2018 QCCA 873, 2018 QCCA 873

GVE Global Vision inc. c. Tesson 2018 QCCA 873 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026097-162 (500-17-051931-098) DATE: May 25, 2018 CORAM: THE HONOURABLE JACQUES J. LEVESQUE, J.A. MANON SAVARD, J.A. ROBERT M. MAINVILLE, J.A. GVE GLOBAL VISION INC. APPELLANT – INCIDENTAL RESPONDENT – Defendant v. RALPH TESSON RESPONDENT – INCIDENTAL APPELLANT – Plaintiff JUDGMENT [ 1 ] GVE Global Vision Inc. appeals from a judgment of the Superior Court, District of Montreal (the Honourable Gary D.D.

Morrison), dated April 22, 2016, ordering it to pay Ralph Tesson an amount of $109,357.28 as an indemnity in lieu of a termination notice and $5,000 in moral damages. [ 2 ] Ralph Tesson, for his part, has initiated an incidental appeal seeking from GVE Global Vision Inc. an additional $20,330.56 as part of the indemnity in lieu of termination notice as well as an additional amount of $20,000 in moral damages. [ 3 ] For the reasons of Mainville, J.A., with which Levesque and Savard JJ.A concur, THE COURT: [ 4 ] DISMISSES GVE Global Vision Inc.’s appeal; [ 5 ] GRANTS in part Ralph Tesson’s incidental appeal; [ 6 ] REPLACES the amount of “$109,357.28” in the order set out in the judgment of the Superior Court dated April 22, 2016 with an amount of “$111,688.66”; [ 7 ] CONFIRMS that order in all other respects; [ 8 ] THE WHOLE with legal costs in favour of Ralph Tesson.

JACQUES J. LEVESQUE, J.A. MANON SAVARD, J.A. ROBERT M. MAINVILLE, J.A. M tre Paul Déry-Goldberg SPIEGEL, SOHMER, INC. For the appellant

M tre Alain Daigle For the respondent Date of hearing: May 16, 2018 REASONS OF MAINVILLE, J.A. [ 9 ] GVE Global Vision Inc. (“ Global ”) appeals from a judgment of the Superior Court, District of Montreal (the Honourable Gary D.D. Morrison) ( 2016 QCCS 1862 ), dated April 22, 2016, ordering it to pay its former Vice-President of Sales and Marketing, Ralph Tesson (“ Tesson ”), an amount of $109,357.28 as an indemnity in lieu of appropriate termination notice, a bonus, commissions and vacation pay. Global was also ordered to pay Tesson an additional $5,000 in moral damages.

CONTEXT [ 10 ] Global specializes in manufacturing a unique automated proof-reader system for label printing. The system is sold worldwide, primarily to pharmaceutical, printing and packaging companies. Global was founded by Ruben Malz (“ Malz ”) who invented the system it sells and who largely built the company. [ 11 ] As Global was growing quickly, the decision was made to hire a Chief Operating Officer and a Vice-President of Sales and Marketing. David Perlis (“ Perlis ”) and Tesson were hired for these respective positions. [ 12 ] Tesson began working for Global on February 12, 2007.

An employment agreement was signed in mid-March 2007. It provided for the following “Termination of Employment” clause: 2.3 Termination of Employment. The Employee’s employment may be terminated by the Employer: (

i) for just cause at any time by the Employer with 10 business days notice (5 days notice for less than one year) […] (ii) without cause, upon giving the equivalent of one month's salary per uninterrupted year of service up to a maximum of six (6) months, as well as all commissions owed; and the Employee hereby waives any claim to further notice or compensation and the Employee agrees that the foregoing notice period(

s) is deemed to conclusively be reasonable notice of termination or, (iii) the first 3 months is on a trial basis. [ 13 ] The appendices to this employment agreement set out a compensation plan for Tesson involving a base salary, commissions on sales and a bonus based on sales growth. The employment agreement also provides for three weeks of vacation and various employee benefits. [ 14 ] On October 29, 2007, without any warning, Tesson was informed by Malz that he was dismissed, effective that day.

