



COURT OF APPEAL FOR ONTARIO

CITATION: Amberber v. IBM Canada Ltd., 2018 ONCA 571

DATE: 20180622

DOCKET: C64633

Doherty and Pepall JJ.A. and Gray J. (
ad hoc
)

BETWEEN

Noah Amberber

Plaintiff
(Respondent/Appellant by Cross-Appeal)

and

IBM Canada Ltd.

Defendant
(Appellant/Respondent by Cross-Appeal)

Jennifer Dolman and Lindsay Rauccio, for the appellant

Paul J. Willetts and Andrew N. Vey, for the respondent

Heard:  April 26, 2018

On appeal from the
    judgment of Justice Pamela L. Hebner of the Superior Court of Justice dated
    October 30, 2017 with reasons reported at 2017 ONSC 6470.

Gray J. (
ad hoc
):

[1]

The issue in this case is the enforceability of
    a termination clause in a written contract of employment. On a motion for
    summary judgment brought by the employer, the motion judge held that the
    termination clause was ambiguous, and did not clearly set out an intention to
    deprive the respondent of his entitlement to damages at common law.  She held
    the clause to be unenforceable and dismissed the motion. The employer, IBM,
    appeals.

[2]

For the reasons that follow, I would allow the appeal.

A.

Factual Background

[3]

The respondent, Mr. Amberber, became employed by IBM on March 30, 2015. 
    He had previously been employed by an IBM customer, Team Detroit, in the
    United States. Upon his hiring by IBM, Mr. Amberbers start date of September
    25, 2000 with Team Detroit was recognized for most purposes, including
    severance under the termination provision of the contract of employment entered
    into between the parties.

[4]

Mr. Amberber was advised on April 19, 2016 that his employment with IBM
    would be terminated, without cause, effective July 8, 2016. Mr. Amberber
    continued working for IBM until July 8, 2016. His salary as of the date of
    termination was $65,507 per year.

[5]

During the period of Mr. Amberbers working notice, between April 19,
    2016 and July 8, 2016, he continued to receive benefits coverage and pension
    contributions from IBM. In addition to the working notice, for which he was
    paid, Mr. Amberber received $24,121.59 as a termination payment, which was
    equivalent to 19.4 weeks of salary. He actually received $22,675.50 initially,
    and subsequently received an additional $1,446.09 after the litigation had been
    commenced.

[6]

When Mr. Amberber was hired by IBM, he was subject to a written contract
    of employment, which included the following provisions:

SERVICE REFERENCE DATE

Your Service Reference Date (SRD) is 09/25/2000, which includes
    your previous service with Team Detroit.  Your SRD will be used to determine
    vacation entitlement, retirement eligibility, entitlements upon termination of
    employment, eligibility for Short Term Disability benefit payments, eligibility
    for the Quarter Century Luncheon, eligibility for IBMs Stock/RSU equity
    programs, and eligibility for a Retirement Event/Gift.

TERMINATION OF EMPLOYMENT

If you are terminated by IBM other than for cause, IBM will
    provide you with notice or a separation payment in lieu of notice of termination
    equal to the greater of (a) one (1) month of your current annual base salary or
    (b) one week of your current annual base salary, for each completed six months
    worked from your IBM service reference date to a maximum of twelve (12) months
    of your annual base salary. This payment includes any and all termination
    notice pay, and severance payments you may be entitled to under provincial
    employment standards legislation and Common Law. Any separation payment will be
    subject to applicable statutory deductions. In addition, you will be entitled
    to benefit continuation for the minimum notice period under applicable
    provincial employment standard legislation. In the event that the applicable
    provincial employment standard legislation provides you with superior entitlements
    upon termination of employment (statutory entitlements) than provided for in
    this offer of employment, IBM shall provide you with your statutory
    entitlements in substitution for your rights under this offer of employment.

[7]

By Statement of Claim issued on August 16, 2016, Mr. Amberber claimed an
    entitlement to pay in lieu of notice at common law based upon a notice period
    of 16 months.

B.

