



COURT OF APPEAL FOR ONTARIO

CITATION: Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher
    Dentistry Professional Corporation), 2019 ONCA 469

DATE: 20190607

DOCKET: C65542

Lauwers, Pardu and Nordheimer JJ.A.

BETWEEN

Jasmine Theberge-Lindsay

Plaintiff (Respondent)

and

3395022 Canada Inc. o/a Kutcher Dentistry
    Professional Corporation

Defendant (Appellant)

Chris Dockrill, for the appellant

Ryan Kornblum, for the respondent

Heard: April 8, 2019

On
    appeal from the judgment of Justice Victoria R. Chiappetta of the Superior
    Court of Justice, dated May 25, 2018, with reasons reported at 2018 ONSC 3222.

REASONS FOR DECISION

[1]

Ms. Theberge-Lindsay, the respondent, began working in Dr. Kutchers
    dental practice in 1993. Over the succeeding years, Dr. Kutcher restructured
    his dental practice in various ways to minimize income taxes and split income.
    To maintain her employment with Dr. Kutcher, Ms. Theberge-Lindsay was required
    to sign a series of employment agreements starting in 1999, all of which
    limited her entitlement for wrongful dismissal to the minimum required by the
Employment
    Standards Act, 2000
, S.O. 2000, c. 41
.

[2]

In December 2012, Dr. Kutcher, via his practices most recent corporate
    vehicle, terminated Ms. Theberge-Lindsays employment without cause. She was
    given one weeks salary as the
Employment Standards Act, 2000
minimum,
    since she had signed her most recent employment agreement only in 2011.

[3]

The trial judge made the following finding, at para. 19:

At all times between 1993 and
    December 20, 2012 the plaintiffs employment as a hygienist for Dr. Kutchers
    practice continued uninterrupted. It was Dr. Kutcher who consistently signed
    her pay cheques. The cheques were issued from Dr. Kutcher personally from 1993
    to 1999, by 339 from 1999 to 2011 and by Kutcher Dentistry Professional
    Corporation in 2012.

[4]

The trial judge made the following determination, at para. 39:

In my view, none of the three
    employment contracts signed by the plaintiff are enforceable. Each of the
    contracts fail respectively for lack of consideration. The evidence clearly
    demonstrates that the intention of Dr. Kutcher was that each of the three
    contracts needed to be signed or the plaintiff could not continue to be
    employed with his practice. While there is no evidence of threat or duress, Dr.
    Kutcher was firm in his testimony that continued employment was conditional on
    the signing of the agreements. The plaintiff and Ms. Graham both testified to
    their understanding of this fact pertaining to the 2011 agreement. The
    plaintiff received no more from signing each of the three agreements but for
    continued employment. The fact that she received independent legal advice
    pertaining to the 2011 agreement does not negate this fact. Further, the three
    agreements, if enforceable, would substantially reduce the plaintiffs
    entitlements on termination.

[5]

Based on her finding that Ms. Theberge-Lindsay was wrongfully dismissed,
    the trial judge assessed her damages in lieu of reasonable notice at common law
    at 15 months.

[6]

The trial judges legal conclusions are firmly grounded in this courts
    jurisprudence, which she set out in paras. 36 and 37. On this basis, we reject
    the appellants argument that the 2011 employment agreement is binding on Ms.
    Theberge-Lindsay and obliges her to accept one weeks salary as the
Employment
    Standards Act, 2000
minimum for wrongful dismissal.

[7]

However, the appellant argues that, even accepting this courts
    jurisprudence, the trial judge erred in failing to take proper account of Ms.
    Theberge-Lindsays resignation from her employment in 2005.

[8]

The trial judges factual findings regarding the resignation are set out
    at paras. 8-10 of her decision:

By correspondence dated March 28, 2005 the plaintiff tendered
    her resignation to Dr. Kutcher effective July 7, 2005. She was engaged to be
    married to a gentleman who lived in Guelph, Ontario. The plaintiff had secured
    alternative employment in Guelph to be commenced after July 7, 2005. During the
    notice period and prior to her effective day of resignation, in or about May
    2005, the plaintiff ended her engagement and advised Dr. Kutcher of her
    intention to remain employed as a dental hygienist working in his office. The
    plaintiff testified that Dr. Kutcher told her that he was pleased to hear it as
    he did not want her to leave.