THE SUPERIOR COURT JUDGMENT [ 15 ] Before the Superior Court, Global argued that it had dismissed Tesson for cause and that any commissions owed to him had been settled in accordance with a verbal agreement to modify the commission payment scheme set out in the written employment agreement. [ 16 ] The trial Judge rejected both arguments. [ 17 ] After reviewing the evidence, the Judge ruled that Global had failed to meet its burden of proof to establish a serious reason to dismiss Tesson, including Global’s assertions that Tesson was not meeting the standards expected of him, that he lacked professionalism, that he failed to respect the rules related to his travel expenditures and entertainment expenses, and that he failed to produce results at a convention held in Europe. [ 18 ] The Judge then turned his attention to the appropriate reasonable notice period to dismiss Tesson without cause.

In light of articles 2091 and 2092 of the Civil Code of Québec (“ C.C.Q. ”), the Judge disregarded the notice period set out in the employment agreement and instead found that a six-month notice was required.

The Judge added that the indemnity in lieu of notice should include the base salary, the commissions, the bonus if the target sales were met and all other employment benefits which would be owed under the employment agreement. [ 19 ] Taking into account Tesson’s annual base salary of $100,000, the Judge ordered Global to pay him $50,000, representing six months of base salary, from which he deducted the two weeks' salary which had been provided to Tesson following his dismissal.

Global thus owed a total of $46,154 with respect to Tesson’s base salary. [ 20 ] Turning to the bonus and commissions set out in the employment agreement, the Judge noted that Global had provided little useful sales information which could be used to determine both the bonus and the commissions owed. The Judge identified three issues in this respect: [150] Firstly, are the "sales" figures to be based on actual sales or on purchase orders (PO's)?

[151] Secondly are the "sales" figures to reflect sales by the Defendant or by GVE Global Vision Sales Inc. ("Sales Inc."), given that Global sells only to Sales Inc., which in turn is the only company that sells to third-party customers? [152] Thirdly, what is the appropriate proof to use for determining the applicable sales figures and what is the amount of "sales" to be applied? [ 21 ] With respect to the first question, the Judge concluded that purchase orders were to be used as the employment agreement specified that the sales data used to calculate the commissions and the bonus were to come from Global’s CRM system, which booked purchase orders as sales. [ 22 ] Turning to the second question, the Judge found that the answer depended on which purchase orders were booked in Global’s CRM system.

The Judge found that both Global’s and Sales Inc.’s purchase orders had to be considered. [ 23 ] As for the third question, the Judge strongly criticizing Global for not providing clear documentation on the issue. The Judge concluded from the evidence as a whole that total sales for the applicable period were US $6,096,503.54 for Q1 2007 to Q4 2007 ending on January 31, 2008, to which he added additional sales of US $424,620.38 for the period of February 1, 2008 to April 29, 2008.

For these purposes, the Judge used a working document (Exhibit P-25) which had not been filed as evidence, but which reflected the sales information set out in other documents admitted into evidence as Exhibit P-24. [ 24 ] Based on these numbers, the Judge concluded that, given the substantial increase in sales for 2007, Tesson was entitled to the $5,000 bonus set out in the employment agreement. [ 25 ] The Judge dismissed Global’s contention that the commission scale set out in the employment agreement had been modified by a subsequent agreement.

Applying the commission scale set out in the employment agreement, he ruled that Tesson was entitled to US $70,230 in commissions, of which US $22,480 had already been paid to him, leaving an outstanding balance of US $47,750. [ 26 ] Since this amount had to be converted into Canadian currency, Tesson proposed using the conversion rate at the time of the hearing: 1.4592. Global sought to apply a conversion rate of 0.96, its purported internal conversion rate for Q3 2007. The Judge decided to apply a conversion rate of 1.0981, the rate on the date the proceedings were initiated.

Using this conversion rate, he accordingly set the commissions still owing by Global at $52,434.28 (US $47,750 X 1.0981). [ 27 ] The Judge also held that the three weeks’ vacation pay provided for in the employment agreement, $5,769, was payable to Tesson. [ 28 ] With respect to moral damages, a few days before dismissing Tesson, Malz had talked to the entire sales team outside of Tesson’s presence. At that meeting, Malz informed the staff that there would be a change in leadership. The Judge found this had been done in bad faith and with the intention of demeaning Tesson in front of his staff.