Proceedings Before the Motion Judge

[8]

IBM brought a motion for summary judgment, contending that Mr. Amberbers
    claim for damages at common law was precluded by the termination clause in the
    contract of employment. Mr. Amberber advanced three arguments in support of his
    position that the termination clause is not enforceable:

(a)   the termination clause violates,
    or potentially violates, the minimum requirements of the
Employment
    Standards Act, 2000
, S.O. 2000, c.41, as amended (the ESA);

(b)   the termination clause fails to rebut the presumption at
    common law that the employee is entitled to reasonable notice of termination;
    and

(c)   IBM failed to comply with the requirements of the
    termination clause, and is not entitled to rely on it.

[9]

The motion judge rejected the first and third arguments, but accepted
    the second. She declared that the termination provision is ambiguous, that it
    fails to rebut the common law presumption of reasonable notice, and that Mr.
    Amberber is entitled to damages at common law. She remained seized of the
    issues of the applicable reasonable notice period and damages.

[10]

With
    respect to the first argument, the motion judge held that the termination
    clause does not violate the minimum requirements of the ESA. She held that the
    last sentence of the termination clause, which she termed the failsafe
    provision, ensures that a terminated employee receives what he or she is
    entitled to under the ESA. Accordingly, it cannot be said that the clause
    violates, or potentially violates, the ESA.

[11]

The
    motion judge also rejected the third argument, which was to the effect that IBM
    had failed to comply with the termination clause as written, by providing only
    $22,675.50 as a termination payment instead of the required amount of $24,121.59,
    and IBMs subsequent payment of $1,446.09 did not cure the breach.  The motion
    judge held that the initial payment was a simple error that was subsequently
    corrected, and was not sufficient to constitute a breach of the agreement. Mr.
    Amberber does not challenge the motion judges conclusion in this respect on
    appeal.

[12]

On
    the second argument, the motion judge gave effect to Mr. Amberbers position.

[13]

The
    motion judge effectively held that the termination clause consists of three
    parts: the options provision; the inclusive payment provision; and the
    failsafe provision as follows:

Options
    Provision

If you are terminated by IBM
    other than for cause, IBM will provide you with notice or a separation payment
    in lieu of notice of termination equal to the greater of (a) one (1) month of
    your current annual base salary or (b) one week of your current annual base
    salary, for each completed six months worked from your IBM service reference date
    to a maximum of twelve (12) months of your annual base salary.

Inclusive Payment Provision

This payment includes any and all termination notice pay, and
    severance payments you may be entitled to under provincial employment standards
    legislation and Common Law.  Any separation payment will be subject to applicable
    statutory deductions. In addition, you will be entitled to benefit continuation
    for the minimum notice period under applicable provincial employment standard
    legislation.

Failsafe Provision

In the event that the applicable provincial employment standard
    legislation provides you with superior entitlements upon termination of
    employment (statutory entitlements) than provided for in this offer of
    employment, IBM shall provide you with your statutory entitlements in
    substitution for your rights under this offer of employment.

[14]

At
    para. 36 of her reasons, the motion judge noted that the inclusive payment
    provision immediately follows the options provision. She stated: Clearly, the
    inclusive payment provision applies to the first part.

[15]

The
    motion judge then noted that the failsafe provision follows the inclusive
    payment provision, but the inclusive payment provision is not repeated after
    the failsafe provision. At para. 38 of her reasons, she stated:

The inclusive payment provision is not repeated. In my view, it
    is not clear from a reading of the clause that the inclusive payment provision
    was meant to apply to the failsafe provision. If that were the case, then the
    inclusive payment provision could just as easily have been included at the end
    of the paragraph and could have just as easily been specified to apply to both
    scenarios.

[16]

At para. 39 of her reasons, the motion judge referred
    to the principle that any intention to rebut common law reasonable notice
    requirements must be clear in order to be enforceable, and any ambiguity is to
    be resolved in favour of the employee. She referred in this respect to the
    judgment of Stinson J. in
Singh v. Qualified Metal Fabricators Ltd.
(2016), 33 C.C.E.L. (4th) 308 (Ont. S.C.J.).

