Court File and Parties

COURT FILE NO.: 14-61333 DATE: 2018/12/14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Noah Rossman, Plaintiff AND Canadian Solar Inc. and Canadian Solar Solutions Inc., Defendants

BEFORE: Honourable Justice M. Labrosse

COUNSEL: Eytan B. Rip, Counsel for the Plaintiff Sean Foran, Aisling Flarity, Counsel for the Defendants

HEARD: June 27 and 28, 2018

Endorsement

Overview

[1] The Plaintiff has commenced this claim seeking damages for wrongful dismissal and the payment of a significant amount in commissions he claims are owed to him by the Defendants.

[2] The parties have brought competing motions for summary judgment. The Defendants moved first seeking the dismissal of the action or in the alternative, judgment against the Defendant Canadian Solar Solutions Inc. (“CSSI”) in favour of the Plaintiff in the amount of $16,560.00. The Plaintiff has brought a cross-motion seeking an order for partial summary judgment on the Plaintiff’s claim for damages for lost wages based upon a reasonable notice period.

[3] For the reasons that follow, I am of the view that there is no genuine issue requiring a trial on the issue of the Plaintiff’s cross-motion. This issue depends on the assessment of the termination provision in the August 2012 Employment Contract. That provision is void and unenforceable, as there is potential for non-compliance of this provision with the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). The Plaintiff is therefore entitled to reasonable notice of his termination and I fix the notice period at five months.

[4] As for the Defendants’ motion for summary judgment, I conclude that on the three issues raised, the Defendants have failed to demonstrate that there are no genuine issues that require a trial. There are significant gaps in the evidence to explain the Plaintiff’s employment with the Defendant, CSSI, and the applicability of the Entire Agreement Clause of the August 2012 Employment Contract. It does not in my view reflect the intentions of the parties when the August 2012 Employment Contract was entered into. If the Plaintiff was entitled to a commission, the evidence of the Defendants supports that the August 2012 Employment Contract was not intended to eliminate the Plaintiff’s entitlement to such a commission. There are important issues requiring a trial surrounding the Plaintiff’s entitlement to commissions resulting from the sale of a number of utility-scale solar projects together with the amount of those commissions. Those issues are not properly addressed under Rules 20.04(2.1) and 20.04(2.2).

Background Facts

[5] In 2008, the Plaintiff was working with DAI Inc., a consulting company that worked very closely with the Defendants. Part of DAI’s business was to secure interests in land on which the Defendants could establish large utility-scale solar projects.

[6] In April of 2010, the Plaintiff was told that his employment with DAI was being transferred to the Defendant, Canadian Solar Solutions Inc. Very little evidence was provided as to the reasons for the transfer of employment or the nature of the business relationships between DAI and the Defendants. The Plaintiff’s evidence is that he had very little information about the reason for the transfer of his employment. On these motions, the Defendants did not present any evidence on the transfer of employment from DAI to CSSI. The parties agree that the Plaintiff’s work with CSSI commenced in May of 2010.

[7] The Plaintiff entered into an employment agreement with CSSI on or about May 6, 2010 (the “First Employment Agreement”). He started as a Regional Sales Manager with a base salary of $67,000. The First Employment Agreement stated that, “it is the intent of the Employer that you participate in the Employers Sales Commission Policy. Complete details are outlined in our Sales Commission Policy”. The Sales Commission Policy did not exist in May 2010 and was only created in January 2011. The Plaintiff did not receive it until June 2011.

[8] The Sales Commission Policy defines a “Commissionable Sale” as follows:

“a sale of products where the full amount payable by the customer to the Company for the products sold, less any sales returns, discounts, warranty change, or rebates (“Sales Adjustments”), has been received in full by the Company.

“If a sale of products is made in one quarter but the full amount payable by the customer to the Company for the products sold, less any Sales Adjustments, is not received in full by the Company until a subsequent quarter, a Commissionable Sale will not be considered to have occurred until the subsequent quarter”

[9] The Sales Commission Policy does not define the words “product” or “products”. It defines two types of sales, “Modules-only sales” and “All other sales”. The Sales Commission Policy does not state that the sale of utility-scale solar projects are excluded from the “All other sales” category or otherwise from the policy. The Sales Commission Policy does not list any exclusions.

[10] In or about June 2010, the Plaintiff became involved in the Trans Canada deal, which was a sale by CSSI of eight utility-scale solar projects to Trans Canada for over $520 million dollars. CSSI made a profit of nearly $200 million dollars. There is no dispute that this was the largest deal in the company and that the Plaintiff played a key role in it.