This event, as well as other factors related to the manner in which Global treated Tesson during and after his dismissal, lead to the Judge’s decision to award Tesson $5,000 in moral damages. [ 29 ] Finally, the Judge rejected Global’s submission that the interest and additional indemnity on the award should be calculated from September 10, 2012, due to a trial postponement granted by the Honourable Zerbisias J.S.C. following Tesson’s request for additional sales information from Global.

The Judge found that the postponement was neither abusive nor unreasonable since Global had provided Tesson little financial information respecting the sales on which commissions could be calculated. The Judge accordingly ordered Global to pay interest and the additional indemnity relating to revenue ($109,357.28) from April 29, 2008, the expiry of the six- month reasonable notice period, and from January 15, 2016 in relation to moral damages ($5,000), that being the date Tesson had instituted the legal proceedings in which moral damages were first claimed.

ISSUES [ 30 ] Global raises four issues which may be summarized in three points:

(1) Did the Judge err in setting the reasonable notice period at six months?

(2) Did the Judge err in establishing the sales on which the bonus and commissions were to be calculated by relying on inadmissible evidence and then imposing on Global the burden of contradicting that evidence?

(3) Did the Judge err in awarding moral damages? [ 31 ] In his incidental appeal, Tesson raises three other issues:

(4) Did the Judge err in setting the conversion rate of US dollars?

(5) Did the Judge commit a calculation error with respect to the commissions owed?

(6) Should the amount awarded for moral damages be increased? ANALYSIS First Question: Did the Judge err in setting the reasonable notice period at six months? [ 32 ] Global submits that the Judge erred by not applying the notice period set out in the employment agreement, namely one month per year of service. In Global’s view, had the Judge applied the agreement, he would have been bound to find that the two-weeks of salary provided to Tesson at the time of his dismissal was sufficient since he had not then completed a full year of service.

[33] This submission is obviously wrong. Articles 2091 and 2092 C.C.Q. are clear: 2091. Either party to a contract for anindeterminate term may terminate it by givingnotice of termination to the other party. The notice of termination shall be given in areasonable time, taking into account, inparticular, the nature of the employment, thespecific circumstances in which it is carried onand the duration of the period of work. 2091. Chacune des parties à un contrat à duréeindéterminée peut y mettre fin en donnant àl’autre un délai de congé.

Le délai de congé doit être raisonnable et tenircompte, notamment, de la nature de l’emploi,des circonstances particulières dans lesquelles ils’exerce et de la durée de la prestation detravail. 2092. The employee may not renounce his rightto obtain an indemnity for any injury he sufferswhere insufficient notice of termination is givenor where the manner of resiliation is abusive. 2092.

Le salarié ne peut renoncer au droit qu’il ad’obtenir une indemnité en réparation dupréjudice qu’il subit, lorsque le délai de congéest insuffisant ou que la résiliation est faite demanière abusive. [34] As Justice Deschamps noted in Isidore Garon:[1] [36] The right to notice provided for in art. 2091 C.C.Q. is a personal right, and what it consists of depends on the individualcircumstances of the employee who claims it. As Baudouin J.A. said in Standard Broadcasting Corp. v.

Stewart, (QCCA), [1994] R.J.Q. 1751 (C.A.): [translation] What constitutes reasonable notice of termination under a contract with an indeterminate term is basically a question of factthat will turn on the circumstances of the specific case, and it will be assessed on the basis of a number of known parameters: the natureand importance of the position; whether the employee left another job to take the position; the employee’s age, years of service andexperience; how easy or difficult it is to find an identical or similar position; subsequent efforts to find work; and whether or not therewere serious grounds for the dismissal. [Footnote omitted; p. 1758.] [37] Not only must notice of termination be determined individually, but the employee may not agree on it in advance.

Because of theimperative rule set out in art. 2092 C.C.Q., notice of termination must be assessed at the time it takes effect, that is, when theemployment terminates (see Garcia Transport Ltée v. Royal Trust Co., (SCC), [1992] 2 S.C.R. 499, at pp. 530-31). [35] In his dissenting reasons in Isidore Gagnon, Justice LeBel expressed similar views:[2] [172] Compensation will usually, especially when the employer terminates the contract, be paid in lieu of notice of termination ofemployment. Such compensation will represent the employee’s earnings for the length of the notice of termination.