[17]

The
    motion judges conclusion, at para. 40 of her reasons, was as follows:

In the case at hand, IBM could
    easily have drafted a termination clause that clearly excluded the common law
    notice entitlement in both the options provision scenario and the failsafe
    provision scenario. In my view, the clause drafted is ambiguous.  It is not
    clear that the exclusion of the common law notice entitlement applies to the
    failsafe provision scenario. As in
Singh
¸ the ambiguity must be
    construed against the employer.

C.

Arguments on Appeal

(1)

IBMs Appeal

[18]

On
    appeal, IBM seeks to overturn the motion judges conclusion that the
    termination clause is ambiguous and does not clearly exclude an entitlement to
    damages at common law.

[19]

IBM
    submits that the motion judge erred in failing to consider the termination
    clause as a whole. Rather, she artificially bifurcated the clause, and created
    an ambiguity that does not reasonably exist. IBM submits that the motion judge
    erred by disregarding ordinary principles of contract interpretation and
    arrived at an unreasonable interpretation of the clause.

[20]

IBM
    acknowledges that to some extent, employment contracts are to be interpreted
    differently than ordinary commercial contracts. In interpreting an employment
    contract, the court must be cognizant of the fact that, generally speaking,
    employees are in a weaker bargaining position than the employer, and, as is the
    case here, an employment contract is often drafted by the employer, with the
    result that the
contra proferentem
principle applies.

[21]

However,
    IBM submits that these principles do not assist an employee if the contract, on
    any reasonable construction, is not ambiguous. If the contract is not
    ambiguous, it must be given its full effect. The ordinary principles of
    contract interpretation must be applied in order to determine whether there is
    an ambiguity.

[22]

IBM
    submits that the termination clause cannot be read as if it were two or three
    separate provisions. Rather, it is a single clause and must be interpreted as a
    whole.

[23]

IBM
    submits that if the clause is read as a whole, as it must be, an employee is
    entitled to notice and/or pay in lieu of notice in accordance with a specified
    formula which satisfies the employees statutory and common law entitlements. If
    the statutory amount is greater, the employee will get that amount instead of
    that provided by the formula, but not damages at common law.

[24]

IBM
    submits that an ambiguity does not arise simply because there may be two competing
    interpretations of an agreement. An ambiguity exists only where there is
    genuine uncertainty as to which of two meanings applies, or that there are two
    plausible or reasonable interpretations.

[25]

IBM
    submits that the motion judges finding of ambiguity was based on where the
    inclusive payment provision is positioned within the termination clause. 
    Because of where it is placed, she held that it is not clear that it was
    intended to apply to the amounts that may be required to be paid by the
    failsafe provision. She held that it would have been clearer if the options
    provision had been repeated after the failsafe provision, or it had simply been
    moved to the end of the clause.

[26]

IBM
    submits that the motion judges reading of the termination clause is strained
    and artificial, and is not reasonable or plausible.

[27]

Mr.
    Amberber submits that the motion judge was correct in holding that the
    termination clause is ambiguous, and does not clearly exclude any claim for
    common law damages.

[28]

Mr.
    Amberber submits that the motion judges task was to interpret a contract of
    employment, and her conclusion is one of mixed fact and law.  Accordingly,
    pursuant to the reasons of the Supreme Court of Canada in
Sattva Capital
    Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, the motion
    judges interpretation is reviewable on a standard of palpable and overriding
    error, unless an extricable question of law is identified. The issue in this
    case was a pure issue of interpretation in light of the surrounding circumstances,
    and thus the motion judges interpretation is reviewable only on a standard of
    palpable and overriding error.

[29]

Mr.
    Amberber submits that there is a common law presumption that employees can be
    dismissed without cause only upon the provision of reasonable notice or pay in
    lieu of such notice. This presumption can only be rebutted where an employment
    agreement specifies some other period of notice or pay in lieu, and where there
    is a high level of clarity that this is the intention, using clear and unambiguous
    language. Where a termination provision can reasonably be interpreted in more
    than one way, the ambiguity will be resolved by adopting the interpretation
    that gives the greater right or benefit to the employee.

[30]

Mr.
    Amberber submits that the termination clause is bifurcated, and it limits an
    employees common law entitlements in certain circumstances but not in others.