[11] The Defendants take the position that the Sales Commission Policy does not apply to the Trans Canada deal as they were utility-scale solar projects as opposed to a module or product sale. The Defendants’ evidence is that no employee with the same commission clause contained in the First Employment Agreement was ever paid a commission on a utility-scale solar project. Some employees had contracts that included bonus clauses that paid them a lump sum payment for each of the Trans Canada deals that closed. The Plaintiff did not have a similar bonus clause in the First Employment Agreement. However, DAI was paid a commission for its role in bringing the Trans Canada deal to CSSI and the Plaintiff received a payment of $20,000 from DAI.

[12] The Plaintiff’s evidence is not challenged that during 2010 and 2011, he was dedicating the majority of his time to the Trans Canada deal. In his 2011 performance review, CSSI’s president, Milfred Hammerbacher, highlighted that the Plaintiff had one objective, to keep Trans Canada happy and that the Plaintiff played a key role in keeping both sides at the table. It was acknowledged that he played a key role in the largest deal in CSSI’s history.

[13] The Plaintiff states that the Trans Canada deal became official in late 2011 but the deals would not become commissionable until the individual utility-scale solar projects began closing. At this time and onwards into 2012 and 2013, the Plaintiff made the following inquiries about his entitlement to commissions on the Trans Canada deal:

− in or about January 2012, the Plaintiff met with Mr. Hammerbacher about his entitlement to a commission for the Trans Canada deal and Mr. Hammerbacher told him that he did not think payment of a commission would be possible; − in or about July 2012, the Plaintiff spoke with Greg Vervais, the Vice-President of Human Resources for CSSI, about his entitlement to a commission in the amount of $11,000,000.00. Mr. Vervais responded that no commissions could be payable until the revenue was recognized on the Trans Canada deal and that CSSI would not pay the amount of commission that the Plaintiff was claiming; − in mid-2013, the individual utility-scale solar projects that comprised the Trans Canada deal began closing. The Plaintiff requested the payment of his commission from the Human Resource Department. Colin Parkin, the General Manager of CSSI, responded that the Plaintiff’s work only resulted in a Letter of Intent and that he was therefore not entitled to a commission.

[14] On August 22, 2012, the Plaintiff was sent a new employment contract that transferred him into a project management role with an entitlement to a bonus but no commissions. Prior to signing the new employment contract that was dated August 22, 2012, the Plaintiff had a discussion with Greg Vervais about the contract and the Plaintiff was told that the new salary was non-negotiable and that the Trans Canada commissions would be dealt with later. The Defendants did not dispute this evidence.

[15] Prior to signing the August 22, 2012 employment agreement (the “Second Employment Agreement”), the Plaintiff admitted to having received advice from his lawyer. He also discussed the matter with his brother-in-law who was in-house counsel for a corporation. The Plaintiff returned the signed version of the Second Employment Agreement on August 29, 2012.

[16] Throughout the discussions that the Plaintiff had with the various officers of CSSI, there is no evidence that he was advised that the Trans Canada deal was not commissionable or that he had waived his entitlement to those commissions when entering into the Second Employment Agreement. Those positions were only taken in the course of this litigation. On discovery, Mr. Parkin’s evidence, on behalf of the Defendants, was that he would have honoured commissions earned that had not yet matured notwithstanding the release that forms part of the Entire Agreement Clause in the Second Employment Agreement.

[17] The Plaintiff was terminated without cause on February 12, 2014. At the time of his termination, he was 33 years of age and had an annual salary of $82,500.00 with benefits and a bonus plan worth up to 20 percent of his base salary. He secured suitable alternate employment in March of 2016.

[18] The Plaintiff has filed a jury notice in this action.

Issues on Defendants’ Motion for Summary Judgment

[19] On the Defendants’ motion for summary judgment, three issues are raised:

− is the Entire Agreement Clause contained in the Second Employment Agreement enforceable? − was the Plaintiff’s claim to commissions from the Trans Canada deal included under the scope of the Entire Agreement Clause contained in the Second Employment Agreement? − is the Termination Clause contained in the Second Employment Agreement enforceable?

[20] It is the Defendants’ position that an affirmative answer to these three questions leaves this court to conclude that there are no genuine issues requiring a trial and that the Plaintiff’s claim should be dismissed with costs payable to the Defendants. In the alternative of the dismissal of the claim, judgment should be granted against CSSI in favour of the Plaintiff in the amount of $16,560.00 on the basis that this amount reflects the maximum bonus payment pursuant to the Second Employment Agreement.