To determine thelength of the notice period, a court must take account of the circumstances of each case, the character of the employment, theemployee’s length of service, the employee’s age and the availability of similar employment having regard to the employee’s experience,training and qualifications (see Machtinger v. HOJ Industries Ltd., (SCC), [1992] 1 S.C.R. 986, at p. 999; Farber v.Royal Trust Co., (SCC), [1997] 1 S.C.R. 846, at para. 48). [173] Under art. 2092 C.C.Q., employees may not renounce their right to obtain compensation for any injury they suffer where thenotice of termination is not reasonable.

Since such compensation is vital and is considered an essential element of the contract ofemployment, the legislature has made it a matter of public order for employees, who are very often in a vulnerable position when theylose their jobs. [36] Moreover, as Marcotte J.A. recently stated in Structures Lamerain inc. c.

Meloche,[3] in case of termination without cause theemployee is entitled, by law, to reasonable notice irrespective of any restrictions which may be set out by contract and need not firstestablish that the provisions of the contract dealing with such notices are null. [37] Global further submits that the Judge erred in evaluating the various factors to be considered when determining a reasonablenotice period.

Global thus seeks this Court’s intervention to reduce the notice period to two weeks. [38] As noted in Isidore Gagnon, what constitutes reasonable notice is essentially a question of fact that turns on the circumstancesof each case.[4] This Court will only intervene if the appellant identifies a palpable and overriding error or if the assessment is clearlyunreasonable or is based on factors which are irrelevant.[5] [39] In this case, the Judge considered the relevant factors, including Tesson’s senior position, his experience, his age, his length ofservice and the fact it took him 14 months to find employment after his dismissal.

Global argues that the Judge should have given moreweight to Tesson’s age (41 years at the time of dismissal) and the short duration of his service (8½ months) to reduce the notice period. Itis not the role of the Court to reweigh the factors identified by the Judge unless it can be established that the overall assessment isunreasonable. This is not the case here. The test is not whether another judge would have decided otherwise, but rather if the six-monthnotice granted by the Judge in this case is plainly unreasonable in light of the identified factors. It is not.

Contrary to Global’s assertions,it is neither beyond the bounds of other decided cases.[6] [40] The only palpable error identified by Global concerns Tesson’s previous work experience, which the Judge assessed asapproximately 25 years in sales. In light of Tesson’s age at the time of hiring, it is clear that the Judge overestimated his sales experience.However, it is also clear that Tesson had more than 15 years of sales experience at the time of his dismissal, since this was the minimumqualification Global required to hire him.

[ 41 ] Though a palpable error was made with respect to the length of Tesson’s prior sales experience, that error was not overriding. The Judge’s conclusion would have been the same had Tesson’s sales experience been properly identified as more than 15 years rather than approximately 25 years, particularly when consideration is given to all the factors identified by the Judge and the overall circumstances of this case.

Second Question: Did the Judge err in establishing the sales on which the bonus and commissions were to be valued by relying on inadmissible evidence and then imposing on Global the burden of contradicting that evidence? [ 42 ] To determine the quantum of sales for the purpose of calculating the commissions owed, the Judge relied in part on Tesson’s calculations set out in a spreadsheet identified as Exhibit P-25. This spreadsheet was not filed as evidence, but rather as a working document.

This spreadsheet adds up sales and purchase orders supplied by Global and which were admitted into evidence as Exhibit P- 24. [ 43 ] Global contends that by relying on the spreadsheet, the Judge erred in law and committed a palpable error of fact leading to a procedural inequity.

These submissions are unsustainable considering the context in which the spreadsheet was submitted to and used by the Judge. [ 44 ] The proceedings and trial in the Superior Court were characterized by Global’s resistance to providing useful sales information from which to calculate the commissions owed to Tesson, as the Judge repeatedly noted: [145] That [sales] data for those quarters has been the subject of many heated exchanges between the parties and much argument before the Court. [146] Plaintiff alleges that Global has been less than forthcoming in supplying the data, while the latter alleges that Tesson has been less than clear and precise in his requests for such financial information. [147] The end result is that the available information is less than precise.

