



COURT OF APPEAL FOR ONTARIO

CITATION: Bakshi v. Global Credit & Collection Inc., 2017
    ONCA 548

DATE: 20170630

DOCKET: C63056

LaForme, Hourigan and Paciocco JJ.A.

BETWEEN

Sanchin Bakshi

Plaintiff (Appellant)

and

Global Credit & Collection Inc.

Defendant (Respondent)

John E. Callaghan and Kenneth Alexander for the
    appellant

David Milosevic and Caroline Garrod for the respondent

Heard: June 27, 2017

On appeal from the order Justice Edward P. Belobaba of
    the Superior Court, dated November 11, 2016, with reasons reported at 2016 ONSC
    4610.

REASONS FOR DECISION

[1]

The appellant, Sachin Bakshi, was one of several hundred debt collectors
    whom the respondent, Global Credit & Collection Inc., laid off when the
    respondent lost its contract with its most important client, Capital One. After
    the lay-offs, Capital One and the respondent entered into a settlement agreement
    (the Settlement Agreement) in which Capital One agreed to pay $6.675 million
    to the respondent in exchange for a broad mutual release of claims. The
    appellant became representative plaintiff in a class action in which the class
    of debt collectors sued the respondent. He alleged that the respondent had breached
    part of each class members employment contract (the Commission Agreement) by
    failing to pay commissions on the payment made under the Settlement Agreement.

[2]

After certification of the class proceeding, the respondent and the
    appellant each brought motions for summary judgment on the common issues. The
    motion judge awarded summary judgment in the respondents favour and thereby
    dismissed the class action.

[3]

The appellant appeals from the summary judgment order, alleging that the
    motion judge erred in: (1) interpreting the Commission Agreement as
    disentitling him from receiving any commissions while laid-off; (2)
    interpreting the payment under the Settlement Agreement as reflecting a settlement
    of the respondents potential damages claim for extraordinary expenses and
    defamation; and (3) holding that a motion for summary judgment was an
    appropriate procedure for resolving the common issues in the class action.

[4]

We are not persuaded that the motion judge made any reversible error.

[5]

Before turning to the errors alleged by the appellant, it is important
    to take note of the applicable standard of review. Neither the Commission
    Agreement nor the Settlement Agreement are standardized contracts. The
    interpretation of these agreements will have no impact beyond the interests of the
    parties before the court and we are not satisfied that there are any extricable
    questions of law. Accordingly, the standard of review is a palpable and
    overriding error:
Ledcor Construction Ltd. v. Northbridge Indemnity
    Insurance Co.
, 2016 SCC 37, [2015] 2 S.C.R. 23, at paras. 21-26.

[6]

With respect to the interpretation of the Commission Agreement, the
    appellant submits that the motion judge overlooked the fact that he remained an
    employee of the respondent during his temporary lay-off. He relies on s. 56(4)
    of the
Employment Standards Act, 2000
, S.O. 2000, c. 41, in support of
    his position that the Notice of Temporary Lay-off he received from the
    respondent did not terminate his employment because the respondent did not
    specify a recall date and promised to continue to provide employment benefits
    to him. Given that he remained employed during the temporary lay-off, the
    appellant submits that the motion judge erred when he reasoned that the
    employment contract did not entitle him to commissions during periods when he was
    not working the account.

[7]

We do not accept this argument. We agree with the submission of the
    respondent that the motion judge did not dismiss the claim under the Commission
    Agreement based on a finding that a collector had to be employed or actively working
    an account to be entitled to commissions. The dispositive finding was that a
    collector had to exceed a breakeven financial target set by the respondent to
    be entitled to commission, and a laid-off employee could not possibly be
    collecting monthly payments sufficient to exceed the monthly breakeven
    requirement. Exceeding ones breakeven multiple was a condition of commission
    entitlement under the Commission Agreement. It required at a minimum,
    collection of three times an employees salary. The commissions were not
    earned because the employees could not comply with that condition as they
    were not engaged in collection. We see no palpable and overriding error in the
    motion judges analysis on this point. Accordingly, there is no basis for
    appellant interference.

[8]

The motion judge found that the Settlement Agreement was a settlement of
    a potential damages claim for extraordinary expenses and defamation that the
    respondent was actively considering, arising out of a lawsuit the respondent
    was threatening based on Capital Ones conduct leading to the severance of
    their business relationship: see para. 33 of his reasons. The motion judge acknowledged
    that Capital Ones recitation in the consideration provision stated that the
    $5.7 million was payment for US and Canadian Card payments. He also referred
    to a statement by Capital One that in offering this payment it had used the
    present value of the amount that the respondent would have earned on its U.S.
    and Canadian accounts with Capital One had Capital One not terminated their
    relationship. However, he concluded that a reasonable interpretation of Capital
    Ones statement was merely that Capital One had used that formula for its own
    internal book-keeping purposes in quantifying what it would be prepared to pay
    by way of settlement.

[9]

The appellant submits that the motion judge erred in his interpretation
    of the Settlement Agreement by considering evidence tendered by the respondent
    regarding its subjective intent in entering into the contract and in not
    recognizing that there was no admissible evidence before him that suggested in
    any way that Capital One viewed the settlement as being for defamation or
    extraordinary expenses. It is the appellants submission that properly
    interpreted the payment provided for in the Settlement Agreement was designed
    to reflect the loss of revenue on the return of post-dated cheques to Capital
    One and, accordingly, it was to be included in the calculation of commissions.

[10]

In our view, it is unnecessary to consider these submissions. Even if the
    Settlement Agreement could be interpreted as including a payment for returned
    post-dated payments, given our conclusion on the first issue that the class
    members had not earned any commissions, they would not be entitled to receive
    any commissions on such a payment.

[11]

Finally, we are not persuaded that the motion judge erred in determining
    this case on the basis of a summary judgment motion. It was the appellants
    counsel who wrote to the motion judge to state that the parties agreed that the
    motion judge had sufficient evidence before him to decide whether all or any
    part of the Settlement Agreement was for commissions on post-dated payments.
    The appellant never argued in the court below that summary judgment was
    inappropriate. Indeed, he brought his own motion for summary judgment of the
    common issues.

[12]

The appeal is dismissed. The respondent as the successful party is
    entitled to its costs of the appeal, which we fix at the agreed upon sum of $20,000,
    plus disbursements.

H.S.
    LaForme J.A.

C.W. Hourigan J.A.

David M. Paciocco
    J.A.


