



COURT OF APPEAL FOR ONTARIO

CITATION: Nagribianko v. Select Wine Merchants Ltd., 2017
    ONCA 540

DATE: 20170627

DOCKET: C62592

LaForme, Hourigan and Paciocco JJ.A.

BETWEEN

Alexander Connell Nagribianko

Plaintiff (Appellant)

and

Select Wine Merchants Ltd.

Defendant (Respondent)

Howard Markowitz, for the appellant

Gavin MacKenzie and Brooke MacKenzie, for the respondent

Heard: June 26, 2017

On appeal from the judgment of Justice Mary A. Sanderson
    of the Superior Court of Justice (Division Court), dated January 25, 2016, with
    reasons reported at 2016 ONSC 490, allowing an appeal from a decision of Deputy
    Judge Richardson, dated May 20, 2015.

REASONS FOR DECISION

[1]

The appellant,
Alexander Connell Nagribianko (the
    appellant), appeals the decision of the Divisional Court, reversing the Small
    Claims Court decision that had held that Select Wine Merchants Ltd. (the
    respondent), had wrongfully terminated the appellant shortly before he had
    completed six months of work with them.

[2]

The respondent agreed that it did not have just
    cause to terminate the appellant. The respondents position is that it
    terminated the appellant as a probationary employee, having judged in good
    faith that he was unsuitable for the job, primarily because a key customer of
    the respondent refused to deal with appellant.

[3]

In finding that the termination was wrongful in the
    absence of just cause, the trial judge held that the respondent was not entitled
    to rely on the clause in the employment contract stating, Probation Six
    months. The trial judge found that the probationary terms had not been spelled
    out as a result of the failure of the respondent to deliver a copy of the
    Employee Handbook that contained the terms the respondent intended to include.

[4]

The trial judge found that the appellant understood the
    term probation to mean no more than that he would be kept on as an employee if
    he performed well, and that he would not have taken the job had he known that
    he could be terminated without just cause and with only one weeks pay in lieu
    of notice.

[5]

The trial judge awarded the appellant damages
    equivalent to four months of salary and benefits in lieu of notice, based
    largely on his finding that the respondent had induced the appellant to leave a
    stable job, to pursue an opportunity for advancement and a greater degree of
    responsibility.

[6]

The trial judges decision to treat the term Probation
    Six months as having no meaning was wrong. The parties agreed to a
    probationary contract of employment, and the term probation was not
    ambiguous. The status of a probationary employee has acquired a clear meaning
    at common law. Unless the employment contract specifies otherwise, probationary
    status enables an employee to be terminated without notice during the
    probationary period if the employer makes a good faith determination that the
    employee is unsuitable for permanent employment, and provided the probationary
    employee was given a fair and reasonable opportunity to demonstrate their
    suitability:
Mison v. Bank of Nova Scotia
(1994), 6 C.C.E.L. (2d) 146 (Ont. Ct. (Gen. Div.)), at para. 43.

[7]

It is true that there is a presumption that an
    indefinite employment contract is terminable only on reasonable notice, however
    that presumption is overcome if the parties agree to a probationary period of employment:
Machtinger v. HOJ Industries Ltd
., [1992] 1
    S.C.R. 986, at p. 999;
Jadot v. Concert Industries Ltd.

(1997), 44 B.C.L.R. (3d) 327 (C.A.), at para. 29;
Ly v. British
    Columbia (Interior Health Authority)
,

2017 BCSC
    42, [2017] B.C.J. No. 43, at para. 42.

[8]

Since it is not possible to contract out of the
    minimum notice standards provided for in the
Employment Standards
    Act, 2000
, S.O. 2000, c. 41 (the 
ESA
)
,
    probationary employees are entitled to receive statutory notice, or pay in lieu
    of that notice. In this case, the required period of notice is one week, which
    the appellant received:
ESA
, ss. 54, 61.

[9]

This is not a case such as
Machtinger
, or
Garreton v. Complete Innovations Inc.
,

2016 ONSC 1178, [2016] O.J. No. 869, where the termination clauses
    in employment contracts were rendered null and void because they expressly provide
    for notice periods shorter than the statutory minimum, contrary to employment
    standards legislation. There is nothing in the appellants employment contract
    purporting to oust the statutory notice requirements under the
ESA
.

[10]

The Divisional Court was therefore correct in
    holding that the trial judge erred in failing to give effect to the
    probationary term of the contract, and in treating the appellant, for dismissal
    purposes, as though he was a permanent employee.

[11]

The Divisional Court was also correct in finding
    the trial judge erred by interpreting the term Probation Six months
    according to the subjective understanding of the appellant, when contractual
    terms are to be interpreted based on an objective assessment of the intention
    of the parties
:
Salah v Timothy's Coffees of the World Inc.
,
    2010 ONCA 673, 2010 O.A.C. 279, at para. 16.

[12]

Since there are no specific terms in the appellants
    employment contract to the contrary, the contractual term Probation Six
    months carries the common law meaning described in para. 6 of this decision.
    The Divisional Court was correct to so find.

[13]

The appeal is dismissed. The respondent is awarded costs of the appeal
    in the amount of $5,000 inclusive of disbursements and HST.

H.S. LaForme J.A.

C.W. Hourigan J.A.

David M. Paciocco
    J.A.