The Law on Motions for Summary Judgment

[21] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), provides that summary judgment shall be granted where there is no genuine issue requiring a trial. In determining whether there is a genuine issue requiring a trial, Rule 20.04(2.1) grants certain fact‑finding powers and Rule 20.04(2.2) allows for a mini‑trial to be held to receive oral evidence from one or more parties.

[22] On a motion for summary judgment, the Court must first determine if there is a genuine issue requiring a trial based only on the evidence before the Court. If there appears to be a genuine issue requiring a trial, the Court should then determine if the need for a trial can be avoided by using the fact‑finding powers under Rules 20.04(2.1) and 20.04(2.2).

[23] The leading case on the use of summary judgment is Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, where the Supreme Court of Canada stated:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[24] As set out in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 33, “if the court cannot grant judgment on the motion, the court should decide those issues that can be decided, … identify the additional steps that will be required to complete the record… seize itself of the further steps required to bring the matter to a conclusion.”

[25] The issue of the enforceability of a termination clause can be determined as part of a summary judgment motion: see Andros v. Colliers Macaulay Nicholls Inc., 2018 ONSC 1256, 46 C.C.E.L. (4th) 207, at paras. 8-12.

[26] The Court of Appeal has recently weighed in on the appropriateness of motions for partial summary judgment in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, noting that the Court must assess the risk of duplicative or inconsistent findings. Even more recently in Mason v. Perras Mongenais, 2018 ONCA 978, the Court of Appeal has again cautioned against the use of motions for partial summary judgment and stated that the use of summary judgment must lead to a fair and just adjudication. Furthermore, the Court of Appeal concludes that “summary judgment remains the exception, not the rule”: see Mason at para. 44.

[27] While not dispositive of the issue, the Court must consider whether a jury notice has been filed before exercising its fact-finding powers under Rule 20.04(2.1): see McDonald v. John Doe, 2015 ONSC 2607, 126 O.R. (3d) 211, at para 45.

Analysis on Defendants’ Motion for Summary Judgment

The Evidentiary Record

[28] The parties agree on the three issues for consideration in the Defendants’ motion for summary judgment. The first step in the analysis of each issue is for the Court to determine if any of the three issues can be decided based on the record that is before the Court. If there remain genuine issues that require a trial, the Court must then determine if the need for a trial can be avoided by using the fact‑finding powers under Rules 20.04(2.1) and 20.04(2.2).

[29] An initial observation must be made with respect to the evidentiary record that is before the Court. Clearly, it is lacking and there are important evidentiary gaps that leave the Court to question the factual circumstances leading up to important issues in this case.

[30] Firstly, there are the circumstances that led to the Plaintiff’s employment being “transferred” from DAI to CSSI. The Plaintiff’s evidence was that he was told that his employment was being transferred but he has little knowledge of the relationship between DAI and CSSI and how or why his employment was transferred. This evidence is available to the Defendants and they chose not to explain it despite the obvious limits in the Plaintiff’s knowledge. This results partly from the Defendants relying on an affidavit from a clerk at the Defendants’ lawyers’ office – clearly a person with no direct evidence. Her affidavit is limited to citing portions of the Plaintiff’s discovery and attaching copies of various documents. The second affidavit filed by the Defendants is an affidavit by Gary Robertson, the Vice-President of Human Resources, Energy Group, for the Defendant Canadian Solar Inc. (“CSI”). He was aware that the transfer of the Plaintiff from DAI to CSSI was an issue in the litigation and he chose not to ask anyone at CSI or CSSI for any particulars of how the Plaintiff’s employment moved from DAI to CSSI in 2010.

[31] Mr. Robertson does not appear to have been involved in any of the important communications with the Plaintiff at the relevant times as his employment with CSI began after the Plaintiff had been terminated. Mr. Robertson’s affidavit provides limited insight into the corporate activities of CSI and CSSI. He attempts to characterize the evidence of the Plaintiff as being inaccurate where the Plaintiff describes his understanding of the roles played by DAT, CSI and CSSI. Mr. Robertson provides few additional details and certainly does not clarify the corporate picture. The lack of direct information from Mr. Robertson becomes evident at para. 9 of his affidavit where he fails to accurately break down the amounts paid to the Plaintiff on termination by referring to “and an additional amount” for the unaccounted balance paid to the Plaintiff. Details were only provided as part of answers to undertakings where his original evidence was corrected.

[32] Secondly, the circumstances leading up to the signature of the Second Employment Agreement are not properly addressed by the Defendants. Once again, the Plaintiff provided the limited information he retained from what happened back in August 2012. The Defendants have not presented evidence about what led up to the signature of the Second Employment Agreement or the intention of the Defendants in requiring that it be signed by the Plaintiff. The Defendants have not indicated that this evidence was not available. At discovery, Colin Parker had little recollection about the details of what happened at the time of the execution of the Second Employment Agreement.

