Court File and Parties

COURT FILE NO.: CV-16-128464 DATE: 20181129 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Alireza Jamshidi Plaintiff/Respondent – and – Dependable Mechanical Systems Inc., Pegasus General contracting Ltd., and 4R HVAC Inc. Defendants/Moving Parties

COUNSEL: Kevin Marshall, for the Plaintiff/Respondent Daniel E. Attwell, for the Defendants/ Moving Parties

HEARD: October 5 and November 19, 2018

REASONS FOR DECISION Granting SumMary JudgMent following Mini-Trial

MULLINS J.:

Introduction

[1] The claims of the plaintiff arise from termination of his employment by the defendant Dependable Mechanical Systems Inc. The defendant seeks summary judgment and asks for a declaration that the plaintiff was not contractually or legally entitled to:

(a) Commissions as alleged at paragraph 15 of the Statement of Claim;

(b) Increased salary as claimed in paragraph 30 of the claim; and

(c) Increased compensation in respect of any changes in duties and responsibilities as alleged in paragraph 32.

[2] Following the hearing of the motion, at the outset of the mini-trial, the plaintiff abandoned the claim made at paragraph 30, wherefore summary judgment is pursued only with respect to those claims made at paragraphs 15 and 32.

[3] Rule 20.04 of the Rules of Civil Procedure requires the court to grant summary judgment if satisfied that there is no genuine issue requiring a trial. In considering the evidence, the judge may exercise power to weigh evidence, draw any reasonable inference, and, of some import here, evaluate the credibility of a deponent.

[4] A helpful overview of the approach a court might take in circumstances, as here, of an oral contract of employment, may be found in Schluessel v. Margiotta, 2018 ABQB 615. The court notes at para. 6 that as a general rule of contractual formation, there must be a meeting of the minds in all the essential terms. Determination of the terms requires consideration of the nature of the transactions and the context. The burden of proof rests upon the plaintiff to establish there was consensus. An objective, reasonable person test is applicable. The inward, secret beliefs of a person are not relevant. Citing other authorities, the relevant factors were summarized at para. 11 as follows:

Credibility: Witnesses’ credibility must be tested against those facts that are not seriously in dispute, and with the preponderance of the evidence and the probabilities surrounding the events.

Burden of Proof: The person seeking to enforce a disputed oral contract carries both the legal and evidentiary burden of proving, on a balance of probabilities, that the alleged contract was made.

Basic Contractual Principles Apply: There must be proof of offer, acceptance, and certainty of terms.

Consent ad idem: Parties must agree on essential terms, and these terms must be capable of being determined with a reasonable degree of certainty.

Legal Test to Final Agreement: The court must assess whether the parties have indicated to the outside world, in the eyes of the objective reasonable bystander, their intention to contract and the terms of such contract. This is not about a party’s subjective intention or belief; it is an objective test.

[5] In summary, at para. 13, the court states:

In applying the objective, reasonable person test, courts will consider parties’ conduct before, during, and after a disputed agreement. Where there is disagreement on the facts of how parties’ conducted themselves “the court must decide which version of events is the most reliable,” that is, which version is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” ( Own para. 21). This may entail a credibility assessment.

[6] At the hearing of the motion for summary judgment, I concluded that a mini-trial should take place to allow for a better appreciation of the evidence of the plaintiff and of the president of the defendant corporations, each of whom had deposed affidavits. The time allocation for each party was made at an intervening pre-trial.

The Facts

[7] The plaintiff acquired several years of experience working in his father’s construction business, before immigrating to Canada in 2010. He obtained certificates in marketing, sales and account marketing in 2011, and construction management in 2012.

[8] According to his resume, Mr. Jamshidi was engaged as a Site Superintendent, between September and December of 2012. He was engaged as a Project Coordinator and Construction Manager Assistant for the period of May to August 2012. He provided property management services, through self-employment, from June 2013 onward.

[9] Dependable Mechanical Systems Inc. (“DMS”) is a mechanical contractor. As such, it provides plumbing, and to a lesser extent, it seems, electrical materials and services. Pegasus General Contracting Ltd. was engaged in but one contractual endeavor, I find, and its activities are largely irrelevant to this litigation. 4R HVAC INC fabricates metal for DMS. Its activities are also largely irrelevant. The plaintiff was engaged by DMS, not the latter two companies, I find.

[10] DMS carries on business exclusively in the Industrial Commercial Institutional sector of the construction industry. I accept the evidence of Mr. Mr. Rajesh Ahuja, president of the defendant corporations, that DMS acquires work exclusively through tendering. There are three websites in particular, wherein requests for proposals are sourced, according to the evidence. Pre-qualification as a bidder is required at times, to ensure that a company has demonstrable proficiencies and resources to perform any contract awarded. Universally, in Mr. Ahuja’s’ experience, contracts are awarded to the lowest bidder. To this extent, Mr. Ahuja explained, his company does not engage in sales, per se.

[11] The plaintiff sought employment with the defendant DMS in early May 2014. He applied for the position of Business Development Manager. Mr. Jamshidi is of the view that the position was one of higher management. There is an organizational chart that reflects this. According to Mr. Ahuja, the actual organization of DMS is fairly flat.

[12] The plaintiff first met with Mr. Ahuja on May 8, 2014. He was engaged at a second meeting on May 12, 2014. The plaintiff deposes that Mr. Ahuja told him that the position would be remunerated in a manner similar to all other DMS sales or sales-related jobs. The plaintiff contends that he was promised a salary of $55,000 and a commission of 1% of the value of projects sold.

