The Latest on Employees and the Sale of an Employer’s Business

An employee is notified that the business he works for has been sold. The purchaser asks the employee to stay on and continue working. What is the position of the employee at common law?

The recent decision of the Court of Appeal for Ontario in Krishnamoorthy v. Olympus Canada Inc. provides useful guidance on this question.

In this case, the plaintiff worked for Carsen Group Inc., a Canadian distributor for Olympus America Inc. He had worked for Carsen for five years until 2005 when Olympus America Inc. decided to terminate its distribution agreement with Carsen and continue distributing its products in Canada through a new related company, called Olympus Canada Inc. (“Olympus Canada”).

The plaintiff received an offer of employment from Olympus Canada under the terms of a written agreement. The terms of this agreement were substantially similar to the terms of his agreement with Carsen except for a termination provision that limited the amount of compensation the plaintiff would receive in the event of termination without cause. The new limit consisted of the greater of the minimum notice set out in the Employment Standards Act or four weeks’ pay per year of service with either Olympus Canada or Carsen up to a maximum of ten months.

The agreement also provided that the plaintiff would be treated as a new employee and that except for the reference to his employment with Carsen in the termination provision, his service with Carsen would not be recognized.

The plaintiff signed the agreement. He received no signing bonus or any additional compensation for doing so. He also received no pay in lieu of notice from Carsen.

The plaintiff continued to work as an employee of Olympus Canada until May, 2015 when his employment was terminated without cause. He was offered compensation in accordance with the termination provisions of the agreement. He refused the offer, sued Olympus Canada for damages for wrongful dismissal, and moved for summary judgment.

The plaintiff argued that the termination clause in the agreement was unenforceable because Olympus Canada had failed to provide him with consideration for amending his employment agreement to include the termination clause. He also argued that for the purpose of calculating his entitlement to notice, his employment with Carsen and Olympus Canada had been continuous.

The motion judge accepted the plaintiff’s argument, implicitly concluding that the offer of new employment by Olympus Canada did not amount to sufficient consideration and as a result, the termination clause was invalid. The plaintiff was awarded about $310,000 in damages.

Olympus Canada appealed to the Ontario Court of Appeal.

The Court of Appeal pointed out that at common law, if a sale of a business results in a change in the legal identity of the employer, there is a constructive termination of the existing employment. If the employee accepts employment by the purchaser of the business, he thereby enters into a new contract of employment.

Accordingly, the plaintiff’s employment with Carsen was terminated and he entered into a new contract with Olympus Canada. The only issue is as to whether or not there was consideration for the new contract.

The Court pointed out that it is well established that a promise to perform obligations under an existing contract is not consideration. There would have to be new or additional consideration to support a variation of an existing contract. In this case, however, the plaintiff did not agree to a variation of an existing contract but rather entered into an entirely new contract with a new employer. The fact that his day to day job did not materially change after the sale was not relevant.

The Employment Standards Act does provide that where there is a sale of a business and the employee becomes employed by the purchaser, the previous employment is deemed not to have been terminated for the purposes of the legislation and the employee will be deemed to have been employed continuously for the purpose of any subsequent calculation of the employee’s length or period of employment.

The Court pointed out that this provision related only to the calculation of the employee’s statutory benefits under the Act. That was not the issue in this case. The issue in this case was as to whether or not there was consideration for the new contract, so that the termination clause was valid. That is the finding that the Court made. The Court allowed the appeal and ordered that the matter proceed to trial.

The position of an employee where a business has been sold is not simple. As this case points out, the question of the extent to which the employee’s previous employment will be relevant to any future developments will vary with the issue at hand. If the employee signs a new employment agreement, by and large it is the provisions of that agreement that will determine the significance of the employee’s tenure with the previous employer.

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When Will the Court Refuse to Enforce an Arbitration Clause?

The recent Ontario Court decision in Hargraft Schofield LP v. Fluke provides some interesting reminders as to problems that can arise when one attempts to enforce an arbitration clause in a contract.

In this case, the plaintiff sued its former employer for an alleged breach of a variety of clauses in the employment agreement that had existed between them.