[33] The Court can only conclude that the Defendants have chosen not to provide this evidence to the Court. In argument during the motion, the Defendants tried to blame the Plaintiff for not having summonsed some or all of the individuals who played a role at the relevant times such as Mr. Hammerstram, Mr. Vervais or Mr. Parkin. While Mr. Parkin was produced for Discovery, the Defendants did not provide any valid reason for not having presented evidence from the individuals who were directly involved with the Plaintiff at the relevant times.

Issue 1: Enforceability of the Entire Agreement Clause

[34] The Entire Agreement Clause from the Second Employment Agreement reads as follows:

14. Entire Agreement 14.01 This document constitutes the entire agreement between the parties with respect to the employment and appointment of the Employee and any and all previous agreements, written or oral, express or implied, between the parties or on their behalf, relating to the employment and appointment of the Employee by the Employer, are terminated and cancelled and each of the parties releases and forever discharges the other of and from all manner of actions, causes of action, claims and demands whatsoever, under or in respect of any agreement. 14.02 The Employee expressly acknowledges and agrees that unless otherwise expressly agreed in writing by the Employer, subsequent to execution of this Agreement by the parties hereto, the Employee shall not be entitled by reason of your employment by the Employer or by reason of any termination of such employment, to any remuneration, compensation or benefits other than as expressly set forth in this Agreement.

[35] When considering the enforceability of exculpatory provisions in contracts and in this case, the Entire Agreement Clause in the Second Employment Agreement, both parties agree that the approach set out by the Supreme Court of Canada in Tercon Contractors Ltd. v. British Columbia (Minister of Transportation & Highway), 2010 SCC 4, [2010] 1 S.C.R. 69, applies. That approach calls for the Court to consider the following three questions:

(1) Did the parties intend for the exclusion clause to apply to the circumstances of the particular case? This question depends on the court’s interpretation of the intention of the parties as expressed in the contract. (2) If the clause applies, was it unconscionable? (3) If the clause applied and was not unconscionable, was it contrary to overriding public policy?

[36] Both parties also rely on Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633. In that case, the Supreme Court of Canada directed the Court to read a 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 the formation of the contract.

i) Intention

[37] The Court must look to the intent of parties as expressed in the contract. To do so, there must also be an understanding of the factual circumstances surrounding the execution of the Second Employment Agreement. A full understanding of the factual matrix is hampered by the fact that the Defendants have not presented a full evidentiary picture of the circumstances that led to the execution of the Second Employment Agreement. Why was the Plaintiff’s employment changed? Why was his remuneration package changed to a bonus as opposed to commissions? Why is the Second Employment Agreement silent on the outstanding entitlement to commissions when the Defendants would have been fully aware that the commissions were in issue? These are all questions that the Defendants have not addressed.

[38] When we look to the Second Employment Agreement, the reference in para. 14.01 is to “any and all previous agreements, written or oral, express or implied”. However, given the very important issue of the outstanding commissions, the contract is explicitly silent on the issue of commissions.

[39] The Plaintiff relies on McNeely v. Herbal Magic Inc., 2011 ONSC 4237, 89 B.L.R. (4th) 226, in support of his position that if the Entire Agreement Clause was meant to oust any prior discussions about claims to outstanding commissions, the agreement should have done so explicitly. I agree, and I am of the view that it is particularly so when the issue of those commissions was clearly on the table and had not been resolved.

[40] I am therefore unable to conclude that the parties intended the Entire Agreement Clause to apply to the issue of the Plaintiff’s claim for commissions for the following reasons:

a. the Entire Agreement Clause makes no mention of outstanding commissions; b. the Entire Agreement Clause refers only to “any and all previous agreements” and is not demonstrative of an intention to oust any prior oral representations or discussions regarding outstanding commissions; and c. the Entire Agreement Clause does not refer to previous understandings, representations, warranties, negotiations or discussions: see McNeely at para 19.

[41] Thus, there is a genuine issue requiring a trial to interpret the enforceability of the Entire Agreement Clause.

[42] While the analysis of intent at this stage is limited to the intention of the parties as reflected in the Second Employment Agreement, my conclusion is supported by the evidence on discovery of Mr. Parkin who confirmed that the intention of the Second Employment Agreement was not to end an entitlement to commissions that had not yet matured: see the Transcript of the Discovery of Colin Parker dated May 5, 2016, Q. 421-422 at p.148.

ii) Unconscionability

[43] While I have already concluded that there is a genuine issue requiring a trial based on the applicability of the Entire Agreement Clause to extinguish a right to the outstanding commissions, I am of the view that there are also issues requiring a trial surrounding the unconscionability of the Entire Agreement Clause if it were deemed to apply to the outstanding commissions.