On June 30, 2005 the plaintiff was presented with and signed an
    employment agreement between herself and [339] (the 2005 agreement). The 2005
    agreement limited the liability of [339], should it terminate the plaintiff
    without cause, to notice or payment in lieu of notice in accordance with the
ESA
.
    Again, the plaintiff testified that she reviewed the agreement with Dr. Kutcher
    prior to signing it.  Her evidence is that Dr. Kutcher advised her not to worry
    about the termination provision as it was never going to happen. Dr. Kutcher
    denies he made this statement. Dr. Kutcher signed the 2005 agreement on behalf
    of [339]. The plaintiff continued her employment with Dr. Kutcher without
    interruption between March 28, 2005 and June 30, 2005. There were no changes to
    the terms and conditions of her employment as a result of the 2005 agreement.

Throughout the period of notice of
    resignation and prior to the effective date of resignation, Dr. Kutcher
    commenced the process of hiring a hygienist. He advertised the position for a
    cost of $365.94, received resumes and conducted interviews. All resumes
    presented to the court were addressed to Dr. Kutcher, not Mrs. Kutcher. No
    offers of employment were made as Dr. Kutcher testified that he was getting the
    sense from the plaintiff that things were not working with her fiancé.

[9]

In dealing with the effects of Ms. Theberge-Lindsays 2005 resignation,
    the trial judge held, at paras. 29-30:

Separately, by correspondence dated March 28, 2005 the
    plaintiff advised that her last day working for the practice of Dr. Kutcher was
    to be July 7, 2005. Her resignation was rescinded well prior to July 7, 2005. The
    evidence demonstrates that the plaintiff was happy to remain employed with the
    practice of Dr. Kutcher and Dr. Kutcher was happy that she was to do so. The
    plaintiff continued with her responsibilities for the practice consistently and
    without interruption after March 28, 2005.  Dr. Kutchers efforts to replace
    the plaintiff were brief and uncostly. A record of employment was never issued
    at this time. By correspondence dated February 20, 2006, for the purposes of
    the plaintiff obtaining financing, Dr. Kutcher penned a letter to whom it may
    concern, confirming her employment in our office since 1993.

The evidence demonstrates that the
    retraction of the resignation was accepted by Dr. Kutcher and that the
    circumstances of the 2005 resignation had no impact on the plaintiffs
    continuity of service with the practice of Dr. Kutcher. It further indicates
    that that at least in February 2006, Dr. Kutcher was prepared to recognize the
    continuity of the plaintiffs employment with his practice since 1993,
    independent of both her rescinded resignation and his use of 339 [the new
    corporate vehicle].

[10]

The
    appellant argues that the 2005 resignation broke the chain of Ms.
    Theberge-Lindsays employment since 1993. She was required on June 30, 2005 to
    sign a new employment agreement in order to be re-hired July 1, 2005.
    Consequently she is, at best, entitled to the
Employment Standards Act,
    2000
minimum notice measured from the date that she was re-hired in 2005.

[11]

We
    agree with the appellants submissions that Ms. Theberge-Lindsays unequivocal resignation
    and re-hiring in 2005 marked a break in the employment relationship after which
    an entirely new contract was reached between her and Dr. Kutcher. There was
    consideration for that new employment contract, that is, Ms. Theberge-Lindsays
    offer to again be employed by Dr. Kutcher and his acceptance of her offer to
    again employ her. On this basis,
the
Employment Standards Act, 2000
minimum notice is the maximum amount to which
    the respondent is entitled, measured from 2005. On this basis, she is entitled
    to 7.5 weeks of salary at $1,204 per week, less $1,200 severance already paid.

[12]

Ms.
    Theberge-Lindsays obligation to mitigate her damages does not apply to the
    statutory entitlement:
Brake v. PJ-M2R Restaurant
(2017), 135 O.R.
    (3d) 561 (C.A.), at para 111. Consequently, we do not address the mitigation
    issue.

[13]

The
    appeal is allowed and the judgment varied in accordance with para. 11 of these
    reasons. If the parties cannot agree on the costs, then they may make
    submissions not more than three pages in length on a ten-day turnaround
    starting with the appellant.

P. Lauwers J.A.

G. Pardu J.A.

I.V.B. Nordheimer
    J.A.


