



COURT OF APPEAL FOR ONTARIO

CITATION: Kielb v. National Money Mart Company, 2017 ONCA 356

DATE: 20170505

DOCKET: C60707

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Jonathan Kielb

Appellant (Plaintiff)

and

National Money Mart Company

Respondent (Defendant)

Danny Kastner and Gregory Ko, for the appellant

Susan Crawford and Angela Wiggins, for the respondent

Heard: March 22, 2017

On appeal from the judgment of Justice S.A.Q. Akhtar of
    the Superior Court of Justice, dated June 12, 2015.

ENDORSEMENT

[1]

In
    2008, the appellant lawyer entered into an employment contract with the respondent. 
    A non-discretionary bonus was found by the trial judge to be an integral
    component of the appellants compensation.

[2]

The
    parties employment contract contained a bonus plan clause (the limitation
    clause) that provided that the bonus did not accrue and was only earned and
    payable on the pay-out date.  It went on to state:

For example, if your employment is terminated, with or
    without cause, on the day before the day on which a bonus would otherwise have
    been paid, you hereby waive any claim to that bonus or any portion thereof.  In
    the event that your employment is terminated without cause, and a bonus would
    ordinarily be paid after the expiration of the statutory notice period, you
    hereby waive any claim to that bonus or any portion thereof.

[3]

The
    contract also included a termination clause which provided that the company was
    entitled to terminate the appellants employment without cause, provided that:

(i) the Company shall give you written notice of such
    termination as required by the ESA, which notice may be effective immediately
    (in which case you will be provided with pay in lieu of notice); and

(ii) the Company shall, within 10 business days from the
    date of giving such notice, or pay in lieu thereof, pay to you 4 (four) weeks
    per year of service and pro-rated for partial years of service (the Termination
    Payment), inclusive of any amounts paid in clause (i) above, in return for
    your execution of a full and final release of any and all claims by you as
    against the Company, Dollar or any related entities.  You agree to accept the Termination
    Payment in full satisfaction of all entitlements arising from such termination,
    whether under statute, contract or common law, including entitlement to
    reasonable notice.

[4]

The
    respondents fiscal year runs from July 1 to June 30 and the bonus pay-out date
    for 2010 was September 17, 2010.

[5]

The
    respondent terminated the appellant without cause on April 21, 2010 and paid
    him two weeks notice in satisfaction of the appellants statutory entitlement
    under the
Employment Standards Act
,
    2000, S.O. 2000, c. 41
(the ESA). In the absence of a signed
    release, the respondent refused to pay the appellant the additional six weeks
    base salary referenced in subparagraph (ii) of the contract.

[6]

The appellant, in an amended amended statement of
    claim, sued the respondent for the following damages:

(a) the amount representing his 2009/10 bonus accrued
    to his date of termination in the amount of $86,239.56;

(b) the amount representing his bonus accrued over his
    statutory and contractual notice period; and,

(c) the salary he would have earned over his statutory
    and contractual notice period.



[7]

The
    appellant did not plead a claim for any common law damages in the alternative
    or at all.

[8]

At
    trial, the appellant argued that the limitation clause was unenforceable due to
    its ambiguous and contradictory nature and because it also contravened the ESA.

[9]

The
    trial judge rejected these arguments.  He construed the employment contract and
    found the limitation clause to be unambiguous.  The clause was to be read in
    its entirety and, as such, it was clear that if the bonus pay-out date fell
    within the appellants notice period, the respondent would honour its
    requirements.  Moreover, even if the appellant had opted for the negotiated
    eight-week notice period, the notice period would have ended on June 16, 2010,
    before the bonus pay-out date, and the appellant would not have earned or have been
    eligible to receive the bonus payment.

[10]

Applying the
    principles in
Sattva Capital Corp. v. Creston Moly Corp
., 2014 SCC 53, [2014] 2 S.C.R. 633,
and
    recognizing that the trial judge had the opportunity to consider the full
    factual matrix, we see no reason to interfere with the trial judges
    interpretation.

[11]

The parties did not
    purport to contract out of or otherwise waive the appellants statutory
    entitlements, which would have been void pursuant to s. 5(1) of the ESA. 
    Rather, in clear and unambiguous language, the parties agreed that the
    appellant would be paid his entitlements under the ESA.  The contract was also clear
    and unambiguous that the appellants statutory entitlements included those
    bonus payments that would have been earned and paid out within the appellants
    statutory notice period under the ESA.

[12]

It was open to the
    parties to agree how and when any bonus was declared, earned, accrued and would
    be payable
.  We see no basis to interfere with
    the trial judges finding that no bonus entitlement had accrued by or on the
    date of termination, nor did it accrue during the notice period under the terms
    of the contract or the provisions of the ESA.

[13]

We would
therefore not give effect to this
    ground of appeal.

[14]

It was also open to
    the trial judge to dismiss the appellants arguments based on unconscionability
    and public policy.  As the trial judge found at para. 39 of his reasons,

[p]ublic
    policy would be ill served by permitting the plaintiff to accept a potentially
    lucrative position with the full knowledge that it contained a potentially
    unfavourable limitation clause and then to complain when that clause was
    actually executed
.
The provisions
    relating to the bonus were freely negotiated by the appellant.  In any event,
    the appellant failed to meet the four-part test for unconscionability set out
    in
Titus v. William F. Cooke Enterprises Inc.
, 2007 ONCA 573, [2007] O.J.
    No. 3148.

[15]

The appellants remaining
    ground of appeal may be addressed succinctly.  The appellant submits that the
    trial judge erred in finding the termination clause enforceable.  As a result,
    he argues, he is entitled to his common law notice period, which he calculates
    as six months.  This issue was neither pleaded nor argued at trial.  Indeed, at
    trial, the appellant sought to enforce his contractual entitlement to notice on
    termination in the amount of eight weeks.  The evidentiary record is lacking
    and it would be prejudicial to the respondent to permit the appellant to
    advance this argument at this late stage:
Kaiman v. Graham
, 2009 ONCA
    77, [2009] O.J. No. 324, at para. 18.

[16]

We would not give
    effect to this ground of appeal and it is therefore unnecessary to address
    common law reasonable notice.

[17]

Lastly, the respondent
    advised that it has withdrawn its cross-appeal.

[18]

The appeal is
    dismissed.  The appellant is to pay the respondent $15,000 in costs on a
    partial indemnity scale inclusive of disbursements and applicable tax.  This
    sum represents the respondents costs of the appeal less a reduction on account
    of the abandonment of its cross-appeal.

Paul Rouleau J.A.

S.E. Pepall J.A.

L.B. Roberts