The parties had entered into an employment agreement in June 2000 with a three-year fixed term. The agreement included an arbitration clause that required that all disputes relating to the agreement would have to be referred to arbitration.

After the first employment agreement expired, the parties entered into a second employment agreement for another fixed term. That document did not include an arbitration clause. It did include a clause providing that it represented the entire agreement between them.

Over the ensuing years, the parties entered into further employment agreements as the terms of each one expired. Eleven years after the first agreement had been entered into, the defendant resigned.

Several months after the defendant’s resignation, the plaintiff sued in Ontario Court. Over the course of the next two years and ten months, the dispute proceeded through the litigation process. The parties exchanged pleadings, negotiated a discovery plan, agreed to a timetable for the balance of the steps in the action, exchanged sworn affidavits of documents, scheduled examinations for discovery, and conducted a mediation (which failed). The defendant then raised the argument that the matter should be proceeding by way of arbitration. The plaintiff refused to change its course of action and the defendant brought a motion for an order staying the action and referring the issues to arbitration.

The first question that the court dealt with had to do with whether or not there even existed an arbitration clause in the agreement between the parties. The initial employment agreement had contained such a clause but the court found that it had been superseded by the second employment agreement which did not include such a clause. Even though one of the subsequent employment agreements specifically indicated that the defendant’s employment would continue on the same terms and conditions as had been contained in all of the previous agreements, so that they were deemed to be incorporated in the most recent agreement, the court determined that as the first agreement had been superseded by the second, and the second included an “entire agreement” clause, there did not exist a valid arbitration clause upon which the defendant could rely.

One of the interesting points in this respect had to do with whether or not the court even had the jurisdiction to make this decision. The Ontario Arbitration Act provides that:

    “An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration and may in that connection rule on objections with respect to the existence or validity of the arbitration agreement.”

It was suggested that based on that provision, where there is an issue as to whether or not there even exists a valid arbitration clause, an arbitrator would have to be appointed to make that determination. Fortunately, in this case, the court took a more common sense approach and considered that this provision in the Act was not mandatory and that the court had the jurisdiction to determine whether or not an arbitration clause was in existence.

Secondly, the court went on to consider whether or not, if there did exist an arbitration clause, there was a valid basis for refusing to refer the matter to arbitration. The court pointed out that while the Arbitration Act requires the court to stay a proceeding that has been commenced in the face of a valid arbitration clause, there are exceptions. One of the exceptions arises where a motion for a stay of the proceeding is brought with undue delay.

The court pointed to the fact that almost three years had elapsed since the law suit had started. During that time, there had been a substantial amount of progress made along the litigation path. The court seemed to suggest that the defendant had either forgotten about the arbitration clause, or deliberately refrained from insisting on arbitration until after the mediation had failed. While not stated in the court’s decision, the idea that the defendant was now raising this argument merely to delay may also have been a concern.

In any event, the court dismissed the motion and the matter was ordered to proceed to trial in the usual course.

Among other things, this is an important reminder to parties to a contract with an arbitration clause that if they do not address the arbitration clause promptly but rather proceed by way of a legal action, they may lose the ability to insist on arbitration at a later date.

Termination Provisions in Employment Contracts Are Not Always Enforceable

The recent decision in Miller v. A.B.M. Canada Inc. provides a useful lesson on the extent to which one can rely on the termination provisions in an employment contract.

In this case, Mr. Miller joined ABM in 2009. He was given a draft employment contract with no deadline for him to sign it. It was set up with a series of appropriate headings and a plain language description of the terms appropriate to each heading. It contained a clause entitled “Termination” and at trial, Mr. Miller testified that he saw the heading and knew what it meant but did not read the terms set out under it.

The contract provided for a salary and in addition, ABM agreed to match Mr. Miller’s personal pension contributions up to a maximum of six percent of base salary. Mr. Miller was also to be provided with a monthly car allowance. These additional items appeared under the headings “Remuneration” and “Fringe Benefits” respectively.