[31]

Mr.
    Amberber submits that the motion judge, contrary to the submission of IBM, did
    interpret the termination clause as a whole. By including the inclusive
    provision after the options provision, it seems clear that it is intended to
    apply only to the options provision. By placing the failsafe provision after
    the inclusive provision, it is entirely unclear as to whether the inclusive
    provision is intended to apply where the failsafe provision is operative. As
    required by well-understood legal principles, any ambiguity is to be resolved
    against IBM.

[32]

That
    being the case, it is clear that the termination clause, as drafted, does not
    exclude Mr. Amberbers entitlement to common law damages in unambiguous
    language. Thus, he is properly entitled to maintain his claim for common law
    damages.

(2)

Mr. Amberbers Cross-Appeal

[33]

By
    way of a purported cross-appeal, Mr. Amberber seeks to overturn the motion
    judges conclusion that the termination clause does not violate the ESA.  He
    argues that the failsafe provision operates in the same fashion as a
    severability clause which, as held by this court in
North v. Metaswitch
    Networks Corp.
2017 ONCA 790, 417 D.L.R. (4th) 429
,
is
    ineffective to make lawful a provision that is void on account of its conflict
    with the ESA.

[34]

I
    do not regard Mr. Amberbers argument as the proper subject of a cross-appeal.
    In my view, it is simply another argument that may serve to uphold the decision
    of the motion judge, and it does not require a cross-appeal in order to be
    pursued. Be that as it may, there is no dispute that Mr. Amberbers argument is
    properly raised, and must be considered by this court.

[35]

As
    far as Mr. Amberbers alternate argument, or cross-appeal, is concerned, IBM
    submits that the motion judges decision is correct. IBM submits that there is
    a fundamental difference between a severability clause, held to be inoperative
    in
Metaswitch
, and the failsafe provision in issue here.

[36]

IBM
    submits that a severability clause seeks to delete from the contract a clause
    that is unlawful on account of its failure to comply with the ESA. The failsafe
    clause in this agreement does not seek to sever any provision of the agreement. 
    Rather, it ensures that every part of the agreement will comply with the ESA.
    The particular failsafe clause in this agreement ensures that every part of the
    termination provision will comply with the ESA.

[37]

Mr.
    Amberber submits that the effect of the failsafe provision is to attempt to
    render lawful what is clearly unlawful. Viewed in this light, this situation is
    exactly the same as that dealt with by this court in
Metaswitch
. While
    the wording is different, the effect of the failsafe provision is exactly the
    same as the effect of the severability clause that was held by this court to be
    ineffective in
Metaswitch
.

[38]

For the same policy reasons discussed in
Metaswitch
, any attempt to legalize what is clearly unlawful in
    a contract of employment must be rendered ineffective.

D.

Applicable Legal Principles

(1)

The ESA

[39]

The
Employment Standards Act, 2000
has had a marked impact on employment
    law. Particularly, it has had an impact on the issue of damages payable on
    termination of employment. The relevant provisions of the ESA are attached as
    an Appendix to these reasons.

[40]

The
    impact of the statutory minimum provisions on termination of employment at
    common law was considered by the Supreme Court of Canada in
Machtinger v.
    HOJ Industries Ltd.,
[1992] 1 S.C.R. 986. In that case, the Supreme Court
    held that a clause in an employment contract that provided considerably less to
    a dismissed employee than the minimum required by the ESA was void. In the
    result, the employee was entitled to damages calculated in accordance with
    common law principles, and the void provision in the employment contract could
    not be used as a yardstick to determine what was reasonable.

[41]

However,
    Iacobucci J. for the majority made it clear that the parties are free to
    contract for something less than what might be awarded at common law, provided
    that the minimum standards in the ESA are observed. At pp. 1004 and 1005, he
    stated:

Absent considerations of unconscionability, an employer can
    readily make contracts with his or her employees which referentially
    incorporate the minimum notice periods set out in the
Act
or otherwise
    take into account later changes to the
Act
or to the employees notice
    entitlement under the
Act
. Such contractual notice provisions would be
    sufficient to displace the presumption that the contract is terminable without
    cause only on reasonable notice.