The parties have focused primarily on procedural technicalities rather than on transparent cooperation. [148] And although this has certain importance for the bonus, it is even more important when it comes to evaluating what commission, if any, may be due to Tesson in relation to the notice period. Calculations for both are dependent on the applicable sales data. […] [166] [Global’s] Accountant Tuwaig's sales numbers are only of secondary interest as he does not represent the sales numbers as per Global's actual quarters, using other dates for some unknown reason.

This makes precise comparison impossible for the parties and the Court. [167] The reason for Tuwaig having presented information in this way is difficult to understand, and one would be entitled to at least wonder whether it could possibly have been done for the purpose of rendering difficult a clear and precise calculation of sales in relation to Tesson's compensation. That said, the Court need not actually conclude in that regard. […] [249] The Court cannot conclude that Tesson's request for a postponement in 2012 was abusive or unreasonable.

Plaintiff had allegedly faced difficulties accessing financial information, which led to the postponement. [250] The lack of certain financial information from Global during the Hearing in this matter speaks unfavorably to Global's request. [ 45 ] In fact, on September 10, 2012, the Honourable Zerbisias J.S.C. postponed the original trial date in order for Global to provide Tesson with useful sales information. What Tesson received were numerous documents totaling over 200 pages and consisting of purchase orders and Global’s sales invoices from October 29, 2007 to April 30, 2008.

These documents were filed collectively as Exhibit P-24. [ 46 ] At trial, Tesson submitted as Exhibit P-25 a spreadsheet he had prepared identifying and consolidating the sales information set out in the documents filed as Exhibit P-24. Global objected to the filing of the spreadsheet, which led to the following exchange while Tesson was being questioned about Exhibit P-25: [7] Me ALAIN DAIGLE [Tesson’s attorney]: Q - Who prepared this document? A - I did. Q - How did you proceed?

A - I took P-24 and I added it up in a spreadsheet, such that I could look at the dates and view by month, quarter, et cetera, the amount of sales. […] Me PAUL DÉRY-GOLDBERG [Global’s attorney]: […]

We have not had the opportunity to review this document to make sure that it actually does correspond to what had been provided as Exhibit P-24. This document does not correspond with the rules of best evidence. The rules of best evidence are the originals that have been provided as Exhibit P-24. […] Rules of best evidence being what they are, the document should be dismissed out of hand. Although it could have been a useful tool for this Court had it been provided to us earlier and had we been able to validate that it’s actually correct, maybe at that time we could have actually done something with it.

We don’t know whether the information is correct. We don’t know what in fact it could say vis-à-vis the actual real document. So I would submit to this Court that you should deal exclusively with Exhibit P-24 that speaks for itself and this document should be dismissed. […] Me PAUL DÉRY-GOLDBERG: Your Honour, I have no objection to my colleague using it as a tool to help you to understand , but he’ll still have to show you where these numbers correspond to what in Exhibit P-24. My objection is to this document being admitted as evidence. It is not evidence.

The rule of best evidence in and of itself prevents this document as being produced as evidence. It is a

summary of originals which you have. That’s the rule of best evidence, my colleague knows it very well. […] THE COURT: I’m going to tell you something. There’s one thing to make an objection.

You will not tell me how the proof will be made, because what you are telling me is, “Well, I’ll let you use this as a work paper, but you’ve got to go through each and every purchase order, because that’s where the proof is.” There’s a rule of proportionality that is going… It exists, you all know it exists, but that rule is going to be more and more imposed on court proceedings to avoid total wastes of time where the Court has to listen to a litany of ninety-two (92) invoices, purchase orders, so as to total up how much they represent, because the parties won’t agree on it. I’m going to say the following.

I think it would be probably best that the document be used as a work document as opposed to proof. It’s a work document. Me ALAIN DAIGLE: I’m satisfied with that, Your Lordship. THE COURT: You’re the one who says it’s to help the Court understand. Fine. Me ALAIN DAIGLE: Yes. THE COURT: It’s a work document. I don’t need it as proof. Me ALAIN DAIGLE: I’m not trying to prove anything different than P-24. THE COURT: But, I mean, the question will be simple. Did the witness review all of the purchase orders that are in P-24?