[13] Mr. Ahuja agrees that Mr. Jamshidi was promised a salary of $55,000. He is adamant however, that at no time was Mr. Jamshidi promised a commission. No employee of DMS has ever earned a commission, was his evidence. The predecessor to Mr. Jamshidi, who held the position of BDM, earned $71,000 in salary.

[14] Mr. Jamshidi’s handwriting appears on an Employment Application Form, dated May 12, 2012; his first day of work. He was forthright in acknowledging that he completed the first two of three pages. With reluctance, he agreed that the third page also bears his own handwriting. Under title For Personnel Department Only, Rate of Pay: “$55,000 for the probation – period” was written, I find, by the plaintiff. The plaintiff characterizes this page as nothing more than a receipt for the vehicle he was provided, and, indeed there is reference to the vehicle and its condition noted in the “Rewards” section.

[15] Having observed the considerable shortcomings of DMS, the plaintiff deposes, he took measures which yielded new revenues and enhanced profitability for DMS. He drafted an aggressive growth plan, yielding hundreds of new projects. Copies of some 370 business cards and emails are proffered by the plaintiff as proof of his diligence and long hours of work. Likewise, his calendars attest to a hectic schedule. He claims to have established the electrical contracting branch of the business.

[16] The plaintiff received increases in his remuneration; in November 2014 of $10,000, and in July 2015 of $6,000. This was not, he deposes, in accordance with his entitlements or industry standards. He claims an entitlement to a commission of 1% of the value of projects as set out in his affidavit, at paragraphs 39 (a) – (oo) and as would arise from projects creditable to him after his termination. As well, he says, his salary was not increased in accordance with the circumstances of the responsibilities he assumed and his exemplary productivity. Information he downloaded from the internet indicates that business development managers earn annual salaries of between $33,000 and $125,000 and commissions of between $1,000 and $31,000.

[17] In his affidavit evidence, the plaintiff described some 15 occasions of having spoken with Mr. Ahuja in person, by telephone, or by email, asking, reminding or demanding payment of his commissions and salary. As was highlighted in cross-examination, however, he was unable to identify a specific conversation wherein he was promised any increases other than those he received over the course of his employment; the first, an increase in salary of $10,000, and the second, an increase of $6,000 in his vehicle allowance.

[18] I am satisfied that the defendant conducted a thorough search of its electronic records and of the laptop it identified as having been Mr. Jamshidi’s. The defendant extended an invitation to the plaintiff to identify any search mechanisms which would identify and/or recover any of the four emails Mr. Jamshidi claims to have sent making demands commensurate with what he says he was promised in salary and commission. The plaintiff did not respond. No such emails have been found.

[19] Mr. Jamshidi’s explanation as to why four emails he claims to have sent were not found was long, elaborate, convoluted, self-serving, and opaque. I find that he did not send any emails purporting to confirm that he and the defendant had agreed that he would be paid a commission, or more in salary than he was paid.

[20] A letter was written to the Bank of Nova Scotia with Mr. Ahuja’s signature and with his assistance and collaboration, confirming that Mr. Jamshidi’s gross income was about $85,000. Although he denied authorship, it is clear from emails originating from Mr. Jamshidi, that it was he who asked for, and, effectively authored this letter that falsified his income. The letter was essential for him to qualify for the credit he was seeking. His own evidence confirms that he was in difficult financial circumstances.

[21] Mr. Jamshidi was fired on January 14, 2016.

Conclusion

[22] The burden of proof that there are no genuine issues requiring a trial in respect of the declarations sought, rests upon the defendants as the moving parties. There is an evidentiary burden on the responding party, the plaintiff, to contest the moving party’s contentions.

[23] According to the principles cited earlier in these reasons, a person seeking to enforce a disputed oral contract carries both the legal and evidentiary burden of proving, on a balance of probabilities, that the alleged contract was made.

[24] This case turns in significant measure on the credibility of Mr. Jamshidi and Mr. Ahuja, because the terms of the contract of employment were agreed upon orally at a meeting between the two.

[25] A witnesses’ credibility should be tested against all of the facts with the preponderance of evidence and the probabilities surrounding the events in mind, not premised on a pure credibility contest between witnesses.

[26] I have no doubt that Mr. Jamshidi worked very hard and with expectations that his work would be rewarded. The Employment Application Form, which he completed, and the defendants’ payroll records, confirm that he was to be paid $55,000 in salary and provided a vehicle. He was in fact paid that sum and provided the vehicle. Where one might have expected there to be, there was no demand made by Mr. Jamshidi to be paid outstanding commissions or salary during his exit interview when he was terminated. There are no documents confirming a term that he was to be paid commissions. In claiming to have written four emails to Mr. Ahuja asserting claims to commissions, I have found reason to disbelieve Mr. Jamshidi, given the preponderance of evidence that any such emails would have been retrievable and Mr. Jamshidi’s incredible account as to how and why the letter to the Bank of Nova Scotia came to be. I have accepted the evidence of the defendant that no employee has ever been paid a commission in the position of Business Development Manager, including the predecessor to Mr. Jamshidi. In all the circumstances, considering all the evidence, I do not find that the plaintiff was entitled to remuneration beyond that which it was agreed he be paid, which was $71,000 as of the date of his termination.

[27] The moving parties shall have judgment in accordance with the relief sought, declarations that the plaintiff was not entitled to commissions as alleged at paragraph 15 of the Statement of Claim, nor increased compensation in respect of any changes in duties and responsibilities as alleged in paragraph 32.

[28] The defendants may make submissions as to costs within 15 days. The plaintiff shall respond within 20 days and reply shall be made within 5 further days. Costs submissions shall be brief and no more than 3 pages.

Justice A.M. Mullins

Released: November 29, 2018