(2)

Interpreting Employment Agreements

[42]

Since
Machtinger
, there have been a myriad of cases in which various courts,
    including this court, other appellate courts across Canada, and the Superior
    Court of Justice, have considered whether termination clauses are compliant
    with the ESA and whether they unambiguously exclude claims for common law damages.
    It is fair to say that not all of the cases can be easily reconciled.

[43]

It
    is generally accepted that employment contracts are to be interpreted somewhat
    differently from other contracts:
Wood v. Fred Deeley Imports Ltd.
,
    2017 ONCA 158, 134 O.R. (3d) 481, at paras. 26-28. This is so particularly
    because employees usually have less bargaining power than employers. Where a
    termination clause can reasonably be interpreted in more than one way, the
    interpretation that favours the employee should be preferred:
Wood
, at
    para. 28.

[44]

Furthermore,
    where an employment contract is prepared by the employer, on a more or less
    take-it-or-leave-it basis, the ordinary
contra proferentem
rule would
    require that, in the case of ambiguity, the more favourable interpretation
    should be given to the non-drafting party:
Consolidated-Bathurst Export
    Ltd. v. Mutual Boiler and Machinery Insurance Co.
, [1980] 1 S.C.R. 888, at
    pp. 899 and 900.

[45]

The
contra proferentem
principle applies only where there is a genuine
    ambiguity:
Oudin v. Le Centre Francaphone de Toronto
, 2015 ONSC 6494,
    27 C.C.E.L. (4th) 86; affd 2016 ONCA 514, 34 C.C.E.L. (4th) 271, leave to
    appeal refused [2016] S.C.C.A No.391. As stated by Dunphy J. at para. 53, 
Contra
    proferentem
is not a means of finding the
least favourable
interpretation to the employee with a view to invalidating the contract in
    whole or in part.  Also see Geoff R. Hall,
Canadian Contractual
    Interpretation Law
, 3rd ed. (LexisNexis Canada: 2016), at p. 80, where the
    author states:

Ambiguity means something more than the mere existence of
    competing interpretations, otherwise parol evidence would be admitted in
    virtually every case. Thus the question of whether there is ambiguity is to be
    determined by an objective evaluation of whether there are two or more
    reasonable interpretations.

[46]

While
    the intention to exclude damages at common law must be clear, no particular
    form of words is required in order to achieve that result:
Clarke v.
    Insight Components (Canada) Inc.
, 2008 ONCA 837, 243 O.A.C. 196; and
Nemeth
    v. Hatch Ltd.
, 2018 ONCA 7, 418 D.L.R. (4th) 542.

(3)

Contractual Interpretation Generally

[47]

Contractual
    interpretation is now considered to be a question of mixed fact and law, to be
    reviewed on a standard of palpable and overriding error:
Sattva
, at
    para. 50; and
Ledcor Construction Ltd. v. Northbridge Indemnity Insurance
    Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 21.   An exception exists
    in the case of a standard form contract, the interpretation of which is to be
    reviewed on a standard of correctness:
Ledcor
, at para. 4.


[48]

In
Sattva
, Rothstein J. noted that it may be possible to identify
    extricable questions of law, which would be reviewed on a correctness standard.
    At para. 53, he stated, [l]egal errors made in the course of contractual
    interpretation include the application of an incorrect principle, the failure
    to consider a required element of a legal test, or the failure to consider a
    relevant factor. At para. 54, he stated that courts should be cautious in
    identifying extricable questions of law.

[49]

At
    para. 57, he emphasized that while surrounding circumstances will be considered
    in interpreting a contract, they must not overwhelm the words of the agreement.
    He stated:

While the surrounding circumstances will be considered in
    interpreting the terms of a contract, they must never be allowed to overwhelm
    the words of that agreement. The goal of examining such evidence is to deepen a
    decision-makers understanding of the mutual and objective intentions of the
    parties as expressed in the words of the contract. The interpretation of a
    written contractual provision must always be grounded in the text and read in
    light of the entire contract. While the surrounding circumstances are relied
    upon in the interpretive process, courts cannot use them to deviate from the
    text such that the court effectively creates a new agreement. [Citations
    omitted.]

