



COURT OF APPEAL FOR ONTARIO

CITATION: Covenoho v. Pendylum Ltd., 2017 ONCA 284

DATE: 20170405

DOCKET: C62605

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Joss Covenoho

Appellant (Plaintiff)

and

Pendylum Ltd.

Respondent (Defendant)

Joss Covenoho, acting in person

Harj Mann, for the respondent

Heard: March 21, 2017

On appeal from the order of Justice Mario D. Faieta of
    the Superior Court of Justice, dated September 29, 2016, with reasons reported
    at 2016 ONSC 4969.

ENDORSEMENT

[1]

The appellant appeals from the dismissal of her motion for summary
    judgment in her wrongful dismissal action against the respondent, her former
    employer, as a result of which the motion judge dismissed the appellants
    action.  She also seeks leave to appeal the motion judges costs award against
    her in the amount of $28,000.

[2]

The appellant was employed by the respondent under a one-year fixed term
    contract. On July 10, 2013, the appellant signed a standard form agreement with
    the respondent. She commenced her employment on July 15, 2013. Article 2 of the
    contract between the parties provides as follows:

2.1      The term of this Agreement will commence on the date
    of this Agreement and will continue in full force and effect unless the
    Agreement is terminated as follows:

(a) immediately by PENDYLUM providing
    written notice to you if you violate or fail to honor any of these provisions
    of this Agreement or fail to perform your duties as set out in Appendix A in a
    satisfactory manner as determined by PENDYLUM (known as Cause); or if the
    PENDYLUM Client to which you have been contracted terminate[s] its contract
    with PENDYLUM for your services; OR

(b) by either party providing written
    notice of
at least two (2) weeks
to the other.

2.2      In the event of termination, we will have no liability
    to you, save and except to pay any accrued and earned compensation up to and
    including the date of termination.

2.3      Upon termination or expiration of the agreement, you
    agree to return and/or destroy all confidential information and copies and sign
    an undertaking that all Confidential Information has been returned and/or
    destroyed.

[3]

By letter dated October 11, 2013, the respondent terminated the
    appellants employment without notice or payment in lieu of notice, as follows:

Pursuant to paragraph 2.1a) of your Contract Agreement with
    Pendylum Inc., dated July 10, 2013, and specifically by reason of Pendylum
    Client Ceridians decision to terminate its contract with Pendylum Inc. for
    your services, we hereby advise you that your contract with Pendylum Inc. is
    hereby terminated with immediate effect.

[4]

The motion judge concluded that as the appellant had been employed for
    less than three months, she was not entitled to notice under the
Employment
    Standards Act
, 2000, S.O. 2000, Ch. 41 (
ESA
), and reasonable common
    law notice was not required under s. 2.1 of the contract. He also dismissed her
    claim for damages arising from bad faith in the manner of termination.

[5]

The appellants main ground of appeal is that the motion judge erred in
    dismissing her summary judgment motion and action on the basis that the
    respondent was entitled to terminate the appellants employment under Article 2
    of her employment contract. She submits that Article 2 is void because it is
    contrary to the provisions of the
ESA
, in that it purports to allow
    the respondent to terminate her employment without cause and without notice or
    payment in lieu of notice, regardless of the length of her employment.

[6]

We agree.

[7]

The termination provisions contained in Articles 2.1(a) and 2.2 of the
    contract are contrary to ss. 54, 57 and 58 of the
ESA
in that they
    purport to allow the respondent to terminate, without cause, the employment of the
    appellant, in the event that she had been continuously employed for more than
    three months, by providing less than the statutory minimum notice period. In
    determining whether the contract is in compliance with the
ESA
, the
    terms must be construed as if the appellant had continued to be employed beyond
    three months; if a provisions application potentially violates the
ESA
at
    any date after hiring, it is void:
Wright v. Young & Rubicam Group of
    Cos.
, 2011 ONSC 4720, [2011] O.J. No. 4960
,
    at paras. 27-37;
Shore v. Ladner Downs
, [1998] B.C.J. No. 1045
    (B.C.C.A.), at para. 16. As such, the termination provisions are void and
    common law standards apply:
Machtinger v. HOJ Industries Ltd.
, [1992]
    1 S.C.R. 986;
Wood v. Fred Deeley Imports Ltd.
, 2017 ONCA 158, [2017]
    O.J. No. 899; s. 5(1) of the
ESA
.

[8]

The appellant claims damages in the amount of $56,000, representing her
    salary for the 40 weeks that remained on her fixed term contract at the time of
    her employment termination. The motion judge determined that had the appellants
    employment not been validly terminated under the contract, he would have found
    that she was entitled to damages equivalent to her salary for the remainder of
    the unexpired term of the contract, without deduction for mitigation.

[9]

Having concluded that her employment was not validly terminated, we
    agree with the motion judges alternative finding in this regard.  As this
    court recently stated in
Howard v. Benson Group Inc.
, 2016 ONCA 256,
    129 O.R. (3d) 677, at para. 44: In the absence of an enforceable contractual
    provision stipulating a fixed term of notice, or any other provision to the
    contrary, a fixed term employment contract obligates an employer to pay an
    employee to the end of the term and that obligation will not be subject to
    mitigation. The termination provisions being void and of no force or effect, the
    appellant is entitled to receive the salary that she would have earned for the
    remaining weeks of her fixed-term contract.

[10]

For these reasons, we allow the appeal. We set aside the order and cost
    award of the motion judge and substitute a judgment awarding the appellant
    damages from the respondent in the amount of $56,000, together with pre and
    post judgment interest.

[11]

The respondent is to pay the appellant the amount of $1,664 on account
    of her disbursements.

Paul Rouleau
    J.A.

S.E. Pepall J.A.

L.B. Roberts
    J.A.


