



COURT OF APPEAL FOR ONTARIO

CITATION: Gill v. CPNI Inc., 2015 ONCA 833

DATE: 20151201

DOCKET: C59728

Hoy A.C.J.O., Blair and Hourigan JJ.A.

BETWEEN

Paramjit Gill, Mahamud Nadeem Khazi, and Ratan
    Chakraborty

Plaintiffs (Respondents)

and

CPNI Inc., Patrick Bird, Timothy Price, and
    Michael Foulkes

Defendants (Appellants)

Patrick Bird, acting in person for CPNI Inc.

Chris McClelland, for the respondents

Heard and released orally: November 20, 2015

On appeal from the decision of Justice D. G. Stinson of
    the Superior Court of Justice, dated November 10, 2014.

ENDORSEMENT

[1]

The respondents were former employees of the appellant, CPNI Inc., who
    sued the appellant for unpaid wages and brought a motion for summary judgment.

[2]

The appellant argued on the motion that it was authorized under s. 13 of
    the
Employment Standards Act,

2000
, S.O. 2000, c. 41, to
    deduct amounts from the respondents unpaid wages, because the respondents
    stole software and intellectual property when they failed to return a company
    computer.

[3]

The appellant asserted that provisions in the respondents employment
    contracts requiring them to return company property on request constituted a
    written authorization by the respondents that permitted such deductions in
    accordance with s. 13(3) of the
ESA
.

[4]

In addition, the appellant also commenced a counterclaim for the
    remainder of the damages it alleged that it suffered as result of the failure
    of the respondents to promptly return the company computer.

[5]

The motion judge held that the appellant had not established a valid
    defence to the respondents claim and granted summary judgment against it. He
    found that, while it was common ground that the respondent Mahamud Khazi had
    the computer for a number of months, it was not entirely clear exactly when its
    return was demanded, what the consequences of its non-return were, and what
    losses, if any, were suffered by CPNI as a result. He also found that the
    evidence did not establish any involvement on the part of the respondents
    Paramjit Gill and Ratan Chakraborty in the alleged wrongful conversion of the
    computer by Mr. Khazi. Moreover, the motion judge was not persuaded that
    the employment contract between Mr. Khazi and CPNI contained an authorization
    of the sort contemplated by s. 13(3) of the
ESA
.

[6]

The motion judge also refused to stay the enforcement of the respondents
    judgment while the appellants counterclaim for conversion in relation to the
    unreturned computer proceeded. He held that the claim and counterclaim were not
    closely connected factually, as the respondents claims were for wages and the
    counterclaim related to an alleged conversion of the corporate asset occurring
    after the termination of the employment relationship between the parties.

[7]

The appellant submits that the motion judge erred in dismissing the
ESA
defence because the employment contracts establish that the employer had the
    right to avail itself of the deduction if an employee failed to return property
    when requested. The motion judge is also alleged to have erred in excluding
    Mr. Gill and Mr. Chakraborty from the s. 13 defence.

[8]

We would not give effect to these arguments.  Under s. 13 of the
ESA
,
    an employer is prohibited from making any deduction from an employees wages
    unless it is authorized to do so under that section. The motion judge was
    correct in concluding that there was nothing in respondents employment
    contracts that authorized deductions from the respondents wages pursuant to s.
    13(3). The return of company property provision relied upon by the appellant
    does not make any reference to deduction from wages nor does any other
    provision in the contract. Accordingly, this defence did not raise a genuine issue
    requiring a trial.

[9]

The appellant also submits that the motion judge made a number of errors
    in declining to order a stay pending a determination of the merits of its
    counterclaim. These include a failure to address the existence of language in
    the employment contracts concerning events subsequent to employment, failure to
    recognize the binary effect of these contracts, and a failure to explore the
    issue of valuation of the intellectual property.

[10]

The
    issuance of a stay is a discretionary remedy. We are not persuaded that the
    motion judge erred in the exercise of his discretion and there is, therefore,
    no basis to interfere with his decision.

[11]

The
    appeal is dismissed.

[12]

The
    respondent will have costs of the appeal fixed in the amount of $6,927, inclusive
    of fees, disbursements, and HST.


Alexandra Hoy A.C.J.O.

R.
    A. Blair J.A.


C.
    W. Hourigan J.A.