[50]

An
    important canon of construction is that a contract must be interpreted as a
    whole, and not piecemeal.  As stated by Doherty J.A. in
Dumbrell v. The
    Regional Group of Companies Inc.
2007 ONCA 59, 85 O.R. (3d) 616, at para.
    53, [t]he text of the written agreement must be read as a whole and in the
    context of the circumstances as they existed when the agreement was created. See
    also La Forest and McLachlin JJ. in
BG Checo International Ltd. v. British
    Columbia Hydro and Power Authority
, [1993] 1 S.C.R. 12, at pp. 23 and 24, wherein
    they wrote, [i]t is a cardinal rule of the construction of contracts that the various
    parts of the contract are to be interpreted in the context of the intentions of
    the parties as evident from the contract as whole.

E.

The Principles Applied

[51]

For
    ease of reference, I will reproduce the termination clause again:

TERMINATION OF EMPLOYMENT

If you are terminated by IBM other than for cause, IBM will
    provide you with notice or a separation payment in lieu of notice of
    termination equal to the greater of (a) one (1) month of your current annual
    base salary or (b) one week of your current annual base salary, for each
    completed six months worked from your IBM service reference date to a maximum
    of twelve (12) months of your annual base salary. This payment includes any and
    all termination notice pay, and severance payments you may be entitled to under
    provincial employment standards legislation and Common Law. Any separation
    payment will be subject to applicable statutory deductions. In addition, you
    will be entitled to benefit continuation for the minimum notice period under
    applicable provincial employment standard legislation.  In the event that the
    applicable provincial employment standard legislation provides you with
    superior entitlements upon termination of employment (statutory entitlements)
    than provided for in this offer of employment, IBM shall provide you with your
    statutory entitlements in substitution for your rights under this offer of
    employment.

[52]

I
    will first address Mr. Amberbers alternate argument, which he characterizes as
    a cross-appeal, that the termination clause violates the ESA and is not saved
    by the last sentence of the clause. Mr. Amberber likens that sentence to a
    severability clause, held to be ineffective by this court in
Metaswitch,
    supra
.  I disagree.

[53]

In
    my view, the motion judge was correct in holding that the last sentence of the
    clause is effective to ensure that a terminated employee receives what he or
    she is entitled to under the ESA.  As Iacobucci J. stated in
Machtinger,
at
    pp. 1004-05, employers can readily make contracts with employees which
    referentially incorporate the minimum notice requirements of employment
    standards legislation, or otherwise take into account later changes to such
    acts. That being the case, the clause as a whole does not violate the ESA
.

[54]

The
    sentence in issue here is not analogous to a severability clause.  It does not
    purport to sever any part of the termination provision. Rather, it ensures that
    any portion of the termination clause that falls short of the ESA must be read
    up so that it complies with the ESA.

[55]

In the final analysis, there is no violation of the ESA, and the
    clause is not unlawful on that account.

[56]

I will now move to the issue on which the motion judge found in
    favour of Mr. Amberber. She held that the clause as a whole is ambiguous, and
    does not exclude Mr. Amberbers entitlement to damages at common law. She did
    so by construing the inclusive payment provision as applying only to the
    first part of the clause, which she characterized as the options provision. Because
    the inclusive payment provision is not repeated after the concluding sentence
    of the clause, (the failsafe provision) she held that it is not clear that
    the inclusive payment provision is meant to apply to the failsafe provision. Thus,
    according to the motion judge, it is ambiguous as to whether, in a case that is
    governed by the failsafe provision (that is, where the employee is guaranteed
    the minimum standard under the ESA), the parties intended to exclude
    entitlements at common law.

[57]

In the result, the motion judge held that the provision is unenforceable,
    and that Mr. Amberber is entitled to damages at common law rather than the
    amounts required to be paid pursuant to the termination clause.

[58]

With respect, I am unable to agree with the motion judges
    reasoning or the result.

