Court File and Parties

COURT FILE NO.: CV-15-530978 DATE: 2019-06-18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JACQUES MINEAULT, Plaintiff AND: E.S. FOX LIMITED, Defendant

BEFORE: Sossin J.

COUNSEL: Larry J. Levine, Q.C., Counsel, for the Plaintiff Gerald Griffiths and Natasha Zervoudakis, Counsel, for the Defendant

HEARD: May 27, 2019

Reasons for Judgment

Factual and Procedural Overview

[1] The plaintiff, Jacque Mineault (“Mineault”), brings this action against the defendant, E.S. Fox Limited (“Fox”) for damages arising from wrongful dismissal.

[2] Mineault is a Boilermaker by trade and throughout the period at issue was a member of the International Brotherhood of Boilermakers Local 128 Union (“IBB Local 128”).

[3] Fox is a construction company which, among other clients, had a contractual relationship with Ontario Power Generation (“OPG”) to provide construction services at the Darlington Nuclear Power Plant (“Darlington”) in 2014-2015.

[4] Construction industry work performed at Darlington is governed by collective agreements between the Electrical Power Systems Construction Association (“EPSCA”) and various trade unions including IBB Local 128.

[5] A representative of Fox, Mark Hewitt (“Hewitt”), contacted Mineault in September, 2014, to offer him a position as General Foreman at its Vault Containment and Confinement Dryer site at Darlington.

[6] Mineault accepted the offer, and this was the first time he had served as a General Foreman on a project.

[7] Mineault testified that he was told the project would run through the fall of 2014 and was expected would be extended through to the late spring or early summer of 2015.

[8] Mineault commenced work on September 15, 2014. There is no evidence of any concern with Mineault’s performance in the role.

[9] On December 9, 2014, Mineault was approached by Fox’s superintendent on the project, Tim Gaudette (“Gaudette”), about taking on additional supervisory duties in relation to a heat exchanger team. Mineault ultimately told Gaudette that he could not take on these additional duties.

[10] Mineault was terminated on December 19, 2014.

[11] Mineault was without employment until March 26, 2015, when he started a new position in western Canada.

[12] On June 23, 2015, Mineault issued a statement of claim against Fox, seeking damages equivalent to his salary and benefits from the time of his termination until the time he commenced his new position.

[13] On July 23, 2015, Fox delivered a statement of defence, asserting Mineault was covered by a collective agreement between the EPSCA and IBB Local 128 (the “collective agreement”), which provided no requirement of notice or compensation upon termination other than four-hours’ notice or wages in lieu of notice.

[14] On September 22, 2015, Mineault delivered his reply, emphasizing that as a General Foreman, he fell outside of the coverage of the collective agreement and is entitled to rely upon common law damages for wrongful dismissal.

[15] The summary trial of this action was held on May 27, 2019.

Analysis

[16] There are three key questions to be addressed in this case:

a. Did Mineault enter into an oral agreement with Fox for a fixed term contract; b. Was the termination of Mineault by Fox governed by the terms of the collective agreement; and c. In light of the answers to these questions, what damages is Mineault entitled to?

[17] I address each question in turn.

A. Did Mineault Enter Into An Oral Agreement With Fox For A Fixed Term Contract?

[18] Only Mineault provided evidence of the conversation he had with Hewitt in September, 2014, which formed the basis of the oral agreement between Mineault and Fox.

[19] Mineault’s evidence is that he was hired for the duration of the project, which Hewitt stated was expected to extend until the late spring or early summer 2015.

[20] Mineault also testified that he had worked in various capacities on similar projects in the past, and that in every case his employment had been tied to the duration of a particular project.

[21] The Site Manager for Fox on the Darlington project, Fred Cox (“Cox”) produced the “Help Requisition - EPSCA” form filled out by Fox in seeking the services of Mineault. It indicates the duration of work would be 6-12 weeks. Fox takes the position that Mineault’s term of employment was for as long as he was needed in the General Foreman role within this range.

[22] Based on Cox’s evidence, it appears that Fox wished for Mineault to serve as General Foreman only for a period coinciding with the training of another employee, Carey Wood (“Wood”), who during the period of Mineault’s employment with Fox reported to Mineault. Cox gave evidence that this training period was approximately 12 weeks.

[23] There is no evidence that Fox communicated to Mineault the expectation that the duration of his employment was expected to be 12 weeks, or only until Wood was able to serve as General Foreman. Mineault testified that he understood the duration of his employment to be however long it took to complete the project, and that Hewitt told him the project would take until sometime in the late Spring or early Summer to complete.

