Jan 23

Allegation of resignation must be backed up by facts: Mah v. ARJ Investments Ltd.

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In Mah v ARJ Investments Ltd, 2019 ONSC 4927, the Plaintiff, Gary Mah, was an employee of the Defendant, ARJ Investments Ltd. The Plaintiff worked in the company for four years, was 56 years old and a senior executive when his employment came to an end.

The nature of how his employment came to an end was the crux of the issue before the Court and the parties came with two dramatically different versions of events.

The Defendant argued that the Plaintiff resigned and relied on letters where the employee was resigning as a signing authority. The employee instead argued he was terminated and those letters were merely good practice when a signing authority leaves an organization, for any reason.

The Court found in favour of the Plaintiff quoting Kieran v. Ingram Micro Inc., 2004 CanLII 4852 (ON CA) which found “that a resignation must be clear and unequivocal. To be clear and unequivocal, the resignation must objectively reflect an intention to resign, or conduct evidencing such an intention”. Resignation relating to signing authority was not clear and unequivocal evidence of an intention to resign from his position of employment. Accordingly, the judge considered the plaintiff to be terminated.

The court then moved to address the length of the required notice setting the notice period at nine (9) months including a pro-rated bonus despite the employer’s argument that the bonus was solely at their discretion. This is significant as this award amounted to over two months per year of service for this employee. Overall the judge awarded the Plaintiff $157,782.33 in damages, $2,000 in pre-judgment interest, and partial indemnity costs of $27,500 in costs.

What is also noteworthy of this decision is that it was all determined on a one-day summary judgment motion. Employee-side counsel often hears that when there is a large factual dispute between the parties it is impossible to determine on the quick, efficient, and mostly paper record of a summary judgment motion. This author would highlight that when the factual dispute can be determined through the paper record, a lengthy and expensive trial is not necessary.

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