Are those the ones he added up to come to certain totals of amounts and what are those amounts? And I understand you saying, “Oh, yes, but it’s only being filed now.” But your entire argument is based on the fact that the information came from you in two thousand and ten (2010), then again in two thousand and thirteen (2013). Your client likely knows exactly what the purchase orders were from October twenty-nine (29), two thousand and seven (2007) to April thirty (30), two thousand and eight (2008). So it’s not well placed to plead that you’re being taken by surprise. So that is how we will do it.

P-25 is not entered into the court record as evidence, given the objection of the Defendant. It will be

only used as a working document which I understand from the witness is one that he prepared using information contained in P-24 that comes from the Defendant, that’s it. A - That is correct, Your Honour. Q - Thank you. Me ALAIN DAIGLE: That is perfect to me. [Emphasis added] [ 47 ] As a result, though the spreadsheet was not admitted as evidence, it was clear that it would be used by the Judge as a working document providing a

summary of the information contained in the documents filed as Exhibit P-24. Therefore, the Judge relied on the documents provided as Exhibit P-24, but since Global chose not to provide a compilation of the sales information contained in those documents, the Judge used the spreadsheet as a working document for that purpose [8] . [ 48 ] In essence, Global’s position is that it should be able to provide a haphazard series of financial documents, without any compilation or analysis of the information therein, and then prevent the opposing party from compiling and analysing that information.

This leaves the trial judge with the thankless task of compiling and analysing the information provided, the expectation being that the judge will not do so. There may have been a time when the judiciary reluctantly tolerated such courtroom antics, but that time has long since passed. [ 49 ] Global received the spreadsheet approximately 10 days before trial. Rather than pointing out errors in this document, it chose to challenge its admissibility. After the trial Judge ruled that the spreadsheet would be used as a working document, never did Global indicate any error in it.

Remarkably, even on appeal, after having years to analyse the document, Global has failed to point to any error. In this context, there is no merit whatsoever to Global’s submissions on this point. Third Question: Did the Judge err in awarding moral damages? [ 50 ] Global also finds fault with the trial Judge’s findings of fact respecting moral damages.

It submits that the Judge’s characterization of Tesson’s dismissal as unduly harsh, his finding that Malz humiliated Tesson by informing the staff of his departure before his dismissal, as well as the other findings supporting the award of moral damages, are all unsupported by the evidence. [ 51 ] The civil law of Quebec recognizes the availability of moral damages under the broader concept of abuse of right (“ abus de droit ”). This is specifically provided for under

article 2092 C.C.Q. , reproduced above at paragraph [33], in the case of an abusive termination of an employment contract. Though bad faith is an important factor in the analysis, it is not an absolute requirement since the unreasonable exercise of a right may itself lead to an award of damages, even in the absence of bad faith. The applicable principles of the civil law were set out as follows by Beaudoin J.A. in Standard Broadcasting Corp. c. Stewart : [9] [44] La théorie de l'abus de droit en matières contractuelles fait désormais

partie à la fois du droit jurisprudentiel […] et désormais de notre droit législatif (art. 6, 7 et 1375 C.c.. En matière de contrat de travail, l'article 2092 C.c. la reconnaît aussi explicitement). Elle ne sanctionne plus seulement comme l'écrit avec raison Madame la juge Claire L'Heureux-Dubé dans l'arrêt Houle , l'acte intentionnel ou de mauvaise foi, mais aussi « ....l'exercice déraisonnable du droit.... » (p. 164).

La jurisprudence récente a d'ailleurs fait écho à cet élargissement, en s'abstenant d'exiger désormais, dans le cas du contrat de travail, la mauvaise foi de l'employeur, et en se contentant d'un exercice du droit de congédier déraisonnable dans les circonstances particulières de chaque espèce […] [45] Toutefois, la lecture de l'ensemble de la jurisprudence révèle clairement que l'intersection de la notion de délai-congé raisonnable et de celle d'abus de droit n'est pas sans créer certaines difficultés, notamment le risque d'une double indemnisation […] […] [49] […] Il ne peut y avoir abus de droit que dans la mesure où l'employeur dépasse l'exercice normal de son droit de congédier en payant une indemnité raisonnable.

