



COURT OF APPEAL FOR ONTARIO

CITATION: Zhang v. Shenglin Financial Group
    Inc., 2020 ONCA 366

DATE: 20200610

DOCKET: C67454

Brown, Paciocco and Nordheimer
    JJ.A.

BETWEEN

Jing
    Zhang a.k.a. Jeff Zhang

Applicant (Appellant)

and

Shenglin Financial Group Inc.

Respondent (Respondent)

Rebecca Huang and Zina Rita, for the
    appellant

Douglas O. Smith and Cindy Zhang, for
    the respondent

Heard: In writing

On
    appeal from the judgment of Justice Shaun S. Nakatsuru of the Superior Court of
    Justice, dated August 27, 2019, with reasons reported at 2019 ONSC 4998.

REASONS FOR DECISION

[1]

Mr. Zhang appeals from the judgment of the
    application judge that dismissed his application for an order requiring the
    respondent to pay certain service commissions to him.

[2]

The respondent is a private financial services
    company that has eighteen independent agents in British Columbia and Ontario
    selling insurance products of London Life Insurance. The appellant is one of
    those agents in Ontario.

[3]

The respondent has a Financial Security Advisor
    Contract (the contract) that the agents sign. The contract sets out various
    policies and procedures that the agents are required to follow in the course of
    their work. The appellant signed the contract in February 2010.

[4]

In June 2017, the respondent gave notice to its
    agents that payment of the service commissions would depend upon the agents
    performance on new sales. This change took effect as of January 2018. The
    appellant contends that the respondent did not have the right, under the
    contract, to make such a change.

[5]

The application judge reviewed the terms of the
    contract. He concluded that the service commissions were a form of compensation
    or payment that was included within the terms of the contract. The application
    judge concluded, at para. 13:

Given this, I find it clear and unambiguous
    that SFG is entitled to put the minimum performance standard it did when it
    came to payment of SC. Reading the whole of the Contract, two things are clear
    with respect to the objective intent of the parties: (1) that minimum
    performance standards were an important part of the Contract; (2) SFG had
    reserved the right to change the terms of compensation and payment from time to
    time with notice.

[6]

The exercise of interpreting a contract is one
    of mixed fact and law. The standard of review is consequently one of palpable
    and overriding error:
Sattva Capital Corp. v. Creston Moly Corp.
,
2014
    SCC 53, [2014] 2 S.C.R. 633. On this point, we reject the appellants argument
    that this is a standard form contract of the type that would attract a standard
    of review of correctness under the principles set out in
Ledcor
    Construction Ltd. v. Northbridge Indemnity Insurance Co.
,
2016 SCC
    37, [2016] 2 S.C.R. 23.

[7]

The appellant is unable to show any palpable and
    overriding error made by the application judge in his analysis of the contract.
    In particular, we agree with his conclusion that paragraph 4(c) of the contract
    permitted the respondent to impose minimum performance standards as a condition
    of paying the service commissions. Paragraph 4(c) reads:

c). Failure to meet minimum performance
    standards

Any established pay arrangement may be
    modified or withdrawn upon notice, for failure to meet minimum performance
    standards and activity levels, as may be set by Shenglin Financial Inc. from
    time to time.

[8]

Further, there is no basis for us to interfere
    with the application judges conclusion that proper notice was given to the
    appellant respecting the change.

[9]

The appeal is dismissed. The parties may make
    written submissions on the disposition of costs. The respondent shall file its
    written submissions within five days and the appellant shall file his written
    submissions within five days thereafter. The parties are limited to three pages
    for their submissions.

David
    Brown J.A.

David
    M. Paciocco J.A.

I.V.B.
    Nordheimer J.A.


