COURT FILE NO.: CV-19-1647

DATE: 20221221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GREG STEELE

Plaintiff

– and –

THE CORPORATION OF THE CITY OF BARRIE

Defendant

G. Sills and A. Goldberg, for the Plaintiff

P. Krysiak, for the Defendant

HEARD: May 24-25, 2022

REASONS FOR JUDGEMENT

McCarthy J.

Introduction

[1] The Plaintiff seeks the amount of $66,355 for wrongful dismissal against the Defendant City. The Plaintiff asserts a claim for eight months’ pay in lieu of notice as well as punitive damages.

[2] The Plaintiff was employed by the City from June 4, 2014, until December 31, 2017. His position was Manager, IT Planning & Portfolio.

[3] The parties disagree on the nature of the Plaintiff’s employment with the City; the key issue for determination is whether the Plaintiff was employed on a fixed-term contract or on a permanent indefinite basis.

The Position of the Plaintiff

[4] The Plaintiff claims that his employment was terminated without cause and without reasonable notice or pay in lieu thereof. The Plaintiff asserts that he was a permanent employee because his employment agreement was ambiguous as to term. Even if he was originally a fixed-term employee, the Plaintiff argues that the City’s conduct and representations over the course of his employment led him to understand that his employment was indefinite and therefore permanent.

The Position of the Defendant

[5] The Defendant asserts that the Plaintiff was employed under a Fixed-Term of Employment (“FTE”) contract for an initial two-year period (June 5, 2014, to June 4, 2016); that the FTE was extended on four separate occasions; and that eventually the FTE expired, or put another way, was not extended beyond December 31, 2017. The City did not owe the Plaintiff an obligation to provide him with severance pay, notice of termination, or pay in lieu thereof.

The Employment Agreement and Extension Notices

[6] The initial employment agreement between the Plaintiff and the Defendant contained, inter alia, the following term:

The expected duration of your temporary employment is expected to be from June 5, 2014 to June 3, 2016 (approximately 2 years)

[7] Thereafter, the Plaintiff received four consecutive extension notices, the first of which was dated May 4, 2016, and which read:

Further to your letter dated June 4, 2014, this is to confirm that your temporary full-time position as Manager, IT Planning and Portfolio in the Information Technology Department has been extended up to December 31, 2016

[8] The subsequent extension notices contained the same content and set out the new relevant extension dates: November 12, 2016, extending to July 1, 2017; June 21, 2017, extending to September 30, 2017; and October 5, 2017, extending to December 31, 2017.

The Law

[9] The protections afforded to employees under the Employment Standards Act, 2000, S.O. 2000, c. 41 (ESA) are generally unavailable to persons working under a fixed-term agreement. For that reason, the common law has required unequivocal and explicit language in fixed-term arrangements; ambiguities in such agreements will be interpreted strictly against the employer’s interest: see Ceccol v. Ontario Gymnastics Federation (2001), 2001 CanLII 8589 (ON CA), 55 O.R. (3d) 614 (Ont. C.A.). The court explained the rationale for this approach at para. 26 of its decision:

Employers should not be able to evade the traditional protections of the ESA and the common law by resorting to the label of ‘fixed-term contract’ when the underlying reality of the employment relationship is something quite different, namely, continuous service by the employee for many years coupled with verbal representations and conduct on the part of the employer that clearly signal an indefinite-term relationship.

[10] While unequivocal and explicit language is required to establish a fixed-term of employment contract, for ambiguity to be present there needs to be two or more reasonable interpretations that a contract can bear. The mere presence of imprecise language does not necessarily mean there is ambiguity in a contract when construed as a whole: see 908593 Ontario Limited v Atradius, 2022 ONSC 2517, at para. 21.

[11] A court should not strain to create ambiguity where it does not exist. As stated by Lederer J. in Cook v. Hatch Ltd., 2017 ONSC 47, at para. 25, the court is, “…to look for the true intentions of the parties, not to disaggregate the words looking for any ambiguity that can be used to set aside the agreement and, on that basis, apply notice as provided by the common law”.