[44] The unconscionability analysis focuses on the circumstances surrounding the formation of the contract and whether there was unequal bargaining power between the parties: see Tercon at paras. 122-123.

[45] Once again, I highlight the absence of proper evidence having been presented by the Defendants to allow the Court to fully understand the circumstances leading up to the signing of the Second Employment Agreement. The Plaintiff stated that he felt pressured to accept the terms of the Second Employment Agreement and he was told that certain issues such as remuneration were non-negotiable. He felt like if he did not sign the new employment agreement, he would lose his job and never see any commissions. While the Plaintiff was concerned that the new employment contract was an attempt to oust his entitlement to the Trans Canada commissions, Mr. Vervais left him with the impression that his claim to commissions would remain intact regardless of the new employment agreement. The Defendants did not present evidence to contradict the Plaintiff’s version of this discussion with Mr. Vervais.

[46] As such, the Plaintiff’s evidence on the circumstances leading up to the Second Employment Agreement has not been challenged.

[47] There is no doubt that the fact that the Plaintiff spoke to his lawyer and received advice prior to signing the Second Employment Agreement is highly relevant to the analysis: see Ronald Elwyn Lister Ltd. v. Dunlop Canada Ltd. (1978), 19 O.R. (2d) 380 (H.C.), at para. 88. However, it does not preclude the application of the inequality of bargaining power principle. Here, the Plaintiff provided his evidence of how he felt at the time he was being asked to sign the Second Employment Agreement. In addition, Mr. Parkin’s evidence was that they were trying to find a way to keep the Plaintiff employed. This supports the Plaintiff’s evidence that he felt like if he did not sign the new agreement, he would be terminated. There is therefore an evidentiary basis to support a finding of inequality of bargaining power. A full evidentiary record is required to properly assess this issue.

[48] As a result of my conclusions on the first two steps of the analysis for interpreting the exculpatory provisions of the Second Employment Agreement, I need not deal with the third step of assessing if the Second Employment Agreement is contrary to public policy.

Issue 2: Was the Plaintiff’s claim to commissions included in the scope of the Entire Agreement Clause?

[49] As previously discussed, the Defendants have failed to adduce proper evidence on the circumstances leading to the formation and execution of the Second Employment Agreement. There are a number of outstanding questions that have not been addressed.

[50] Furthermore, while I accept that the Court must read the contract as a whole, there remains an important issue to explore and that is why the release provision makes no mention of the outstanding claim to commissions. The evidence suggests that this was the most important outstanding issue surrounding the Plaintiff’s employment in August of 2012, and therefore would have been fresh in Mr. Vervais’ mind. Yet, the Second Employment Agreement is silent on this issue.

[51] When considering the Court of Appeal for Ontario’s analysis in Biancaniello v. DMCT LLP, 2017 ONCA 386, 138 O.R. (3d) 210, at para. 42, the meaning of the release provision is certainly wide as it uses the general wording that “all previous agreements...are terminated and cancelled and each of the parties releases and forever discharges the other of and from all…claims…in respect of any agreement.” However, those words are not to be looked at in a vacuum and the surrounding circumstances can be considered to understand the meaning of the release.

[52] The evidence before the Court is that paras. 9 and 14 in both the First Employment Agreement and the Second Employment Agreement mirrored each other. Specifically, there is no evidence that para. 14.01 was drafted in contemplation of the outstanding claim for commissions. In effect, the evidence of Mr. Parkin is to the contrary and that para. 14.01 was not drafted to bring an end to any valid claim to a commission.

[53] When considering what was in the contemplation of the parties in August 2012, there is no evidence to support that the goal was to wipe the slate clean between the Plaintiff and the Defendants. The evidence is to the contrary. There is therefore a genuine issue requiring a trial as to what was in the contemplation of the parties at the time of the execution of the Second Employment Agreement.

[54] Once again, the Defendants’ argument on this point flies in the face of the evidence of Mr. Parkin that the Second Employment Agreement was not intended to remove an entitlement to commissions that had yet to mature and the same applies to the release portion of this provision. Why the parties did not make specific reference to the claim for commissions is an issue that remains outstanding.

[55] On the evidence before me, the Plaintiff advised Mr. Vervais days before the execution of the Second Employment Agreement of his intention to pursue the commissions. There is no evidence that the parties negotiated the salary increase in the Second Employment Agreement in consideration of the release to the claim for commissions.

