Mr. Quesnelle signed an employment letter on March 8, 2014, for the position of "Sales and Service Support". The employment letter did not reference the vehicle benefit, but there is no dispute that the vehicle was part of his negotiated compensation and that Camus paid for the vehicle and its operating costs for seven years. Camus paid for all operating costs, even though the vehicle was used primarily for personaluse, including commuting from his home in Oshawa to work in Mississauga, in addition to business use.

n this email Mr. Quesnelle estimated the cost of a new truck would be $55,000, plus $32,000 for annual operating costs (vehicle insurance, 407 ETR tolls, fuel, and maintenance). Paying the annual operating costs himself would amount to an approximately 30% pay cut. He took the position that if he was to continue working for Cleaver-Brooks they would have to purchase a new vehicle and continue to pay for the insurance, 407 ETR tolls and maintenance costs that they had paid since 2014.

On April 29, 2021, Mr. Quesnelle's lawyer wrote to Mr. Long, advising that Mr.Quesnelle took the position that Camus' refusal to continue to pay for a vehicle and its maintenance amounted to a reduction in his compensation of more than 30%, that this was constructive dismissal, and that Mr. Quesnelle resigned from his employment with Camus, effective May 14, 2021.

Mr. Quesnelle takes the position that he was "treated poorly" by Human Resources when he resigned. He complains, in particular, that on May 17, 2021, Camus Human Resources sent an email announcement to theother employees stating:

When an employer's conduct evinces an intention no longer to be bound by the employment contract, the employee has the choice of either accepting that conduct or changes made by the employer, or treating the conduct or changes as a repudiation of the contract by the employer and suing for wrongful dismissal....

In the present case, the Plaintiff argues that the employer's unilateral cessation of the vehicle funding altered an essential term of his employment contract. Although the provision of a fully paid vehicle was not in his written contract, the evidence clearly indicates that it was anegotiated term of his compensation when he was first hired, and the employer continued to honour this term of employment for seven years. Accordingly, I find that the provision of the vehicle and its maintenance was a term of his employment.

The Plaintiff argues that the termination clause in the employment contractis unenforceable because it permits the employer to end the employment relationship by providing him with only one or two of the three items they must provide to comply with the minimum requirements of the ESA.

The Plaintiff's argument is based on the use of the terms "only" and "and/or" in the termination clause: "you will be entitled onlyto notice of termination, termination pay and/orseverance pay as required by the Ontario Employment Standards Act." [Emphasis added]. The Plaintiff argues that this creates an ambiguity. It appears to permit the employer to provide pay without the continuation of benefits and suggests that the employer can choose to pay either termination pay or severance pay, but may not be required to pay both.

At common law, an employee hired for an indefinite period can be dismissed without cause, but only if the employer gives the employee reasonable notice. In Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986, [1992] S.C.J. No. 41, at p. 998 S.C.R., the Supreme Court characterized the common law principle oftermination of employment on reasonable notice "as a presumption, rebuttable if the contract of employment clearly specifies some other period of notice". [page486]Ontario employers and employees can rebut the presumption of reasonable notice by agreeing to a different notice period. But their agreement will be enforceable only if it complies with the minimum employment standards in the ESA. If it does not do so, then the presumption is not rebutted, and the employee is entitled to reasonable notice of termination.

Termination clauses should be interpreted in a way that encourages employers to draft agreements that comply with the ESA. If the only consequence employers suffer for drafting a termination clause that fails to comply with the ESA is an order that they comply, then they will have little or no incentive to draft a lawful termination clause at the beginning of the employment relationship...

Finally, the Court rejected the employer's position that the word "pay" was broad enough to include both base salary and benefits, stating, at para. 40

This argument cannot succeed. An employer and an employee can contract out of common law reasonable notice, but they must do so in clear and unambiguous language. The word "pay"does not clearly include both salary and benefits. At best for Deeley, the word is ambiguous. I would therefore interpret "pay"as referring only to salary or wages, not to benefits. That interpretation is consistent with the consideration I referred to earlier: where the language of a termination clause is unclear or can be interpreted in more than one way, the court should adopt the interpretation most favourable to the employee..

It is the inclusion of the word "only" that restricts the employer's obligation to pay, and therefore distinguishes this provision from the termination clause permitted by the Court of Appeal in the case of Roden v. Toronto Humane Society, 2005 CanLII 33578 (ON CA): Wood,at para. 57.

here are no circumstances under the ESA in which the employer could pay either termination pay "or" severance pay. If the employee qualifies for severance pay, it must be paid. If the employee does not qualify for severance pay, the employer does not have to pay it.

I accept the Plaintiff's position that the addition of the phrase "and/or" created an ambiguity: on one interpretation of the clause, it could be suggested that the employer could choose to pay either termination pay or severance pay, but was not required to pay both. Since this is an employment agreement, the existence of this ambiguity voids the termination clause.

In some of these cases the length of notice was increased because the employer had wrongfully alleged that the employee was terminated for cause.

In order to trigger this form of mitigation, the employer is obliged to offer the employee a clear opportunity to work out the notice period afterthe employee has informed the employer that he is treating the change in his contract as constructive and wrongful dismissal: Farwell v.

The basic principle in awarding damages for wrongful dismissal is that the terminated employee is entitled to compensation for all losses arising from the employer's breach of contract in failing to give proper notice. The 2022 ONSC 6156 (CanLII)

Page: 18damages award should place the employee in the same financial position he or she would have been in had such notice been given... In other words, in determining damages for wrongful dismissal, the court will typically include all of the compensation and benefits that the employee would have earned during the notice period

Summarize the Employer's position (what is the story from the Employer's point of view).