[12] The existence of a definite or fixed-term contract of employment is a question of fact, based on both the words used and the reasonableness of the parties’ assumptions from those words: see Dyer v. Mekinda Snyder Partnership Inc. (1998), 1998 CanLII 14847 (ON SC), 40 O.R. (3d) 180 at para. 26.

Analysis

[13] The letter of employment, although it referenced an approximate two-year term, was nevertheless precise in setting out the exact dates for the employment’s initial duration. Although the letter speaks of “expected duration” and “approximately 2 years” in the circumstances, I cannot find any ambiguity in the wording of the letter. Nor do I find that any reasonable person could have formed an understanding that the employment was anything but a fixed-term position. The use of the terms “expected duration” and “approximately two years” simply left open the possibility that the employment could be extended beyond the term. It equally left open the possibility that the term could be less than 2 years. That there might have been breach of contract ramifications arising from the City terminating the Plaintiff’s employment prior to the end of the fixed-term or during the term of an extension of that employment cannot change the fact that at no time before the extension notice was there any objectively reasonable indication that the employment term would be indefinite.

[14] The successive extension notices may have been poorly drafted, but they were neither unclear nor ambiguous as they related to the nature of the arrangement which was consistently described as “temporary employment”; those notices unequivocally spelt out the period of time encompassing each respective extension.

[15] I do not accept that the Plaintiff could have reasonably formed the impression that his employment term was indefinite. There was no sound or objective basis for him to do so. Moreover, there is no corroborating, contemporaneous evidence which would support the contention that he believed himself to be indefinitely employed. Indeed, his conduct would suggest otherwise: he never raised the issue of why his contract ended and had to be extended in the first place; he never posed the question why his employment was not extended into 2018; he emitted no protest or concern in response to the email of December 21, 2017, which confirmed that his contract had ended. Instead, the Plaintiff sent an email to Rhonda Bunn expressing his gratitude and best wishes; he even attended a lunch to mark the occasion of the end of his term. At trial, the Plaintiff conceded that he celebrated each extension as it was granted; and when the last term was not extended, he never contacted the City to request an explanation, seek severance pay or secure a letter of termination. This is not the conduct one would expect of a person who considered himself to have been a permanent or indefinite-term employee.

[16] Even if there was ambiguity in either the employment contract or the successive extensions, I find that any uncertainty as to the nature and term of the employment would have been resolved in any reasonable person’s mind by the following facts:

i. The job posting under which the position was offered and in response to which the Plaintiff applied for the employment clearly described the position as a temporary.

ii. That same job posting provided that the position was for “2 years approximately”.

iii. The very fact that extensions were granted before the end of the respective term serves as compelling proof that absent those extensions, the employment term would have expired.

iv. Renewal and extension of the employment contract may have resulted in the employment being continuous for 3 ½ years, but that was pre-destined neither by the employment contract nor the words or conduct of the City.

v. Both the original employment letter and the respective extension notices confirm that the Plaintiff’s employment was “temporary”.

vi. The extension letters all provide a date “up to” which the employment would run. Thus, if there was any ambiguity in the employment letter, which I do not accept, then it should have been resolved by the extension notices.

vii. I accept the evidence of Anne Marie Langlois, Frank Barbaro, Rhonda Bunn and Ryan Nolan that the Plaintiff’s contract and subsequent extensions were conceived as fixed and treated accordingly by all parties. In particular, Bunn testified that she spoke to the Plaintiff about the terms of employment; the Plaintiff never suggested or intimated that the contract was permanent. Similarly, Nolan testified that the Plaintiff expressed neither surprise nor concern at the conclusion of his employment term. Even Barbaro, a friend of the Plaintiff, stated that the Plaintiff always understood that he was under a temporary contract of employment that he hoped would be extended.