[59]

The fundamental error made by the motion judge is that she
    subdivided the termination clause into what she regarded as its constituent
    parts and interpreted them individually. In my view, the individual sentences
    of the clause cannot be interpreted on their own. Rather, the clause must be
    interpreted as a whole.

[60]

When read as a whole, there can be no doubt as to the clauses
    meaning.

[61]

The parties have set out a formula for calculating the amounts
    owing to a terminated employee. The amounts owing include any entitlement under
    employment standards legislation and the common law. To the extent that
    employment standards legislation provides for something superior, the employee
    will receive the statutory entitlement.

[62]

To the extent that the motion judge relied on the placement of
    the inclusive payment provision within the clause, she erred. By holding that
    because it was placed between the options provision and the failsafe provision
    it only applies to the options provision, she failed to read the clause as a
    whole. The failsafe provision itself modifies the options provision, and
    ensures that it is read up so that it complies with the ESA. To hold that the
    inclusive payment provision applies to only one part of the clause, but not the
    other, gives the clause as a whole a strained and unreasonable interpretation. In
    fact, if the inclusive payment provision were repeated at the end of the
    clause, as suggested by the motion judge, it would likely do little more than
    create confusion.

[63]

In my view, there is no ambiguity. As stated by Laskin J.A. in
Chilton
    v. Co-Operators General Insurance Co.
(1997), 32 O.R. 161 (C.A.), at p. 169,
    [t]he court should not strain to create an ambiguity where none exists.  In
    my view, the motion judge strained to create an ambiguity where none exists.

[64]

As stated by this court in
Deslaurier Custom Cabinets Inc. v.
    1728106 Ontario Inc.,
2017 ONCA 293, 135 O.R. (3d) 241, at para. 68, [t]he
    goals of certainty, clarity and consistency in the law dictate that missteps in
    the identification of controlling legal principles be characterized as
    questions of law subject to correctness review. Failure to read a disputed
    contract as a whole is a question of law that is extricable from a finding of
    mixed fact and law:
Deslaurier
, at para. 75.

[65]

The motion judge failed to apply well-established principles of
    construction.  She did not interpret the termination clause as a whole; she
    strained to find an ambiguity where none reasonably exists; and she deviated
    significantly from the text of the clause. In so doing, she committed
    extricable errors of law that are reviewable on a correctness standard.

[66]

It
    is clear that IBM complied with the termination clause, and in so doing also
    complied with the ESA. Mr. Amberber is entitled to nothing more.

F.

Disposition

[67]

For the foregoing reasons, I would allow the appeal and dismiss
    the action.

[68]

I
    would award IBM costs of the appeal in the agreed-upon amount of $8,000,
    inclusive of disbursements and applicable taxes. The motion judge awarded Mr.
    Amberber $12,500 in costs for the motion. I would reverse that order and award
    IBM costs of the motion in the amount of $12,500, inclusive of disbursements
    and applicable taxes.

Released: June22, 2018

D.K.
    Gray J. (
ad hoc
)

I
    agree Doherty J.A.

I
    agree S.E. Pepall J.A.


APPENDIX

Excerpts from
    the
Employment Standards Act, 2000
,
    S.O. 2000, c. 41

5
(1)
    Subject to subsection (2), no employer or agent of an employer and no employee
    or agent of an employee shall contract out of or waive an employment standard
    and any such contracting out or waiver is void.

(2)
    If one or more provisions in an employment contract or in another Act that
    directly relate to the same subject matter as an employment standard provide a
    greater benefit to an employee than the employment standard, the provision or
    provisions in the contract or Act apply and the employment standard does not
    apply.

54
No employer shall
    terminate the employment of an employee who has been continuously employed for
    three months or more unless the employer,

(a) has given to the
    employee written notice of termination in accordance with section 57 or 58 and
    the notice has expired; or

(b) has complied with
    section 61.