Under “Termination”, the contract provided that Mr. Miller’s employment could be terminated without cause “upon being given the minimum period of notice prescribed by applicable legislation, or by being paid salary in lieu of such notice or as may otherwise be required by the applicable legislation”.

Mr. Miller began work in September 2009. His employment was terminated in January 2011. At that point, ABM provided Mr. Miller with two weeks of salary in lieu of notice, being salary in lieu of the minimum period of notice prescribed by Ontario’s legislation. He ultimately received a pay cheque for the two weeks’ salary plus vacation pay. The cheque did not include anything for his car allowance component or pension contributions.

Mr. Miller sued for damages, taking the position that the termination provision was null and void so that his entitlement should be determined on the basis of the common law. ABM’s position was that its obligations were limited to payment of salary under the contract, which payment was made. ABM acknowledged that Mr. Miller might be entitled to the pension contribution of six percent of base salary for two weeks plus a car allowance for two weeks, but nothing more.

The court observed that employees under a contract of employment for an indefinite period are entitled to reasonable notice of termination. This is to be treated as a presumption, rebutted only if there is a contract clearly specifying another period of notice and that other period is not inconsistent with legislated minimums.

The court felt that a termination provision specifying a minimum period of notice would be effective to rebut the common law presumption if the period is not contrary to the minimum provided by the legislation. However, the court observed that the length of the notice period is only part of the termination equation. One aspect is the length of time during which the employee is to be paid in lieu of notice. The amount to be paid to the employee during that period is a separate issue.

The law is clear that any provisions that attempt to contract out of minimum employment standards by providing for lesser benefits than those legislated as minimums, are null and void.

In this case, the termination clause provided that Mr. Miller’s employment could be terminated upon being paid salary in lieu of the minimum period of notice prescribed by the legislation. Mr. Miller, however, was also entitled to additional amounts for pension contributions and car allowance as part of his remuneration package.

The court found that the termination clause actually provided for compensation in an amount that was less than required by the legislation. The minimum employment standards legislation includes benefits. Salary, as defined in the contract and specified in the termination clause, did not.

As a result, the termination clause failed to comply with the provisions of the legislation. For that reason, it was null and void and incapable of rebutting the common law presumption that Mr. Miller would be entitled to reasonable notice under common law principles. The court went on to award damages equivalent to 2.5 months of base salary together with additional amounts for benefits.

It is easy to criticize this decision for being overly technical. One would have to assume that if the person at ABM who prepared that contract had been properly advised, the word “salary” in the termination clause would have been changed to take into account the entire remuneration package being provided to Mr. Miller. The additional amounts in issue were quite trivial. Nevertheless, as technical as this approach may appear, this is a reflection of the way courts interpret employment agreements. Generally speaking, employees tend to be given the benefit of any doubt. This case is yet another illustration of the care that has to be taken in drafting employment contracts and particularly their termination provisions.

Ontario Franchise Legislation – Tough Times for Franchisors

As any Ontario franchisor will tell you, the last few years have not been a walk in the park for owners of franchise systems. The current legislation in Ontario, known as the Arthur Wishart Act (Franchise Disclosure), 2000, has very strict rules about the type of disclosure that a franchisor (one who grants a franchise) must make to a perspective franchisee (one who is granted a franchise).  While that is fair and understandable, the Act also contains provisions which impose a significant penalty or disadvantage on a franchisor for even the most technical violation.

As an example, if the disclosure material contains the slightest deficiency, a franchisee can operate its business for up to two years before deciding whether or not to terminate the franchise agreement.

If the franchisee decides to terminate on that basis, it is entitled to receive back from the franchisor all of the money paid to the franchisor for the franchise rights including any money paid for equipment purchased for use in the business. Obviously, that equipment has to be returned.

The recent case of 2189205 Ontario Inc. v. Springdale Pizza Depot Limited deals with the question of the franchisor’s obligation to re-purchase equipment when the equipment itself is in poor condition.

In this case, the franchisor was ordered to pay compensation to the franchisee in a substantial amount for certain supplies and equipment payable upon the return of that equipment.

The franchisee had kept almost all of these items in storage in a barn in rural Ontario since 2009. It was now prepared to deliver this material to the franchisor in exchange for payment.