viii. I found the Plaintiff’s evidence to be unreliable. His affidavit read much like the statement of claim. The Plaintiff relied upon an obscure and uncorroborated conversation that the Plaintiff had with hiring manager Ms. Glaser; yet the Plaintiff’s affidavit in support of his claim makes no mention of Glaser; such evidence is in any event hearsay and was not tested at trial. I would afford it no weight. With the greatest of respect, the Plaintiff’s suggestion that the wording in the extension letter “We look forward to your continued contribution” supported the notion that his contract was indefinite leads me to conclude that the Plaintiff was inclined to conflate and distort plain language in an attempt to lend it a meaning it cannot bear. This served to undermine his credibility.

[17] Based upon my findings above, I would conclude that the Plaintiff was employed under a fixed or definite-term contract during his time at the City. There was no ambiguity in either the employment contract or its extensions. It was not reasonable in the circumstances for the Plaintiff to have formed a belief otherwise.

Continuous Service Considerations

[18] There have been cases where continuous service for many years, together with verbal representations and the conduct of the parties, established an indefinite-term relationship to which common law and statutory protections would apply.

[19] In Ceccol, the defendant had employed the plaintiff for 16 years under 15 one-year agreements. The contract in that case contained terms relating to termination but renewal was subject to performance reviews. Because of ambiguity in the contract suggesting that renewals would be automatic if the plaintiff earned acceptable performance reviews, the Court of Appeal concluded that the contract did not create a fixed-term of employment; as well, there was compelling evidence of the parties’ conduct and intentions which established that the plaintiff was hired and treated as an indefinite-term employee. The facts in Ceccol are clearly distinguishable from the case at bar: here there was no ambiguity in the employment contract or the extension notices; there was no conduct or conversations involving the parties which could have objectively signalled any other arrangement but a fixed-term of employment; and there is a significant difference between 16 years of employment featuring 15 one-year contracts and the present case. Significantly, in Ceccol, not one but two former federation presidents testified that they viewed the plaintiff as an indefinite-term employee.

[20] In Michela v. St Thomas of Villanova Catholic School, 2015 ONSC 15, the contract in question contemplated terms which were longer or shorter than the one stated; the contract was subject to annual renewal; and it authorized the defendant to terminate the arrangement at any time without cause. In addition, the defendant school had made pronouncements to the effect that continuity of the teaching staff was germane to its philosophy. The court found ambiguities in the contract and conduct on the part of the school consistent with the teachers being permanent employees. That case is distinguishable from the case at bar on its facts.

[21] In Van Mensel v. Walpole Island First Nation, 2010 ONSC 6463, the plaintiff had provided computer training on the First Nation reserve for 11 years. The court found that her contract was not ambiguous; it did not contemplate renewals and it set out a fixed-term. The court held that the parties understood that they were operating under a succession of fixed-term contracts even though the plaintiff remained uncertain whether she would be renewed and had on one occasion continued with her employment beyond the fixed-term pending the actual signing of the contract. This case is more similar on its facts to the one at bar; and it stands for the proposition that even renewed fixed-term contracts over a lengthy period may not attract a finding that the employment is permanent.

Disposition

[22] For the reasons set out above, I find that the Plaintiff was never employed under an indefinite-term of employment with the City. He did not qualify as a permanent employee; rather, he was employed under a fixed-term of employment which was continued under valid fixed-term extensions until the expiration of the last of those extensions in December 2017. As such, there was no breach of contract and no wrongful dismissal on the part of the City. The Plaintiff was not entitled to any protection or remedy under the common law or the applicable employment legislation. As a result, the Plaintiff is not entitled to recover any damages.

[23] Accordingly, and for those reasons, the Plaintiff’s claim is dismissed and there shall be judgment accordingly.

[24] Should the parties be unable to agree upon the form and content of any judgment or upon the issue of costs, they shall take out an appointment to appear before me to address those issues through the Trial Coordinator at Barrie.

McCarthy J.

Released: December 21, 2022