C'est-à-dire lorsque, pour employer l'expression de M. le juge Hannan de la Cour supérieure dans l'affaire Lavigne c. Sidbec-Dosco , [1985] C.S. 26 , il y a, de sa part, un « ....geste quasi-délictuel... ».

Congédier n'est pas une faute, congédier de façon humiliante, dégradante, blessante ou mortifiante, peut l'être! [50] Le droit de congédier normalement exercé entraîne toujours un certain préjudice pour l'employé, mais il faut prendre garde que la compensation pour abus du droit ne fasse pas double emploi avec l'indemnité de délai-congé, et ce, d'autant plus que dans l'évaluation de ce que constitue un délai-congé raisonnable, les tribunaux tiennent souvent compte de la façon dont la résiliation du contrat s'est opérée et du comportement de l'employeur. […] [53] Ce principe ne signifie pas pour autant qu'il n'y a jamais de place en matière de contrat de travail à durée indéterminée pour une compensation additionnelle fondée sur la théorie de l'abus de droit.

Cette indemnisation, cependant, ne peut compléter l'indemnité de délai-congé que si l'on retrouve mauvaise foi, négligence et que, de ce fait, l'employé souffre des dommages additionnels dus à une faute identifiée de l'employeur.

Ainsi, il y a abus de droit si l'employeur est manifestement de mauvaise foi […], place volontairement ou par négligence l'employé « ....dans une situation humiliante ou embarrassante.... » […], ou encore si, à la suite du congédiement, il salit la réputation de son employé par la façon dont il le congédie (par exemple, en y donnant une publicité négative et en nuisant ainsi à ses chances de retourner sur le marché du travail ou en fournissant des renseignements erronés ou diffamatoires à des tiers). [54] Il y a également abus de droit lorsque l'employeur laisse planer, à tort, des doutes sur l'intégrité de son employé […]; utilise la

force policière indûment lors du congédiement […]; l'injurie et le chasse brutalement du bureau qu'il occupait […]; porte contre lui de fausses accusations pour pouvoir mieux le congédier […]; l'empêche d'avoir accès à ses anciens lieux de travail […]; l'humilie lors de sa réintégration […]; le force à des démarches humiliantes pour obtenir ce qui lui est dû […]; retarde, par vengeance, la remise d'un relevé d'emploi […]; le traite avec mépris […]. [ 52 ] Here, the Judge found multiple injuries resulting both from bad faith and negligence which justified an award of moral damages: [243] In the present matter, the employer acted in a cavalier and unduly harsh manner, informing sales staff before the dismissal, dismissing abruptly without any explanation whatsoever, without providing an opportunity to correct perceived problems, and thereafter, contesting every request by Tesson whether to pick up his personal effects or to be paid what was reasonably due to him. [244] The issue of not disclosing the reasons for an employee's dismissal may not always be a factor in determining the issue of moral damages.

But in this case, Tesson was left to wonder at his own competence while questioning his own self-esteem. He had to seek out other employment at a senior management level without even the opportunity of explaining to potential employers what had transpired. [245 ] Such circumstances could conceivably lead others to wonder as to whether Tesson had been involved in illicit conduct.

In fact, Tesson testified that he decided not to disclose his months at Global on job applications since he could not explain why he was dismissed. [246] The Court considers these factors as favorable to Tesson's claim for moral damages and concludes that Global failed in its duty of good faith. [247] In view of Tesson's testimony as to the humiliation and lowered self-esteem that he encountered as a result, and given the foregoing, the Court sets the amount of moral damages suffered by Tesson at $5,000. [ 53 ] These are all findings of fact which may be challenged on appeal only by showing that the Judge made a palpable and overriding error.

Other than stating its overall disagreement with the Judge’s findings, Global points to no precise element in the record which would constitute a palpable and overriding error. As a result, Global’s appeal on this point must be dismissed.

Fourth Question: Did the Judge err in setting the conversion rate of US dollars? [ 54 ] The exchange rates used to convert the commissions owed to Tesson are identified in the employment agreement: “Exchange rates for quarterly commission payments will be based on Global Vision’s internal accounting exchange rate and will be paid in Canadian funds.” [ 55 ] The Judge found that the only proof emanating from Global with respect to exchange rates was in Exhibit D-11 which sets out conversion rates of 1.11 for Q1 2007, 1.05 for Q2 2007 and 0.96 for Q3 2007.

