracting partner. While "appropriate regard" for the other party's interests will vary depending on the context of the contractual relationship, it does not require acting to serve those interests in all cases. It merely requires that a party not seek to undermine those interests in bad faith. This general principle has strong conceptual differences from the much higher obligations of a fiduciary. Unlike fiduciary duties, good faith performance does not engage duties of loyalty to the other contracting party or a duty to put the interests of the other contracting party first.

This organizing principle of good faith manifests itself through the existing doctrines about the types of situations and relationships in which the law requires, in certain respects, honest, candid, forthright or reasonable contractual performance. Generally, claims of good faith will not succeed if they do not fall within these existing doctrines. But we should also recognize that this list is not closed. The application of the organizing principle of good faith to particular situations should be developed where the existing law is found to be wanting and where the development may occur incrementally in a way that is consistent with the structure of the common law of contract and gives due weight to the importance of private ordering and certainty in commercial affairs. [emphasis added]

68Related to the notion of good faith is the concept that a party may not, by its own default, defeat the other party’s rights under a contract. See: Aldercrest Developments Ltd v. Hunter, [1970] 2 O.R. 562 (Ont. C.A.); Rede v Farr (1817) 6 M & S 121; Chairman’s Brands Corp. v. Association of Danube-Swabians, 2014 ONSC 6722 (Ont. S.C.).

Mr. Fioravanti’s Duties – All or Nothing?

69OLG submits that the wording of the Contract [8] makes clear that Mr. Fioravanti needed to fulfill all the terms of the contract in order to be paid the sums set out in the Contract.

70OLG pointed to several cases where similar language imported an “all or nothing” meaning. I note, however, that all the cases provided by OLG pre-date Sattva. In the circumstances of this case, I disagree OLG’s analysis. First, it is a fundamental rule of contract law that partial performance of a contract will generally result in partial payment. In order for the breach of a term of the contract to repudiate the entire contract, the law demands that the breach in question be construed as a fundamental breach. [9]

71Read as a whole, the Contract makes clear that the terms described in paragraph (2) are not individually fundamental to the Contract. They are separate and discrete duties that need to be accomplished by Mr. Fioravanti in order to receive full payment.

72There is no basis to suggest that the permissive language used in the Contract (“Provided you...OLG agrees to...”) was intended to import the concept of fundamental breach to paragraph (2). Time was not made of the essence, nor was importance of any (or all) of the relevant duties adequately explained. Equally, while OLG’s evidence outlined the importance of selecting a successor and of the Compliance department, OLG did not furnish any evidence from anyone to suggest that the two terms allegedly breached by Mr. Fioravanti were central to the Contract such that any breach would have constituted a fundamental breach. Indeed, the other duties described in paragraph (2) – especially the resolution of AGCO issues described in paragraph 2(b) – appear equally important to those duties in dispute. Absent any evidence to support OLG’s contention, and looking at both the entire Contract and the facts objectively known to the parties at the time they signed the Contract, I am satisfied that the Contract was not intended to be “All or Nothing”.

73However, as will be seen below, this finding is not dispositive of this application.

The Successor

The Duties of Both Parties

74Mr. Fioravanti had duties beyond “minimal” or even “moderate” duties when it came to choosing his successor. The Contract stipulated that he was to:

assist OLG in identifying and selecting a successor to lead your department and in securing the Board’s approval for the appointment of your successor. Once the appointment of your successor is approved by the Board, you will assist OLG in preparing your successor to lead your department, and will fully and successfully transfer all of your duties to your successor, by no later than March 31, 2015.

75The plain meaning of this language is that Mr. Fioravanti was to identify a successor and secure Board approval. Once approval was secured, Mr. Fioravanti was to assist in training that successor with an eye towards transferring all duties by March 31, 2015.

76Given that the Contract was signed in July 2014, Mr. Fioravanti had eight or nine months to accomplish same. Indeed, I find that training of a successor would take several weeks given the myriad of areas for which Mr. Fioravanti was responsible and the complexity of the work (especially given the Modernization Plan). This is clear from Mr. Marinelli’s affidavit. Mr. Fioravanti’s retirement date was extended per OLG to allow him to train his successor. The fact that one other person in the Province of Ontario had the requisite skills to perform Mr. Fioravanti’s function meant that care and attention would need to be undertaken in order to ensure that OLG had a strong candidate in place by March 31, 2015. Mr. Fioravanti does not, therefore, succeed in proving that his was a minimal duty.

77OLG submits that Mr. Fioravanti ought to have trained Ms. Sullivan as a putative successor while waiting for Mr. Rigby’s ascension into the latter’s new role. That submission, however, flies in the face of the Contract’s language which stipulates that said training was to occur “[o]nce the appointment of your successor is approved by the Board”. Pursuant to the language of the Contract, Mr. Fioravanti had no duty to train a putative successor prior to Board approval. This makes sound commercial sense given the fact that Mr. Fioravanti had other pressing duties and OLG would not, presumably, have wanted Mr. Fioravanti to waste time training someone who might not be approved by the Board.

