



COURT OF APPEAL FOR ONTARIO

CITATION: King v. 1416088 Ontario Ltd. (Danbury Industrial),
    2015 ONCA 312

DATE: 20150504

DOCKET: C58694

Simmons, Gillese and Rouleau JJ.A.

BETWEEN

Jack King

Plaintiff (Respondent)

and

1416088 Ontario Ltd., c.o.b. as Danbury Industrial and
    Danbury Sales Inc.

and 1416087 Ontario Ltd. c.o.b. as Danbury Appraisal and
    2184493 Ontario

Ltd. c.o.b. as Danbury Solutions and 986866 Ontario Ltd. c.o.b.
    as Danbury

Capital and/or DSL Commercial

Defendants (Appellants)

R. G. Chapman, for the appellants

Matthew A. Fisher and Bram A. Lecker, for the respondent

Heard: April 30, 2015

On appeal from the judgment of Justice Graeme Mew of the Superior
    Court of Justice, dated March 25, 2014, with reasons reported at 2014 ONSC
    1445, 16 C.C.E.L. (4th) 331.

ENDORSEMENT

[1]

Jack King worked as an accountant for the Danbury group of companies from
    September 1973 to October 2011, a period of 38 years.  His employment was
    terminated without cause.  The Danbury group has carried on a liquidation and
    auctioneering business in Toronto for decades through various corporations.

[2]

Mr. King was formally employed by a series of different Danbury
    corporations.  In 1981, Mr. King entered into an agreement with the Danbury
    company that was his formal employer at that time.  Under the terms of the
    agreement, he was entitled to retirement compensation of $736.60 per month, for
    life, so long as he continued to be employed with the company or its successors
    until he was 65 (the pension agreement).

[3]

At the time his employment was terminated, Mr. Kings formal employer
    was the appellant 1416088 Ontario Ltd., carrying on business as Danbury
    Industrial.  Two months later, the appellant company 986866 Ontario Ltd.,
    carrying on business as Danbury Capital and/or DSL Commercial (DSL), held an
    auction and was operating a liquidation and auctioneering business using the
    Danbury name and premises.  Mr. King had assisted with the groundwork
    necessary for DSLs start-up prior to the end of his employment with the
    Danbury group.

[4]

The president of Danbury Industrial (Mr. Kings formal employer at the
    time of termination) was David Ordon.  The president of DSL is Davids son,
    Jonathan Ordon.  All of the employees of Danbury Industrial, with the exception
    of David Ordon, were terminated at the same time.  David Ordon and five other
    former Danbury Industrial employees were later hired by DSL.  Mr. King was not.

[5]

When Mr. Kings employment was terminated, he was nearly 73 years of
    age.  He was given no compensation for the wrongful termination  no pay in
    lieu of notice, no statutory termination pay, no vacation pay and no pension
    payments.

[6]

Mr. King sued various Danbury corporations (the appellant companies)
    for which he had worked over his career.  Part of his claim, including that
    part relating to the
Employment Standards Act
, 2000
, S.O. 2000,
    c. 41

(the 
ESA
), was settled before trial.

[7]

At trial, the issues to be decided were: (1) which of the appellant
    companies were liable for payment of the amounts that Mr. King was owed; and
    (2) whether Mr. King was entitled to the retirement compensation promised under
    the pension agreement.

[8]

The trial judge found that all of the appellant companies were Mr.
    Kings common employer, and so were jointly and severally liable for the monies
    owed to Mr. King.  The trial judge also found that the pension agreement was
    valid and that all of the appellant companies were liable for the benefits due
    under that agreement.

[9]

On appeal, the appellant companies contend that the trial judge erred in
    both of these determinations.

[10]

The
    court found it unnecessary to call on the respondent and dismissed the appeal
    with reasons to follow.  These are the promised reasons.

ANALYSIS

[11]

The
    appellant companies first submit that, apart from Danbury Industrial, they were
    not Mr. Kings employer.  They say that there was insufficient evidence of
    common control for the trial judge to have found that they were Mr. Kings
    common employer.  In particular, they say that DSL should not be liable because
    it did not even begin operating until some months after Mr. Kings employment
    had been terminated.

[12]

We
    do not agree.

[13]

We
    see no error in the trial judges conclusion that there was a sufficient
    relationship among the appellant companies that they should be regarded as one,
    for the purpose of liability for the wrongful termination of Mr. Kings
    employment.

[14]

There
    is no dispute that the trial judge set out the applicable legal principles from
    this courts decision in
Downtown Eatery (1993) Ltd. v. Ontario
(2001), 54 O.R. (3d) 161 (C.A.).  The trial judge made clear findings of fact
    that supported his conclusion and demonstrated the interconnections among the
    Danbury businesses and Mr. Kings contributions to them all.

[15]

Moreover,
    his findings make it clear that although DSL was owned by Jonathon Ordon and may
    not have formally started operating until after Mr. Kings employment was terminated,
    Mr. King did work for DSL prior to its formal launch.  Paragraphs 50 to 51 of
    the trial judges reasons are instructive in this regard.  They read as
    follows:

DSL has too many attributes in common with other companies who
    have traded under the Danbury name to escape from liability to the plaintiff.

DSL is the current incarnation of the business that the
    plaintiff worked for over a period of 38 years.  Far from there being clear
    water between the termination of the business by Danbury Industrial and the
    recommencement of business by DSL, the groundwork for DSLs start-up was
    already being laid, with the assistance of the plaintiff, in October 2011 while
    the plaintiff continued to be formally employed by Danbury Industrial. Indeed,
    from May 2010 to October 2011, David Ordons company (Danbury Industrial) had
    been using the Danbury name and goodwill even though Jonathan Ordons company
    (866 Inc.) [
i.e.
, DSL] was the sole holder of the license to use the
    name.  This further supports the interconnectedness of the entities.

[16]

The
    appellant companies second and third submissions relate to s. 4 of the
ESA
. 
    These submissions are irrelevant because the
ESA
issue was resolved
    prior to trial and forms no part of the judgment under appeal.  In any event, however,
    we do not accept the appellant companies submission that the principles in
Downtown
    Eatery

are modified by s. 4 of the
ESA
.

[17]

The
    appellant companies fourth submission is that Mr. King is entitled to enforce
    the pension agreement only against the Danbury company that was a party to it. 
    The appellant companies contend that the trial judge erred in finding them
    liable to Mr. King under that agreement.

[18]

Again,
    we would not accept this submission.  Once the trial judge found that the pension
    agreement was valid and that Mr. King had provided essentially the same
    services throughout his 38 years of service, in light of his findings on the
    matter of common employer, it follows that the appellant companies were jointly
    and severally liable for the amounts owing under that agreement.  The fact that
    the appellant companies did not execute the pension agreement does not relieve
    them of liability.

DISPOSITION

[19]

Accordingly,
    the appeal is dismissed with costs to the respondent, fixed at $15,000, all
    inclusive.

Janet Simmons J.A.

E.E. Gillese J.A.

Paul
    Rouleau J.A.


