Court Of Appeal Summaries (February 21-24, 2017)

Following the Family Day long weekend, it was a relatively light week for the Ontario Court of Appeal's release of decisions. Below are the summaries for this week's civil decisions. Topics covered included family law, employment law, and the treatment of contingency fee agreements in the context of infant settlements.

Perhaps the most interesting decision of the week was the decision Wood v. Fred Deeley Imports Ltd. In this case, the Court of Appeal addressed the enforceability of an employment agreement under the Employment Standards Act and whether a termination clause contravened the Employment Standards Act.

TABLE OF CONTENTS:

Civil Decisions (click on case name to read summary):

Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158

Keywords: Employment Law, Termination Clause, Unenforceable, Ontario's Employment Standards Act

St. Jean v. Armstrong, 2017 ONCA 145

Keywords: Endorsement, Torts, Settlement, Costs, Fees and Disbursements, Contingency Fee Agreement, Accident Benefits Claim

Ralhan v. Singh, 2017 ONCA 147

Keywords: Endorsement, Matrimonial, Contempt, Access to Children, Mandatory Counselling, Restraining Order

Family and Children's Services of the Waterloo Region v. K.F. (Publication Ban), 2017 ONCA 157

Keywords: Endorsement, Interim Access, Crown Wardship, Child and Family Services Act

Malik v. Malik, 2017 ONCA 163

Keywords: Endorsement, Family Law, Support, Spousal Support, Child Support, Equalization, Expenses

For Civil Endorsements, click here

For Criminal and Ontario Review Board Decisions, click here

Civil Decisions:

Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158

[Laskin, Feldman and Hourigan JJ.A.]

Counsel: E. Meehan, Q.C., D. A. Lublin and M. W. Kitay, for the appellant A. Khan and S. P. Morley, for the respondent

Keywords: Employment Law, Termination Clause, Unenforceable, Ontario's Employment Standards Act,

Facts:

The respondent, Fred Deeley Imports, was the exclusive Canadian distributor for Harley-Davidson motorcycles, parts, apparel and accessories. In April 2007, Deeley hired the appellant, Julia Wood, as a Sales & Event Planner. Eight years later, at the end of April 2015, Harley-Davidson Canada entered into an agreement with Deeley to buy all of its assets. As a result of the buyout, Deeley immediately told all of its employees, including Wood, that their employment would terminate on August 4, 2015.

By the date of termination, Wood had worked for Deeley for eight years and four months. Her last annual compensation, including benefits, was approximately $100,000. When her employment ended, she was 48 years old. Wood signed an employment agreement the day after she started working for Deeley in 2007. The agreement contained the termination clause at issue in this appeal, including the following:

[The Company] is entitled to terminate your employment at any time without cause by providing you with 2 weeks' notice of termination or pay in lieu thereof for each completed or partial year of employment with the Company. If the Company terminates your employment without cause, the Company shall not be obliged to make any payments to you other than those provided for in this paragraph.... The payments and notice provided for in this paragraph are inclusive of your entitlements to notice, pay in lieu of notice and severance pay pursuant to the Employment Standards Act, 2000 ("ESA").

Deeley paid Wood her salary and benefits for her 13 weeks of working notice (May 1 to August 4, 2015). Deeley also paid her additional compensation, including a lump sum equivalent to eight weeks' pay. Nonetheless, Wood started an action against Deeley and brought a motion for summary judgment. She contended that the entire employment agreement was unenforceable, and, in the alternative, that the termination clause was unenforceable. She asked for damages equivalent to 12 months' notice of termination.

The motion judge dismissed Wood's motion and held that both the employment agreement and the termination clause were enforceable. But he also held that if he was wrong, Wood would be entitled to damages equal to her salary and benefits for a reasonable period of notice. In his view, reasonable notice was 39 weeks (nine months).

Issues:

Is Wood's employment agreement unenforceable because she signed it after she started working and was not provided with fresh consideration? Does the termination clause contravene the ESA because it excludes Deeley's statutory obligation to make benefit contributions during the notice period and it does not satisfy Deeley's statutory obligation to pay severance pay? Did the motion judge err by fixing the period of reasonable notice at nine months? Decision:

Appeal allowed. Effect was given to the Appellant's argument on the second issue.

Reasoning:

(1) Is Wood's employment agreement unenforceable?

The court found that a written employment agreement is not unenforceable merely because the employee signs it after starting to work. A written employment agreement might well be unenforceable if an employer includes in it a material term that was not part of the original employment relationship, but Deeley did not do so in this case.

The motion judge inferred that the terms of Wood's employment with Deeley were contained in the email and that she received the email before she started working on April 23, 2007. The motion judge's inferences were reasonable. In her evidence, Wood never claimed that on April 24, 2007, she was seeing her employment agreement for the first time. Nor did she claim that the agreement she signed contained any additional material term. Simply signing the agreement the day after she started working was no doubt a matter of administrative convenience. As Deeley did not unilaterally impose a new term of her employment, fresh consideration was not required. The court would not give effect to this ground of appeal.

(2) Does the termination clause contravene the ESA because it excludes Deeley's statutory obligation to make benefit contributions during the...