[24] Mineault testified that his discussion with Hewitt mostly concerned compensation, and that they referred to the collective agreement as a baseline or template in order to determine his compensation as General Foreman, which was $48.14 per hour for an eight hour day, with additional increments for overtime. The increments correspond to how overtime is treated under Article 23.1 of the collective agreement (i.e. 1.5 times the hourly rate for the first 2 hours of overtime, and 2 times the hourly rate for any additional hours of overtime).

[25] Based on the evidence, I find on a balance of probabilities that Mineault was hired as a General Foreman on a fixed term contract for the duration of the project.

B. Was The Termination Of Mineault By Fox Governed By The Terms Of The Collective Agreement?

[26] Having found that Mineault was under a fixed term contact with Fox, the second question to be determined is whether termination of that contract was governed by the collective agreement, as argued by Fox.

[27] Article 1 of the collective agreement between the EPSCA and IBB Local 128 provides a recognition clause which sets out the bargaining unit under the agreement includes under 1.4. “Foreman, Assistant Foreman, Journeyman and Apprentices.” There is no dispute that General Foreman is not a classification covered by the collective agreement.

[28] There is no dispute about whether Mineault was subject to the terms of the collective agreement. By virtue of the recognition clause, he was not.

[29] The dispute arises with respect to which terms of the collective agreement were incorporated expressly or by implication into the oral agreement between Mineault and Fox.

[30] Mineault testified that the collective agreement was relevant only in (1) providing a floor in terms of calculating salary (that is, to provide the basis for the additional “bump” he would receive as General Foreman in comparison to the salary for other positions with less responsibility that were provided under the collective agreement), and (2) for providing a mechanism for determining the increments of overtime pay, and calculation of benefits. Mineault testified that he assumed the collective agreement would be the basis only for the “financials.”

[31] Fox takes a broader view of the relevance of the collective agreement. Cox testified that it was customary in the industry to use the collective agreement to govern the terms and conditions of work for the General Foreman position, and that only salary was negotiated separately. He stated in his affidavit (at para. 25):

In accordance with the custom on all EPSCA work and our relationship with Local 128, the Plaintiff’s rate of pay, his terms and conditions of employment, including his entitlements on termination, were in accordance with the Collective Agreement. The only change from the Collective Agreement compensation was to provide a bump in his hourly rate to compensate him for being a General Foreman.

[32] Cox’s evidence confirming this custom was based on his four decades of experience in the industry, and two decades of experience in construction and project management, including in the position of General Foreman and in positions supervising a General Foreman.

[33] Fox asserts this understanding is supported by the fact that Mineault was hired through the union hall (that is, Fox requested the referral of Mineault from IBB Local 128), and that he remained a member of IBB Local 128, and had union dues deducted throughout this period.

[34] Fox submits that based on this well-accepted custom in the industry, Mineault’s rights at termination are also to be determined with reference to the collective agreement, which provides only for four hours’ notice or wages in lieu of notice upon termination.

[35] I find that all the testimony provided was credible.

[36] I am satisfied that Mineault relied on the assumption that he would not be terminated without cause before the end of the project, and that he viewed his role as General Foreman as distinct from his earlier experience under collective agreements as a Journeyman and Foreman.

[37] Similarly, I am satisfied that Fox relied on the assumption that termination for Mineault as General Manager would be subject to the same four hour notice period as termination for other construction employees under the collective agreement.

[38] In other words, this case involves two parties relying on reasonable but inconsistent assumptions about a key term in an oral agreement.

[39] In such circumstances, however, where Fox seeks to rely on this term, the onus rests with it to establish that this term was part of the agreement. As Miller J.A. affirmed in Howard v. Benson Group Inc. (The Benson Group Inc.), 2016 ONCA 256 (at paras. 20, 22),

There is a common law presumption that every employment contract includes an implied term that an employer must provide reasonable notice to an employee prior to the termination of employment. Absent an agreement to the contrary, an employee is entitled to common law damages as a result of the breach of that implied term; Bowes v. Goss Power Products Ltd. 2012 ONCA 425, 351 D.L.R. (4th) 219, at para 23. This presumption can only be rebutted if the employment contract “clearly specifies some other period of notice, whether expressly or impliedly…

Of course, parties to a fixed term employment contract can specifically provide for early termination and, as in Bowes, specify a fixed term of notice or payment in lieu. However, and on this point the appellant and the respondent agree, if the parties to a fixed term employment contract do not specify a pre-determined notice period, an employee is entitled on early termination to the wages the employee would have received to the end of term…

[40] Fox argues that the provisions of the collective agreement in relation to termination (including the period of four hours notice) was an implied term in Mineault’s contract of employment, on the basis that it is a well understood custom in the construction industry.

