



COURT OF APPEAL FOR ONTARIO

CITATION: Nufrio v. Allstate Insurance Company of Canada,
    2017 ONCA 948

DATE: 20171205

DOCKET: C62451

Rouleau, Benotto and Roberts JJ.A.

BETWEEN

Michael Nufrio

Plaintiff (Appellant)

and

Allstate Insurance Company of Canada and The
    Allstate Corporation

Defendants (Respondents)

Kenneth Alexander and Kristopher Stone, for the
    appellant

Seann D. McAleese and Kathryn L. Meehan, for the
    respondents

Heard and released
    orally: November 30, 2017

On appeal from the judgment of Justice Andra Pollak of
    the Superior Court of Justice, dated June 23, 2016, with reasons reported at
    2016 ONSC 2791, 2016 C.L.L.C. 210-049.

REASONS FOR DECISION

[1]

On July 24, 2007 the appellant received notice of fundamental changes to
    his employment contract with the respondents. He was given working notice up to
    September 1, 2009.

[2]

Based on the evidence, it is apparent that he accepted the working
    notice. In fact, he indicated that he intended to retire from his employment
    with the respondents at the end of the notice period.

[3]

In October 2008, the respondents sought to impose immediate changes to
    the employment relationship by requiring the appellant to close his
    neighbourhood office and move to an Allstate operated office by November 1,
    2008. The appellant refused, insisting on operating under the previous
    agreements during the notice period. These agreements were the Allstate Agent
    Compensation Agreement (the 830 agreement) and the Neighbourhood Office Agent
    Amendment (the NOA). His refusal led to his termination for cause on November
    6, 2008.

[4]

The trial judge found that the appellant was properly terminated for
    cause on November 6, 2008. In her view, the respondents had the right to impose
    the new terms of employment, since the appellant had been given reasonable
    notice of the changes.

[5]

In our view, the trial judge erred by not addressing the question of
    whether the change in location, including the change to the business model under
    the NOA, could be made by the respondents during the working notice period. She
    also erred by not considering whether the NOA precluded them from unilaterally
    requiring the changes to the appellants business model and location.

[6]

In this court, the respondents maintain that the 830 agreement entitled them
    to require closure of the appellants office and his relocation to the Allstate
    operated office.

[7]

For his part, the appellant asserts that the NOA, which amended the 830
    agreement, precluded the respondents from insisting on his relocation.

[8]

We agree with the appellants submissions. The proposed relocation was
    more than a geographic relocation of the appellants office; rather, it was a
    fundamental change to the business model that had been agreed to under the NOA.

[9]

The appellant was entitled to continue to operate in accordance with the
    830 agreement and the NOA during the period of working notice to September 1,
    2009, as had been set out in the respondents July 2007 letter. The NOA
    precluded the respondents from unilaterally imposing the changes during the
    period of working notice.

[10]

Accordingly,
    the appellant is entitled to compensation for the balance of the notice period
    from November 6, 2008 to September 1, 2009, a period of nine months and 25 days.
    We agree that it is to be calculated on the basis of $20,000 per month.

[11]

Further,
    it is clear from a plain reading of the 830 agreement that any compensation interest
    the appellant had in renewed insurance policies ended with the termination of
    his employment, despite his argument to the contrary.

[12]

Accordingly,
    the appeal is allowed in part. Costs to the appellant fixed at $7,500 for the
    appeal and $60,000 for the trial, both are inclusive of disbursements and
    applicable taxes.

Paul Rouleau J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.


