Penney v. Vipond Inc., 2011 ABQB 785

Court of Queen ’ s Bench of Alberta Citation: Penney v. Vipond Inc., 2011 ABQB 785 Date: 20111212 Docket: 0901 12634 Registry: Calgary Between: Greg Penney Plaintiff - and - Vipond Inc. Defendant _______________________________________________________ Reasons for Judgment of J.B. Hanebury, Master in Chambers _______________________________________________________ [ 1 ] Mr. Penney was dismissed without cause by Vipond Systems Group in January, 2009. He says that during the course of his employment he had sought the payment of outstanding overtime by his employer.

It was never paid. [ 2 ] When he was dismissed he signed a letter, referred to as a severance proposal. Attached to it was a release. Mr Penney signed the severance proposal and did not sign the release. The sums outlined in the proposal were directly deposited into his bank account. He then sued his former employer for the claimed overtime. It seeks to dismiss his claim summarily, saying that he has no claim in light of his acceptance of its severance proposal.

[3] Vipond argues that it is not necessary for the release to be signed for there to be a binding agreement between the parties: The Law of Dismissal in Canada 3rd ed., Howard A. Levitt (Aurora: Canada Law Book, 2011), p. 15-32-7; Imperial Oil Ltd. v. 416169Alberta Inc., 2002 ABQB para. 8-14; Fieguth Acklands Ltd. (1989), (BC CA), CarswellBC 88 (B.C.C.A.) paras. 39 -44. I agree. [4] Vipond argues that the doctrine of accord and satisfaction, as found in s. 13(1) of the Judicature Act, R.S.A. 2000 c.J-2, canalso end a claim.

I agree. [5] Accord and satisfaction occurs when an obligation is released by means of valuable consideration other than theperformance of the obligation itself. The Judicature Act states that part performance of an obligation, either before or after a breach,extinguishes the obligation when it is expressly accepted by a creditor in satisfaction, or when it is rendered pursuant to an agreementthat it will satisfy the obligation. This

section can be relied upon to end a claim where there has been a settlement: Middleton v. Bristol-Myers Canada Inc. [1988] B.C.W.L.D. 1491 at para. 44. [6] Vipond also argues that promissory estoppel can act to end a claim. I agree. [7] That doctrine provides that the party relying on the doctrine must establish that the other party has, by words or conduct,made a promise or assurance which was intended both to be acted upon and to affect their legal relationship. The representee mustestablish that he relied on the representation and acted on it or in some way changed his position: Maracle v. Travelers Indemnity Co. ofCanada (SCC), [1991] 2 S.C.R. 50. [8] The bar is high on a

summary dismissal application. The court must be satisfied that there is no genuine issue for trial: Kwanv. Superfly Inc., 2011 ABQB 343, para.23. The test is not in dispute. Vipond submits that it is clear that there is no genuine issue fortrial as with the signing of the letter and the subsequent payment Mr. Penney gave up his right to make any further claim against hisemployer. [9] I disagree. [10] The letter signed by Mr. Penney was drafted by his employer and could have been more clearly drafted.

It sets out in fourparagraphs what will be paid and how it will be paid and then says, in a separate paragraph: Without admitting liability, you will also receive a further 7 weeks of salary, subject to the usual deductions, provided that you sign a fulland final release in the form attached hereto. It says at the 7th and 8th paragraphs: Please review this offer and obtain advice if you feel it is required.

If this offer is acceptable, please sign your acceptance in the space provide (sic) below and return to us a signed release. [11] Above the signature it states: I, Greg Penney, have read this severance proposa (sic) and I understand it completely. I accept the offer fully, freely and without duress.

[ 12 ] This letter is open to two

interpretations. [ 13 ] It appears to separate out from the balance of the arrangement the payment of seven weeks salary, for which a release was required. It could be argued that the offer had two parts. The first part set out certain payments that would be made pursuant to statutory requirements and for pay in lieu of notice. No release was requested for that part of the offer. The second part of the offer, for seven weeks salary, was made subject to the provision of a release. It could be read that the acceptance of that part of the offer required the execution of a release. [ 14 ] Working against this

interpretation and in favour of there being only a single offer is the request that the letter be signed and a release be returned. However, even this requirement contemplates the two being executed at different times which could lead to an assumption that the release may or may not be forthcoming. [ 15 ] The final paragraph, which says that Mr. Penney accepts the offer fully, is also open to two

interpretations. It could be said that Mr. Penney is accepting the first part of the offer only and acknowledging the second part of the offer, ie. that if he signs the release he will receive a further seven weeks salary. Alternately, it could be said that Mr. Penney is accepting the entire offer. [ 16 ] Mr. Penney signed the letter the same day, apparently while at the offices of Vipond.

While it can be argued that in signing this letter he was agreeing to the entire arrangement, it can also be argued that he was only agreeing to the first part of the arrangement and, by not signing the release immediately, he had not yet accepted the second part of the arrangement. [ 17 ] In essence the question is whether there was a single offer, ie. one package, or an offer made up of two parts, which were capable of separate acceptance. [ 18 ] It is the latter that Mr. Penney says that he thought he was doing. In Mr.

Penney’s mind, he did not accept the second part of Vipond’s offer with the execution of the letter. It remained outstanding as he had yet to sign the release. This does not appear to be a question of buyer’s remorse. [ 19 ] Vipond points out that they subsequently paid the seven weeks salary to Mr. Vipond and he did not refuse it. Mr. Vipond responds that he was unaware of that payment and its purpose as it was one of the payments made by the company by direct deposit to his account, and he continued negotiating with the company.

He said he only discovered the payment had been made after consultation with his lawyer two weeks ago. [ 20 ] The letter was drafted by Vipond. It is unclear. Therefore, the subjective intent of the parties can be considered to interpret the written words: Gainers Inc. v. Pocklington Holdings Inc., 2000 ABCA 151 , para. 20 . The understanding of Mr. Penney as to what he thought he was agreeing to can be considered. While Vipond may have thought Mr. Penney’s signature represented a clear representation upon which they could rely, the document that Vipond drafted was ambiguous. [ 21 ] Had Mr.

Penney knowingly accepted the funds offered, that would have ended the matter. But for the purposes of this

summary dismissal application the court accepts his evidence that he had no idea the monies had been paid to him. [ 22 ] This is not the situation found in Dow Chemical Canada Inc. v. Shell Chemicals Canada Ltd., 2010 ABCA 126 .

Summary judgment is appropriate where a contract is unambiguous. In my view, Mr. Penney’s

interpretation of the agreement merits further consideration by this Court and the issue of whether Mr. Penney has released Vipond is a genuine issue for trial. [ 23 ] It follows that

summary dismissal is refused. If the parties cannot agree on the question of costs, they may make an application within thirty days of the release of this decision for a determination of that issue.

Heard on the 08 th day of December, 2011. Dated at the City of Calgary, Alberta this 12 th day of December, 2011. J.B. Hanebury M.C.C.Q.B.A. Appearances: Tyler F.A. Derksen Fraser Milner Casgrain LLP for the Plaintiff Sean O ’ Neil Greenan O ’ Neil Dunn LLP for the Defendant