The franchisor argued that the franchisee was “unable” to return the supplies and equipment because of their poor condition given that they had been in storage for almost five years. The franchisor argued that the poor condition was at least partially as a result of what it alleged was improper removal and storage by the franchisee.

The Court ruled in favour of the franchisee. It determined that under the legislation, equipment has to be repurchased regardless of its condition. The Court considered that the legislation is remedial in nature and contains no duty on a franchisee to mitigate its damages. As a franchisee is entitled to be made whole, and as there was no evidence in this case of any deliberate acts of damage to the equipment by the franchisee, it was entitled to repayment of the entire purchase price. Its condition was irrelevant.

The legislation is indeed remedial in nature. It came into force as a result of an enormous amount of abuse heaped on unwitting and vulnerable franchisees by unscrupulous franchisors. However, cases like this must make one wonder as to whether or not the legislation simply goes too far.

The Latest on the Duty of Good Faith Between Contracting Parties

The recent case of Ashbury Cleaners v. Crisolago Holdings may make the murky world of the law concerning the duty of good faith between contracting parties even murkier.

In this case, the Judge described the action as a claim “for damages for breach of contract and bad faith.”  The Judge went on to say that “in order to be successful, the plaintiff must prove on the balance of probabilities that the defendant was acting in bad faith in deceiving the plaintiff of its stated intention.”

The law is very clear: there is no independent duty of good faith upon which one can sue for breach.  Parties are obliged to act in good faith towards each other in the implementation of a contract but one cannot sue for damages for bad faith.  There is a distinction, and this case is very close to the line.

The plaintiff worked part-time at a dry cleaning business owned and operated by the defendant.  The plaintiff offered to buy the dry cleaning business from the defendant and the parties agreed to a purchase price of $250,000.  Since the defendant owned the premises in which the business was located, they also agreed on a lease for the use of the premises for five years at $4,000 per month in rent.  The lease included a right of first refusal for the plaintiff to lease the premises again after the end of the five-year term, exercisable if the defendant decides at that time to continue to lease the premises out.  It was expressed this way because the defendant wanted the freedom to take the premises back after the five-year term to operate it himself.

At the end of the five-year term, the parties discussed a renewal.  While the evidence of the parties differed with respect to their discussions, it appears that at the very least the defendant indicated that if the plaintiff wanted to lease the premises for a further term, the rent would be $4,500 per month. The plaintiff indicated that she could not afford to pay that much and asked the defendant whether or not he would be interested in buying the business back. The defendant expressed such an interest and offered the plaintiff $35,000 on a take it or leave it basis. She took it.

Several days later, another individual passed by the store and bumped into the defendant.  This person knew the defendant because her employer had been a tenant at the premises several years before.  The defendant asked this individual if she wanted to buy the dry cleaning business.  She expressed interest and ultimately they agreed on a sale of the business for $225,000.  A lease with the purchaser was entered into for a five-year term at $4,500 per month to start, increasing to almost $5,500 in the final year of the lease.

The plaintiff then sued, insisting that the defendant had deceived her into giving up her right of first refusal.  The plaintiff advanced the theory that the defendant had the new buyer (and new tenant) in mind all along and persuaded the plaintiff to walk away from the business and the lease for very little compensation so that the business could be flipped at a significant profit.

The trial Judge found in favour of the defendant.  The Judge was satisfied that there was no evidence that the defendant had intended anything other than to take the premises back and operate the business himself until, by coincidence, he bumped into a person who turned out to be a new purchaser and new tenant.  There was no evidence of premeditation.

The problem I have is the trial Judge’s suggestion that the defendant would have been liable for damages if the plaintiff had been able to prove that the defendant had “breached the duty of good faith it owed to the plaintiff as its bargaining partner and deceived [the plaintiff] into signing away her rights under the lease.”  In my view, even if the defendant had deprived the plaintiff of her right of first refusal by misleading her about his intentions, the fact is that the new lease entered into with the new purchaser provided for rental amounts which the plaintiff had clearly indicated that she simply could not afford.  In other words, even had the plaintiff been told that the defendant had an opportunity to lease the space to someone else at $4,500 per month to start, increasing annually thereafter, the plaintiff would never have been able to match that offer.  For that reason alone, in my view, there is some considerable doubt whether or not the plaintiff was deprived of her rights.  In those circumstances, there is no question that the plaintiff would have been mistreated.  However, shabby treatment does not amount to a cause of action in and of itself.

