



COURT OF APPEAL FOR ONTARIO

CITATION: Oudin v. Centre Francophone de
    Toronto, 2016 ONCA 514

DATE: 20160628

DOCKET: C61351

Rouleau, van Rensburg and Benotto JJ.A.

BETWEEN

François Oudin

Plaintiff (Appellant)

and

Le Centre Francophone de
    Toronto, Inc.

Defendant (Respondent)

Stephen Moreau, for the appellant

Daniel Girlando, for the respondent

Heard: June 20, 2016

On appeal from the judgment of Justice S.F. Dunphy of the
    Superior Court of Justice, dated October 29, 2015.

ENDORSEMENT

[1]

The appellant commenced an action against the respondent  his former
    employer  for wrongful dismissal. His motion for partial summary judgment was
    dismissed. The motion judge held that the employment contract signed by the
    parties limited the appellants entitlement on termination to the minimum provided
    in the
Employment Standards Act,
2000 S.O. c. 41 (ESA) applied on
    termination. As a result, the appellants claim for salary in lieu of notice
    was denied.

[2]

The employment agreement was written in French. Section 9.2 of the
    agreement reads, in part:

Le CFT peut
    également résilier la présente entente pour tout autre motif en donnant à
    lemployé(e) un préavis de quinze (15) jours ou le préavis minimum prescrit par
    la Loi sur les normes demploi, ou en lui versant une indemnité salariale égale
    au salaire quelle aurait droit de recevoir pendant la période de préavis

[3]

The appellant submits that the motion judge erred when he translated the
    clause from French to English. Further, he submits that the clause is
    unenforceable because it ousts the operation of the ESA and the common law.

[4]

The motion judge translated the clause to read that the respondent could
    terminate the appellant on providing the minimum required by the ESA. The
    words ou le préavis minimum prescrit par la Loi sur les normes demploi 
    should have been  translated to or the minimum notice required under the
Employment
    Standards Act
 and not or the minimum prescribed by the
Employment
    Standards Act
. The original agreement therefore provided that the
    respondent could terminate the appellants employment with ESA minimum notice
    and made no mention of severance.

[5]

The respondent acknowledges that the judges translation was not
    accurate but submits that the error was of no moment. It is submitted that the reasons
    for judgment make it clear that he understood that the section referred to
    notice, not all of the requirements of the ESA.

[6]

We agree.

[7]

The motion judge clearly understood that section 9.2 referred only to
    minimum notice. This is apparent form his conclusion at paragraph 56 where he
    stated that the [respondent] agreed to provide only the notice period
    prescribed by the ESA. The translation therefore did not factor into his
    analysis of the clause.

[8]

The motion judges reasons make it clear that he understood and
    considered the appellants submission that - by referring only to notice -
    the clause ought to be interpreted as an attempt to contract out of all
    obligations under the ESA.  The motion judge rejected this submission and found
    that there was no attempt to contract out of the ESA and that the parties had
    agreed that the ESA would be respected.

[9]

The motion judges decision was based on his interpretation of a
    contract. He considered the circumstances of parties, the words of the
    agreement as a whole and the legal obligations between the parties.  He
    concluded at paragraph 54:

Contracts are to be interpreted in
    their context and I can find no basis to interpret this employment agreement in
    a way that neither party reasonably expected  it would be interpreted when they
    entered into it. There was no intent to contract out of the ESA in fact; to the
    contrary, the intent to apply the ESA is manifest.

[10]

The motion judges interpretation of the contract is entitled to
    deference: see
Sattva Capital Corp v. Creston Moly Corp
, 2014 SCC 633
    at para 52.  As a result, we see no error in his conclusion that the clause is
    enforceable.

[11]

The appeal is dismissed with costs of $10,000 inclusive of
    disbursements and taxes, payable to the respondent.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.

M.L. Benotto J.A.