[56] The Defendants rely on Albert Bloom Ltd. v. Intermetco Ltd. (1992), 8 O.R. (3d) 625 (Gen. Div.), in support of their position that the Plaintiff must have fully understood that he was signing a release of his right to the commissions from the Trans Canada deal. I disagree. The fact that the Plaintiff confirmed his claim to commissions roughly two weeks prior to executing the Second Employment Agreement is evidence to the contrary. I am of the view that the evidence suggests that the Plaintiff did not believe that the Second Employment Agreement would have an effect on his entitlement to claim commissions from the Trans Canada deal.

[57] Clearly, there is a genuine issue requiring a trial surrounding the release portion of the Entire Agreement Clause and if it was meant to apply to the Plaintiff’s outstanding claim for commissions from the Trans Canada deal.

Issue 3: Is the Termination Clause Enforceable?

[58] This final issue applies to both the Defendants’ motion for summary judgment and the Plaintiff’s cross-motion for summary judgment. It is dealt with below.

Analysis on Plaintiff’s Cross-Motion for Partial for Summary Judgment

[59] The Defendants state that there is no genuine issue as to the enforceability of the termination clause in the Second Employment Agreement. Conversely, the Plaintiff states that there is no genuine issue that the termination clause is unenforceable and that the Court is in a position to assess the reasonable notice to which the Plaintiff was entitled to.

[60] The termination clause in both the First Employment Agreement and the Second Employment Agreement appear to be identical. The parties did not highlight any differences. The relevant portions read as follows:

9. Termination of Employment 9.01 The parties understand and agree that employment pursuant to this agreement may be terminated in the following manner in the specified circumstances: (c) by the Employer, after the probation period, in its absolute discretion and for any reason on giving the Employee written notice for a period which is the greater of: (i) 2 weeks, or (ii) In accordance with the provision of the Employment Standards Act (Ontario) or other applicable legislation, or on paying to the Employee the equivalent termination pay in lieu of such period of notice. The payments contemplated in this paragraph include all entitlement to either notice of pay in lieu of notice and severance pay under the Employment Standards Act Ontario. In the event the minimum statutory requirements as at the date of termination provide for any greater right or benefit than that provided in this agreement, such statutory requirements will replace the notice or payments in lieu of notice contemplated under this agreement. The Employee agrees to accept the notice or pay in lieu of notice as set out in this paragraph as full and final settlement of all amounts owing by the Employer on termination, including any payment in lieu of notice of termination, entitlement of the Employee under any applicable statute and any rights which the Employee may have at common law, and the Employee thereby waives any claim to any other payment or benefits from the Employer. Benefits shall cease 4 weeks from the written notice.

[61] The Defendants’ state that the termination is clear and unambiguous and is thus enforceable. However, the Defendants are unable to reconcile the final sentence in paragraph 9.01: “Benefits shall cease 4 weeks from the written notice”. The Defendants state that the saving provision found earlier in this same paragraph of the termination clause goes to cure any attempted contracting out of a minimum standard that may be read into the last sentence.

[62] Once again, there is no evidence from the Defendants as to the intent of the parties to include the final sentence of the termination clause. In other parts of their argument, the Defendants rely on the well-established law that parties mean what they say in their contracts: see Environs v. Environs, 2018 ONSC 1130, at para. 90. Here, the Defendants seek to have the Court ignore the final sentence in favor of the saving provision. However, the Defendants are unable to explain the reason why the last sentence was included in the termination clause but they try to argue that the termination provision is unambiguous.

[63] This final sentence is clearly either ambiguous as it flies in the face of the rest of the provision or it is an attempt to contract out of the minimum standards under the ESA by limiting benefits to four weeks regardless of the term of employment.

[64] It is well-established that on termination, an employee is presumptively entitled to common law notice of termination unless that presumption is rebutted by an agreement that clearly specifies some other period of notice: see Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, at para 20. In addition, the intention of the parties to displace an employee’s common law notice entitlement must be clearly and unambiguously expressed in the contractual language used by the parties: Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, 134 O.R. (3d) 481, at para. 40.

[65] As set out in Garreton v. Complete Innovations Inc., 2016 ONSC 1178, the employment contract must be considered at the time it is executed and if the termination provision is not onside with the provisions of the ESA, then it is void and unenforceable.

[66] Here, the Plaintiff was hired for an indefinite term and as such, if he were to work for CSSI for more than four years, his entitlement to benefits could exceed four weeks. The ESA mandates that benefit contributions are to continue through the entire statutory notice period to a maximum of eight weeks in the case of an employee with eight years or more of service. Thus, the final sentence of the termination clause does not respect the ESA minimum standard.