[41] Additionally, it is not disputed that Mineault remained a member of IBB Local 128 and continued to pay his union dues throughout his period as General Foreman.

[42] Mineault testified that the collective agreement between the EPSCA and IBB Local 128 was relevant to his employment contract, as the financial aspects of the collective agreement represented the “floor” for his negotiations with Fox over salary. Additionally, the quantum of additional salary for overtime would be calculated based on the formula in the collective agreement.

[43] Mineault further testified that he had no prior experience as a General Foreman and no reason to expect the aspects of the collective agreement governing termination would apply to him notwithstanding that General Foreman was not a role subject to the collective agreement.

[44] Neither party was able to point to case law addressing the termination of a General Foreman in an analogous situation, or to case law addressing the custom in the construction industry of relying on provisions of a collective agreement for terms of employment for positions not subject to the collective agreement, such as General Foreman.

[45] The burden of establishing a balance of probabilities that the termination clause of the EPSCA and IBB Local 128 collective agreement was intended as an implied term of Mineault’s employment contract to govern termination lies with Fox. Such a term is particularly important to recognize expressly, as the impact of the term would be that Mineault could be terminated on four hours notice without any of the protections offered to employees governed by the collective agreement (such as grievance rights).

[46] Fox has not relied on any document or conversation in which reference to the termination clause in the collective agreement was conveyed to Mineault. While Cox testified that the custom in relation to reliance on the collective agreement terms was widely known, this evidence on its own is not sufficient to establish that the termination clause was an implied term of the contract of employment between Mineault and Fox for his role as General Foreman.

[47] Therefore, I find on a balance of probabilities that the termination clause in the collective agreement was not incorporated by implication in to the agreement between Mineault and Fox.

[48] This finding is a narrow one, confined to the facts proven during this trial. There may be other circumstances where employees who are not subject to a collective agreement nonetheless agree to be bound by its terms, whether expressly or as an implied term of an employment contract.

[49] In light of this analysis, termination in this case is governed by common law principles. As the uncontroverted evidence is that Mineault’s termination was not for cause, he will be entitled to damages. What remains in doubt is the quantum of those damages.

C. Mineault’s Entitlement to Damages

[50] Based on his wrongful dismissal, Mineault seeks damages at common law for the duration of the fixed term for which he was hired, until he mitigated those damages by commencing new employment.

[51] While this fixed term could stretch until the project was actually completed in the Spring of 2015, Mineault only seeks lost wages and benefits for the period between December 19, 2014 and March 26, 2015, when he started a new position. Mineault has calculated this amount as $43,000.00 in lost wages, and $7,150.00 in lost heath and pension benefits. Fox has not challenged Mineault’s calculation of damages if he is entitled to lost wages and benefits for this period.

[52] As an alternative submission to its primary reliance on the collective agreement, which would provide no entitlement to damages, however, Fox relies on the factors set out in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (“Bardal”), and subsequent case law, to argue a notice period or wages in lieu of notice of three weeks would be appropriate in the context of a 41 year old General Foreman, with three months experience in this role.

[53] Having found that the contract between Mineault and Fox was for a fixed term, however, the Ontario Court of Appeal has affirmed that damages are to be determined by the unpaid term of the contract, not the factors set out in Bardal. In Howard, the Court of Appeal confirmed that a fixed term employee who is wrongfully dismissed is entitled to damages equal to the unpaid wages remaining on the employee’s term.

[54] In this case, Mineault is seeking less than this amount in damages. Having mitigated his damages by taking alternate employment on March 26, 2015, he seeks damages from the period between his termination and the start of his new employment. Fox has not specifically challenged Mineault’s calculation of damages.

Conclusion

[55] For these reasons, I find Mineault has established that he was wrongfully dismissed as General Foreman by Fox. Mineault is entitled to $50,150.00 in damages, together with pre-judgment interest.

Costs

[56] If the parties cannot come to an agreement with respect to costs of this action, I will accept brief written submissions from the parties (of no more than three pages), together with a bill of costs, within 30 days of this judgment.

Sossin J. Released: June 18, 2019