57
The notice of
    termination under section 54 shall be given,

(a) at least one week
    before the termination, if the employees period of employment is less than one
    year;

(b) at least two weeks
    before the termination, if the employees period of employment is one year or
    more and fewer than three years;

(c) at least three
    weeks before the termination, if the employees period of employment is three
    years or more and fewer than four years;

(d) at least four weeks
    before the termination, if the employees period of employment is four years or
    more and fewer than five years;

(e) at least five weeks
    before the termination, if the employees period of employment is five years or
    more and fewer than six years;

(f) at least six weeks
    before the termination, if the employees period of employment is six years or
    more and fewer than seven years;

(g) at least seven
    weeks before the termination, if the employees period of employment is seven
    years or more and fewer than eight years; or

(h) at least eight
    weeks before the termination, if the employees period of employment is eight
    years or more.

58
(1) Despite section 57, the employer shall give notice
    of termination in the prescribed manner and for the prescribed period if the
    employer terminates the employment of 50 or more employees at the employers
    establishment in the same four-week period.

60
(1) During a notice
    period under section 57 or 58, the employer,

(a) shall not reduce
    the employees wage rate or alter any other term or condition of employment;

(b) shall in each week
    pay the employee the wages the employee is entitled to receive, which in no
    case shall be less than his or her regular wages for a regular work week; and

(c) shall continue to
    make whatever benefit plan contributions would be required to be made in order
    to maintain the employees benefits under the plan until the end of the notice
    period.

61
(1) An employer may
    terminate the employment of an employee without notice or with less notice than
    is required under section 57 or 58 if the employer,

(a) pays to the
    employee termination pay in a lump sum equal to the amount the employee would
    have been entitled to receive under section 60 had notice been given in
    accordance with that section; and

(b) continues to make
    whatever benefit plan contributions would be required to be made in order to
    maintain the benefits to which the employee would have been entitled had he or
    she continued to be employed during the period of notice that he or she would
    otherwise have been entitled to receive.

63
(1) An employer severs
    the employment of an employee if,

(a) the employer
    dismisses the employee or otherwise refuses or is unable to continue employing
    the employee;

(b) the employer
    constructively dismisses the employee and the employee resigns from his or her
    employment in response within a reasonable period;

(c) the employer lays
    the employee off for 35 weeks or more in any period of 52 consecutive weeks;

(d) the employer lays
    the employee off because of a permanent discontinuance of all of the employers
    business at an establishment; or

(e) the employer gives
    the employee notice of termination in accordance with section 57 or 58, the
    employee gives the employer written notice at least two weeks before resigning
    and the employees notice of resignation is to take effect during the statutory
    notice period.

64
(1) An employer who
    severs an employment relationship with an employee shall pay severance pay to
    the employee if the employee was employed by the employer for five years or
    more and,

(a) the severance
    occurred because of a permanent discontinuance of all or part of the employers
    business at an establishment and the employee is one of 50 or more employees
    who have their employment relationship severed within a six-month period as a
    result; or

(b) the employer has a
    payroll of $2.5 million or more.

65
(1) Severance pay under
    this section shall be calculated by multiplying the employees regular wages
    for a regular work week by the sum of,

(a) the number of years
    of employment the employee has completed; and

(b) the number of
    months of employment not included in clause (a) that the employee has
    completed, divided by 12.

***

(5)
    An employees severance pay entitlement under this section shall not exceed an
    amount equal to the employees regular wages for a regular work week for 26
    weeks.

***

(7)
    Subject to subsection (8), severance pay under this section is in addition to
    any other amount to which an employee is entitled under this Act or his or her
    employment contract.

***

(8) Only the following
    set-offs and deductions may be made in calculating severance pay under this
    section:

1. Supplementary
    unemployment benefits the employee receives after his or her employment is
    severed and before the severance pay becomes payable to the employee.

2. An amount paid to an
    employee for loss of employment under a provision of the employment contract if
    it is based upon length of employment, length of service or seniority.

3. Severance pay that
    was previously paid to the employee under this Act, a predecessor of this Act
    or a contractual provision described in paragraph 2.

66
(1)
    An employer may pay severance pay to an employee who is entitled to it in
    instalments with the agreement of the employee or the approval of the
    Director.

(2) The period over which instalments can be paid must
    not exceed three years.

(3) If the employer fails to make an instalment
    payment, all severance pay not previously paid shall become payable
    immediately.