[67] The Defendants rely on the portion of the termination clause deemed to be a “saving provision” as it states that the employee is entitled to any greater right or benefit provided for in the minimum statutory requirements. The Defendants state that Oudin v. Centre Francophone de Toronto, Inc., 2016 ONCA 514, 34 C.C.E.L. (4th) 271, supports a submission that where there is a saving provision such as the one found here, an employment agreement should be modified or nullified to the extent necessary to comply with the relevant statutes and regulations.

[68] I disagree. None of the cases relied upon by the Defendants have an express provision that clearly limits a statutory benefit in a manner that is contrary to the ESA as in this case. In Oudin, the motion judge understood that the termination provision referred only to “minimum notice” but interpreted the entirety of the agreement as having the intention to respect the ESA and that there was no intention to contract out of the minimum entitlements under the ESA.

[69] The distinction in the present case is that there is explicit wording to the contrary. The saving provision refers to “any greater right or benefit than that provided in this agreement, such statutory requirements will replace the notice or payments in lieu of notice contemplated under this agreement.” This same termination clause goes on to specifically and unequivocally limit benefits to four weeks from the written notice of termination.

[70] While I accept that this provision is at odds with the saving provision, it is not for this court to rewrite the termination provision. As stated in Environs, parties mean what they say in their contracts.

[71] There is limited evidence about the preparation of the Second Employment Agreement and the intent of this final sentence of clause 9.01. It certainly leaves open the possibility that the Defendants wished to specifically carve out benefits from the Plaintiff’s entitlement on termination and limit that entitlement to a maximum of four weeks. Such an intention clearly renders the termination provision void and unenforceable.

[72] In addition, the Defendants have presented no evidence suggesting that the last sentence in the termination clause was included in error or that it was meant to have a limited application. While such evidence may or may not have been relevant to this decision, there is no such evidence to even consider.

[73] I conclude that the termination clause does not operate to displace the presumption that the Plaintiff is entitled to common law notice of termination.

[74] I now come back to the appropriateness granting partial summary judgment on this issue. In Butera and in Mason, the Court of Appeal for Ontario has cautioned against using partial summary judgment in cases where there is a risk of duplicative or inconsistent findings at trial. The Court must also consider whether granting partial summary judgment is advisable in the context of the litigation as a whole.

[75] I agree with the Plaintiff that the issue of the enforceability of this termination clause and the calculation of the proper notice period are properly determined by way of a summary judgment motion in this case for the following reasons:

a. the most significant issue in this case surrounds the Plaintiff’s entitlement to commissions and the interpretation of para. 14 of the Second Employment Agreement; b. the issue of the validity of the termination provision is an isolated issue and not relevant to the commission issue; c. the analysis of the termination provision and its enforceability is a pure issue of contractual interpretation and is not dependent on findings of fact that may be made at trial. While the evidence surrounding the reason for the Defendants addition of the final sentence of the termination provision may have been explored at trial, this evidence was not presented in these motions. Given the identical wording in the First Employment Agreement, the Court is left to doubt that any evidence is available as to why that last sentence was included in the termination provision; d. if this issue is disposed of by summary judgment, it will no longer be relevant to the remaining issues at trial. This should be contrasted with the facts in Mason where the issue of solicitor negligence would remain an essential part of the trial; e. finally, in the context of the entire litigation, the matters going forward to trial are simplified if the issues surrounding the termination provision and the reasonable notice are dealt with by summary judgment. This will allow for a trial that is solely focused on the Plaintiff’s entitlement to a commission.

[76] There is therefore no genuine issue requiring a trial with respect to the validity of the termination clause as it is void and unenforceable.

Availability of Rules 20.04(2.1) and 20.04(2.2)

[77] Having concluded that there are genuine issues requiring a trial with respect to the applicability of the Entire Agreement Clause and the release to the Plaintiff’s claim for commissions, I must consider if the need for a trial can be avoided by using the fact-finding powers under Rules 20.04(2.1) and 20.04(2.2).

[78] With respect to Rule 20.04(2.1), the poor evidentiary record previously identified in this decision does not allow me to make findings of credibility that would avoid the need for a trial. The evidentiary record relating to the entitlement to commissions on the sale of the utility-scale solar projects requires evidence from the individuals who were directly involved in the drafting and execution of both employment agreements. This evidence is simply not available on the current record.