However, the Judge noted that no evidence was submitted as to the internal accounting exchange rate for Q4 2007.

He thus chose to approximate the applicable exchange rates by applying to all periods the 1.0981 rate at the date of the institution of the original proceedings. [10] [ 56 ] Tesson challenges this finding and argues that the exchange rate most favourable to him should be used, namely the exchange rate at the time of the trial: 1.4592. [ 57 ] The cases on which Tesson relies are not applicable to his circumstances since they concern conversion rates which were not stipulated by contract. [11] Here, the employment agreement specifically sets out the method by which the exchange rates for calculating the commissions are to be determined.

It was simply the absence of evidence as to the applicable contractual exchange rates for all concerned periods that required the Judge to approximate the overall contractual exchange rate as best he could. [ 58 ] In light of the contractual mechanism and the available evidence, I find no reviewable error in the Judge’s decision to set the overall exchange rate at 1.0981. Taking into account the evidence, this is a reasonable approximation of the contractual conversion rate.

Fifth Question: Did the Judge commit a calculation error with respect to the commissions owed? [ 59 ] The Judge awarded Tesson the commissions owed under the employment contract for sales made during the four quarters of 2007 up to January 31, 2008.

For the period of February 1, 2008 to April 29, 2008, the Judge found that the sales on which commissions should be calculated were $424,620.38: [175] The PO's for Q1 2008 as provided by Global and analysed by Tesson in working document P-25 amount to US $424,620.38. [176] Although that is a rather low figure compared to Q1 2007, the Court has no other available data for Q1 2008 purchase orders. Even the invoices for actual sales in Q1 2008 are quite low compared to the Q1 2007.

The Court is of the view that it has insufficient information with which to presume a higher level of sales. [177] Accordingly, the applicable "sales" figure for calculating bonus and commissions in Q1 2008 is the said amount of US $424,620.38. [ 60 ] The Judge did not, however, grant any commissions on Q1 2008 sales on the ground that they were so low that no commissions would have been paid to Tesson: [191] As for 2008, Q1 "sales" amounts are so low that even if one were to assume for argument sake that the annual sales target would have been the same as for 2007, no commissions would have been payable to Tesson.

Even more so, had the sales target been increased since 2008. [ 61 ] Tesson submits that the Judge made a calculation error in not awarding him at least the minimum commission of 0.5% to which he was entitled on all sales under his employment contract, namely US $2,123.10 ($424,620.38 X 0.5%) for Q1 2008.

[ 62 ] The employment contract does provide for a base commission of 0.5% on the first $4,472,700 in annual sales. As Tesson submits, a calculation error was indeed made with respect to the commissions owed to him for the Q1 2008 sales. That commission amounts to US $2,123.10. Once converted into Canadian currency at the exchange rate of 1.0981 set by the Judge, Global should pay an additional $2,331.38.

Sixth Question: Should the amount awarded for moral damages be increased? [ 63 ] Taking into account Tesson’s testimony as to the humiliation and damaged self-esteem he suffered as a result of Malz’s egregious behavior, the Judge awarded him $5,000 in moral damages. [ 64 ] In his incidental appeal, Tesson seeks to have this award increased to $25,000. His submissions are largely based on the difficulties he encountered throughout the proceedings in obtaining useful sales information from Global from which he could calculate the commissions owed to him.

He also alleges misrepresentations and manoeuvres by Malz with respect to the sales information. [ 65 ] A trial judge has latitude in determining the quantum of moral damages, provided that the amount awarded remains within rational limits in light of the evidence. Appellate intervention will be warranted only where there has been an error of law or a wholly erroneous assessment of the quantum. An assessment will be wholly erroneous if it is established that the trial judge clearly erred in exercising his discretion. [ 66 ] In my opinion, no errors of these natures have been made in this case.

CONCLUSION [ 67 ] For these reasons, I would dismiss Global’s appeal and grant Tesson’s incidental appeal in part, with legal costs in favour of Tesson. As a result, I would modify the order set out in the judgment of April 22, 2016, by replacing the amount of $109,357.28 with the amount of $111,688.66. ROBERT M. MAINVILLE, J.A.