78OLG also submits that Mr. Fioravanti had a duty to specify as between Ms. Sullivan and Mr. Wong as per the Contract in the fall of 2014. That submission fails. The General Counsel role of a large organization is a role that involves considerable legal acumen. It also involves the ability to work with other members of senior management. Providing two possible candidates (assuming that at least one was acceptable) goes beyond the terms of the Contract in that it gave OLG an opportunity to choose the best possible successor from a very small subset of possible successors.

Was Ms. Sullivan an Appropriate Candidate?

79I find that Ms. Sullivan was an appropriate candidate to succeed Mr. Fioravanti. I base this finding upon the following:

Ms. Sullivan had considerable “big firm” experience prior to joining OLG;
She was skilled in certain portions of the portfolio for which she would ultimately become responsible;
No person – other than ACGO’s senior counsel – could have stepped into Mr. Fioravanti’s shoes with minimal training and effort;
Ms. Sullivan ultimately replaced Mr. Fioravanti; and
Ms. Sullivan has been, to all accounts, successful in her current role.

80In light of the paucity of fully qualified candidates, it cannot be said that Ms. Sullivan was an inappropriate candidate. If there had been multiple fully-qualified candidates, perhaps Ms. Sullivan’s qualifications would have been considered incomplete. However, there is no evidence to suggest that multiple such candidates existed.

81OLG did not provide me with any evidence to suggest that Ms. Sullivan’s transition after Mr. Fioravanti’s departure was unduly arduous. This undoubtedly speaks to her qualifications for the role. As such, Ms. Sullivan’s success in her current role demands that she was an appropriate successor.

82In light of this fact, Mr. Marinelli’s decision to wait for Mr. Rigby to decide on Mr. Fioravanti’s successor effectively thwarted Mr. Fioravanti’s ability to train Ms. Sullivan by March 31, 2015. Mr. Rigby’s decision to search for other outside candidates compounded the problem. I can see where, had Ms. Sullivan been failing in her current role, it would have been open for OLG to suggest that Mr. Fioravanti did not do enough to bring forward a capable replacement. That is not the case. Accordingly, Mr. Fioravanti identified a successor, but Mr. Marinelli and Mr. Rigby’s decisions to delay the naming of said successor effectively scuttled Mr. Fioravanti’s ability to train Ms. Sullivan. OLG is, therefore, author of its own misfortune in terms of not allowing Mr. Fioravanti adequate time to train Ms. Sullivan.

What if Ms. Sullivan Was Not an Appropriate Candidate?

83If I am wrong and if Ms. Sullivan was an inappropriate candidate as of March 26, 2015, then Mr. Marinelli and Mr. Rigby’s decisions are even more perplexing. First, given the complexity of the role, it would have been imperative for Mr. Marinelli to push Mr. Fioravanti to find an adequate replacement at the first available opportunity. Delaying matters until Mr. Rigby’s appointment would not have provided enough time to identify and train a successor.

84Second, if Ms.Sullivan was not yet ready for the role, it would have been incumbent on Mr. Rigby in April of 2015 to extend the March 31, 2015 deadline so as to allow Mr. Fioravanti the opportunity to identify and train his replacement. Again, given OLG’s delay in dealing with Mr. Fioravanti’s successor, OLG had the concomitant obligation to provide Mr. Fioravanti adequate opportunity to fulfil his duties under the Contract.

85As such, even if Ms. Sullivan was not yet ready for the role (although she clearly was), OLG’s delay effectively induced Mr. Fioravanti to breach paragraph 2(c) of the Contract.

Conclusion

86Mr. Fioravanti identified an appropriate successor and OLG’s delay in dealing with the matter defeated Mr. Fioravanti’s ability to train Ms. Sullivan. Mr. Fioravanti is not liable for OLG’s inducement of said breach. Accordingly, for the purposes of determining the payout under the Contract, paragraph 2(c) will be dealt with as though Mr. Fioravanti fulfilled all the terms of this subparagraph since OLG induced Mr. Fioravanti’s breach.

Compliance

87The plain language of the Contract is simply that Mr. Fioravanti was to “transfer the compliance department to other portfolio(s)”. Presumably this means that Mr. Fioravanti would simply need to, as was effectively submitted by his counsel, “change some names on an org chart”.

88While such a position is consistent with the plain wording of the contractual clause in question, it is not consistent with a certain other portions of the Contract. The preamble makes plain that the Modernization Plan is a key consideration when interpreting the Contract. Given that the Modernization Plan contemplates outsourcing of gaming operations to third-party providers, it is patently evident that an adequately functioning compliance department would be required in order to “transfer the compliance department to other portfolio(s)”. To suggest otherwise ignores OLG’s commercial reality. Given Mr. Fioravanti’s sophistication, it cannot be said that Mr. Fioravanti would not have considered such an interpretation. Had there been no other issues to consider, I would have had no problem in finding that Mr. Fioravanti failed to fulfil this contractually stipulated duty.