The Cruel World of Insurance Policies

In the recent case of Certain Underwriters at Lloyd’s of London v All Spec Home Inspections and Mario Lucciola, the Court considered the availability of insurance coverage to a home inspector who missed a critical electrical problem on a home inspection resulting in a contractor’s death. At the very end of the decision, the Judge made reference to the “cruel world of claims-made-and-reported policies of insurance.” While colourful language of this nature is not unusual for the particular Judge in this case, it is not language that one sees very often.  Nevertheless, the facts of this case show how appropriate they are.

Mr. Lucciola, a self-employed home inspector, conducted an inspection of a property in St. Catharines in July 2010.  At the time, Mr. Lucciola had professional liability insurance on the basis of a one-year term renewed annually through to 2011.

Mr. Lucciola produced a report and photographs, making no reference whatsoever to any electrical problems.

On August 16, 2010, a contractor was doing work in the attic of the property.  He came into contact with an exposed energized bare copper wire.  He was electrocuted and he died.

Three days later, on August 19, 2010, Mr. Lucciola signed an application for professional liability insurance as he had done every year since 2006.  His insurance application required him to indicate whether or not any claim had been made against him in the last five years, and whether or not he was aware of any situation or circumstance which may result in a claim in the future.  Mr. Lucciola answered “no” to both questions.

The policy was then issued for a further period of one year.

Several days later, Mr. Lucciola was interviewed by an investigator for the Ministry of Labour, at which time he was asked whether or not he had noticed the wire in the attic. He indicated first that he had not noticed it and subsequently that he had but that he had tested it with an electrical tester and received no response from it.  For that reason, he had not made any note of it in his report.

About a year later, the Ministry of Labour conducted an inquest.  Subsequently, Mr. Lucciola signed yet another application for insurance.  It contained the same questions and he answered them in the same way.  Accordingly, a policy was issued for a further one year.

All of these policies contained language to the effect that if the insurer subsequently became aware that if any of these questions had been answered incorrectly, there would be no coverage for any claim or action emanating from a fact or circumstance that the applicant failed to mention in his application.

A lawsuit was subsequently brought against Mr. Lucciola.  He notified his insurer of the claim.  The insurer brought this application for an order that it had no obligation to provide insurance coverage.

The Court had little difficulty concluding that Mr. Lucciola should have known of the potential claim against him when he made his application for the insurance policy that was in effect at the time that he was sued, and should have answered “yes” to that question on his application.  As a result, the Court ruled that the insurer was entitled to deny coverage.

The interesting point in this case has to do with the type of insurance policy that was in place.  Mr. Lucciola’s policy was a “claims-made-and-reported” insurance policy, rather than an occurrence policy.  These are very different.  In a claims-made-and-reported policy, it is the transmittal to the insurer of notice of the claim that invokes coverage.  In an occurrence policy, coverage goes into effect when the incident upon which the claim is based actually takes place.

In this case, the incident (the contractor’s death) took place in August 2010.  The policy in place at that time had been applied for by Mr. Lucciola in 2009.  In 2009, when he answered “no” to the questions as to whether or not he was aware of a possible claim, he was being entirely accurate.  Had his policy been an occurrence policy, the insurer would have had to provide coverage.

In this case, however, the policy in place when coverage was invoked was the policy in effect at the time that Mr. Lucciola notified his insurer of the claim.  In applying for that policy, Mr. Lucciola had answered “no” to questions that should have been answered “yes”.  For that reason alone, Mr. Lucciola was disentitled to coverage.

This is obviously a critical distinction.  If you have professional liability insurance coverage, and you are not aware of the type of policy that protects you, this case is a good lesson on the importance of finding that out and keeping it in mind.