[79] When considering the possibility of a mini-trial under Rule 20.04(2.2), this is not a case where some viva voce evidence by either party would avoid the need for a trial. It is clear that there is important historical evidence required by the individuals directly involved in the execution of the two employment agreements to properly understand the scope of the Entire Agreement Clause. Some may still be employed by the Defendants but others are clearly no longer with the Defendants. Such evidence will be incorporated with the evidence of the Sales Commission Policy and how it did or did not apply to utility-scale solar projects. All of this evidence must properly be dealt with at a trial dealing solely with the commission issue.

[80] Finally, the Plaintiff has served a jury notice and I do not see any grounds that would merit taking away from the fact-finding function of a jury.

Plaintiff’s Entitlement to Reasonable Notice of Termination

[81] The Defendants confirm that there is no issue as to mitigation of damages by the Plaintiff. As such, the only remaining issue is the calculation of the notice period.

[82] The Plaintiff argues that the notice period should include the time the Plaintiff was employed at DAI as he was never properly terminated from DAI with his employment being “transferred” to CSSI. However, any rights he may have had following the transfer or termination of his employment from DAI have clearly expired. If the Plaintiff had an entitlement from the transfer of his employment from DAI to CSSI, he should have pursued such rights in 2010.

[83] Furthermore, the Plaintiff has not argued, nor is there any basis to argue in my view that DAI or CSSI were related or common employers. This was not pursued by the Plaintiff in argument and the Plaintiff conceded in argument that it did not meet the criteria set out in Downtown Eatery (1993) Ltd. v. Ontario (2001), 54 O.R. (3d) 161.

[84] While I accept that the details of the “transfer” of the Plaintiff’s employment from DAI to CSSI is information in the hands of the Defendants, the Plaintiff has failed to provide an adequate evidentiary or legal basis for his position that his notice period should extend to his employment with DAI. It is not sufficient in my view to simply place the onus on the Defendants and ask the Court to draw an inference in the Plaintiff’s favour.

[85] The circumstances surrounding the transfer from DAI to CSSI is an outstanding issue. However, I must ask myself if it is an issue that requires a trial. It is not.

[86] Based on the available evidentiary record, the Plaintiff has brought this motion and asks the Court to conclude that his notice period includes his employment with DAI. The Plaintiff has therefore left it to the Court to decide based on the available evidence. Since the Defendants did not provide the details of the transfer of employment, the Plaintiff may have chosen not to proceed with his cross-motion and could have left the issues of the termination clause and the notice period to be dealt with at trial. He has chosen to proceed and asks the Court to fix the notice period based on the available evidence. I therefore conclude that there is insufficient evidence to allow me to conclude that the Plaintiff’s notice period should include his years employed by DAI. As such, the proper notice period would begin on May 6, 2010, and end on February 12, 2014, for a period of three years and nine months.

[87] In the calculation of the notice period, both parties refer me to the factors in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (H.C.), at para. 21. I have considered the cases relied upon by the Plaintiff and the Defendants in their tables. The Plaintiff’s circumstances lie somewhere in between. At the time of his termination, he was 33 years of age. He was earning $82,500 per year with benefits and the opportunity for a bonus of up to $16,500.00. He was employed in a sales and project/relationship management position. The Plaintiff concedes that his position was not a management position within CSSI but that it came with a fair bit of responsibility. Mitigation is not an issue and it took the Plaintiff over two years to find suitable alternate employment. In considering the Plaintiff’s age, his management position, the extensive efforts made to find employment and that mitigation is not an issue, I agree with the Defendants that the applicable range would be from three to five months. Given that the Plaintiff was in a position that carried a fair amount of responsibility and that he was unemployed for a significant period of time before finding suitable employment, I conclude that the Plaintiff should be at the high end of the range. The Plaintiff is entitled to five months’ pay in lieu of notice of termination, which should include his bonus entitlement.

[88] If the parties are unable to arrive at the proper calculation of the Plaintiff’s entitlement given the amounts paid to date, I may be contacted and we can determine the exact entitlement by conference call.

Disposition

[89] For the reasons set out above, I make the following findings:

(a) Summary judgment is granted to the Plaintiff on the issue of the termination provision being void and unenforceable; (b) Summary judgment is granted to the Plaintiff on the calculation of the proper notice period being five months; (c) The Defendants’ motion for summary judgment is dismissed.

[90] In the event that the parties are unable to agree as to costs, they may make written submissions to me. The Plaintiff will have 30 days from the date of this Endorsement and the Defendants will have 30 days thereafter to respond. Each costs submission shall be no longer than five pages in length, excluding the Costs Outline. The parties shall comply with Rule 4.01 of the Rules of Civil Procedure.

Justice M. Labrosse Date: 2018/12/14