89The analysis does not, however, end there. One key issue augers in favour of Mr. Fioravanti’s position. The objective standards that were described in the November 2013 contract were removed from the Contract. No one has provided me with any evidence as to why that happened. As per Sattva, the removal of the said standards is an objective fact known to the parties at the time the Contract was signed. Any interpretation of the Contract must, therefore, deal with said removal.

90Of note and most importantly, in Mr. Fioravanti’s 2013/4 Variable Pay Report, Mr. Marinelli described the compliance department as follows:

91I do not know when the 2013/4 Variable Pay decisions were made but, since the 2014/5 decisions were made in approximately May 2015 (according to Mr. Rigby), I find that the 2013/4 decisions were likely made in approximately May of 2014. Accordingly, Mr. Fioravanti would have known that OLG’s Acting CEO described the Compliance department as having “matured in a very short period of time” when the Contract was signed in July 2014.

92In the 2013/4 variable pay document, both sides represented that the Compliance department had made considerable headway in its growth. Both sides effectively represented that the Compliance department was in relatively good standing. As noted earlier, the representations made in the 2013/4 Variable Pay Report are belied by the audit report received in January 2015. Given the scale of the audit, it is clear that Mr. Fioravanti failed to meet the November 2013 contractual standards. Those standards, however, were removed from the Contract and, as such, the scathing January 2015 audit is of no moment, especially since the problems with Compliance only “came to light” in January 2015 as per Mr. Rourke.

93Accordingly, I find that the parties acted upon OLG’s representations that by May of 2014 Compliance was “assuming its role in the current OLG with an eye for enhanced work in future OLG”. They removed the objective metrics required for the transfer of Compliance because, as per Mr. Marinelli’s comments on the Variable Pay document, Compliance’s performance was seemingly not worthy of criticism. Thus Compliance did not, have to achieve any level of functionality prior to transfer. Although inconsistent with OLG’s evidence, this conclusion is the only finding consistent with the removal of the objective metrics. Said removal must be afforded great weight.

Conclusion

94Given the parties’ representations regarding the state of compliance in May 2014 and the other factors noted above, I find that Mr. Fioravanti only needed to transfer high-level accountability for the Compliance department to someone else in order to fulfil the duties imposed upon him by the Contract. Mr. Rigby’s March 26, 2015 decision regarding fulfilment of the terms of the Contract defeated Mr. Fioravanti’s ability to fulfil this relatively minimal requirement. OLG could not thwart Mr. Fioravanti’s ability to reasonably fulfil the terms of the Contract. While Mr. Fioravanti did not actually transfer the department, said transfer was a negligible duty as per the Contract and could have been accomplished in a very short period of time (as opposed to the more strenuous obligations described in the November 2013 contract). Accordingly, I find that for the purposes of calculating Mr. Fioravanti’s payout as per the Contract, Mr. Fioravanti will be deemed to have completed this contractual stipulation because OLG induced Mr. Fioravanti’s breach.

CONCLUSION

95Regarding the Compliance department, the Contract imposed minimal duties upon Mr. Fioravanti. Regarding the successor, the Contract imposed more meaningful duties. OLG defeated Mr. Fioravanti’s ability to fulfil these duties as described in the reasons above. Accordingly, Mr. Fioravanti is eligible for a payout as though he fulfilled all the duties described in paragraph 2 of the Contract.

96Counsel advised me that there is a potential difference as to the calculation of said payout. If counsel can agree as to quantum, there is no need to appear before me again and Mr. Fioravanti will provide me with his costs outline (no more than 5 pages, excluding attachments) thirty days from the date that the parties settle the issue of quantum. OLG will have 30 days to file their response (same length limits). Alternatively, if the parties need to re-attend before me to set a date to argue the contracted payment, they shall secure a date from the trial coordinator’s office.

Varpio J.

Date: June 27, 2018

COURT FILE: 26810/15 DATE: 27-06-2018 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: WALTER FIORAVANTI Applicant - and – ONTARIO LOTTERY AND GAMING CORPORATION Respondent REASONS ON APPLICATION Varpio, J

Released: June 27, 2018

1The application record sought a variety of relief however Mr. Fioravanti’s factum only sought certain specific relief. I am only dealing with that relief sought in the factum.

2The AGCO is the regulator that oversees OLG.

3Mr. Phillips did not provide an affidavit in this matter.

4The other person was the ACGO’s aforementioned legal counsel.

5The following appears in the November 2013 contract but was removed from the Contract:

6Mr. Thurton was dismissed in October of 2015.

7In oral argument, counsel for OLG effectively abandoned the position that Mr. Fioravanti failed to comply with paragraph 2(a) of the Contract. I will not deal with this subparagraph as a result of that concession.

8“Provided that you remain employed by OLG and fully and successfully complete each of the specific duties set out in paragraph 2 in accordance with the specific timelines set out in paragraph 2 above, OLG agrees to provide you with the following in order to assist you in your transition to retirement”.

9Suisse Atlantique Société d'Armament SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361 (H.L.); Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 (H.L.); Beaufort Realties (1964) Inc. v. Chomedey Aluminium Co. Ltd., (1980), 116 D.L.R. (3d) 193, [1980] 2 S.C.R. 718