



COURT OF APPEAL FOR ONTARIO

CITATION:
Dimson v. KTI Kanatek Technologies Inc., 2013 ONCA 454

DATE: 20130702

DOCKET: C56437

MacFarland, Watt and Epstein JJ.A.

BETWEEN

Fred Dimson

Plaintiff (Appellant)

and

KTI Kanatek Technologies Inc.

Defendant (Respondent)

Daniel A. Lublin and Aaron Rousseau, for the appellant

Andrew J. McCreary and Cheryl A. Waram, for the
respondent

Heard and released orally: June 24, 2013

On appeal from the judgment of Justice Sidney N. Lederman
of the Superior Court of Justice, dated November 23, 2013.

ENDORSEMENT

The Appeal

[1]

The appellant moved for summary judgment seeking a determination of the
enforceability of a clause in the written employment contract he entered into
with the respondent, his former employer.  As a result of the motion judges
rejection of the appellants arguments regarding the import of the clause, the
appellants action for common law severance damages for wrongful dismissal, was
dismissed.

[2]

The appellant appeals primarily on the basis that the clause in issue is
void because, contrary to s. 5(1) of the
Employment Standards Act
(ESA), it seeks to avoid the application of ss. 61 and 65 of the ESA.

[3]

The provision in the contract, the interpretation of which is central to
this appeal, is as follows:

18(d) If at any time Kanatek provides you with a bonus, it will
not be included in the calculation of payment for the purposes of this Article,
or as otherwise agreed to or required by the Employment Standards Act.

[4]

The motion judge provided detailed reasons for rejecting the appellants
primary submission that this clause was unenforceable as being an attempt to
contract out of the ESA.  The motion judge interpreted the clause as preserving
the appellants right to the inclusion of a bonus in the calculation of his
termination entitlement if both parties otherwise agreed or if it was required
by the ESA.

[5]

We agree with the motion judges interpretation of the provision particularly
when interpreted, as it must be, in the context of the entirety of clause 18. 
We refer specifically to 18(c) that provides as follows:

In addition, KANATEK may terminate this Agreement at its sole
discretion for any reason, without cause, upon providing Employee all payments
or entitlements in accordance with the standards set out in the Ontario
Employment Standards Act, as may be amended from time to time.

[6]

We agree with the motion judges observation that it would be
inconsistent to interpret 18(d) as denying the appellant his entitlement under
the ESA when 18(c) expressly provides that the appellant would be provided with
everything to which he was entitled under the ESA.

[7]

We see no reason to interfere with the motion judges conclusion that
the provision is clear and does not purport to bypass ss. 61 and 65 of the
ESA.  There is, therefore, no need to consider the appellants other arguments relating
to ambiguity, misinterpretation, or the principle of
contra preferentem
.

[8]

Accordingly, the appeal is dismissed.

[9]

The respondent is entitled to its costs on the appeal fixed in the sum of
$10,000 inclusive of disbursements and HST.

The Cross-Appeal

[10]

The
respondent seeks leave to appeal the motion judges award of costs on the basis
that the motion judge erred in principle in fixing upon an amount that was
unreasonably low.

[11]

The
motion judge determined the quantum of costs based on his view that this matter
could have been dealt with under rule 21 as opposed to rule 20.  In our view,
he was best placed to make that determination and we see no reason to
interfere.

[12]

Therefore,
while leave to appeal costs is granted, the cross-appeal is dismissed.

[13]

The
respondent by cross-appeal is entitled to its costs of the cross-appeal fixed
in the sum of $1,500 inclusive of amount of disbursements and HST.



J. MacFarland J.A.

David Watt J.A.

Gloria Epstein J.A.


