2014 QCCQ 2617, 2014 QCCQ 2617

Gurpur c. Groupe SCI inc. 2014 QCCQ 2617 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-135114-124 DATE: April 1, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ ASHWIN GURPUR Plaintiff v. LE GROUPE SCI INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff makes a motion for damages for breach of contract of an employment contract with Defendant. [ 2 ] Defendant filed a contestation. However, despite being duly notified of the hearing date, Defendant did not appear at the hearing.

At the time of hearing, the Court clerk requested by loud speakers on four (4) occasions for a representative of Defendant to present itself and no representative appeared. [ 3 ] According to the Plaintiff’s proof, including testimony and the exhibits adduced by him in evidence at the trial, the following occurred. [ 4 ] Plaintiff is a computer engineer and had stable employment in Toronto.

He entered into negotiations with Defendant who was interested in hiring him for a position in Montreal. [ 5 ] One of the attractions of employment offered by Defendant was a Registered Retirement Savings Matching Plan (“RRSP Matching Plan”). Under the proposed contractual terms of the Defendant for the RRSP Matching Plan, the employer would match 50% of contributions by the Plaintiff to a RRSP Matching Plan administered by a major bank to be chosen by the Defendant. [ 6 ] The relevant paragraph of the employment contract (Exhibit P-1) is number 6 which reads as follows: “6.

RRSP Plan You are eligible to join the RRSP Plan after 3 months of service. Each pay period SCI will match 50% of your contribution up to a maximum of 4% of your base salary only, excluding all bonuses and/or commission payments; There is a vesting period of two (2) years and should you leave the employ of SCI within this period, SCI will be entitled to recover all pension contributions, including all earned interest on such contributions, advanced by SCI; The RRSP Plan will be administered by a major Canadian bank to be chosen by SCI.

You agree that you will hold SCI free and harmless from any and all financial losses in the RRSP Plan.” It is to be noted that, according to the evidence, this paragraph was drafted exclusively by Defendant. [ 7 ] During his employment, Plaintiff contributed to the RRSP Matching Plan and Defendant contributed the amount of $694 in accordance with the terms of the contract (Exhibit P-1). The evidence shows that Plaintiff started his employment with Defendant on September 6, 2011. [ 8 ] On February 8, 2012, Plaintiff was terminated by Defendant (Exhibit P-3).

As stated in Exhibit P-3, the cause of the termination was “lack of available work”. It is clear that the termination was without any cause attributable to Plaintiff and involuntary on his part. [ 9 ] Defendant withdrew the said amount of $694 from the RRSP Matching Plan (Exhibit P-4). Plaintiff argues that such withdrawal was wrongful and without right and constitutes a breach of the employment contract. [ 10 ] Although Defendant did not appear at the hearing, the Court took cognizance of the contestation filed by the Defendant. The

Defendant states that the terms mentioned at paragraph 6 ii) of Exhibit P-1, namely “should you leave the employ of SCI” allows the Defendant to withdraw the amount contributed even if “the departure of the employee” was involuntary on the part of the employee and without any grounds for termination. For his part, the Plaintiff argues that a reasonable

interpretation of those words and in fact his

interpretation of them were that the possibility of claiming back or recovery of the amount by the employer was restricted to the case of voluntary departure on the part of the employee or a cause in some way attributable to the employee. [ 11 ] Plaintiffs states that if the Defendant wanted to extend the right of recovery to involuntary or forced departure of the employee, the clause should have stated that or at least specify that leaving the employ “for any reason” would trigger that consequence. [ 12 ] The Court agrees with Plaintiff’s submission in that regard.

The formulation of paragraph 6 ii) indicates that that the loss of the employer’s contributions to the RRSP Matching Plan is contingent on some decision or factor attributable to the employee. The words used are “should you leave” which indicates that the employee has decided to leave or that the departure is somehow attributable to the employee. The words used are not a more neutral formulation, such as “should the employer terminate your employment”. The words used in the contract indicate that the recovery would not occur for a reason completely independent of the will or outside the control of the employee.

Furthermore, if there is a doubt as to the correct

interpretation, the Court refers to

Article 1432 of the Civil Code of Queb ec which states: “In case of doubt, a contract is interpreted in favour of the person who contracted the obligation and against the person who stipulated it. In all cases, it is interpreted in favour of the adhering party or the consumer.” [ 13 ] First, the contract is therefore interpreted against the person who stipulated the right to recovery. In the case at bar, that would be against the Defendant. Second, the clause in issue was drafted by the employer of Plaintiff.

Accordingly, clause 6 ii) should be interpreted in favour of the employee and the right of the employer to claim back the amount would only exist in the event that the termination of employment was for a reason attributable to the employee, including his voluntary departure. [ 14 ] The second ground of defence raised in the contestation of Defendant is the allegation that the RRSP Matching Plan is a Deferred Profit Sharing Plan (“DPSP Plan”).

Defendant alleges that it is a statutory requirement of a DPSP Plan that the amount deposited remain for a period of 24 months before it vests irrevocably with an employee beneficiary under applicable legislation, including the tax legislation. [ 15 ] In the opinion of the Court, it is not necessary in the present matter to review the content or applicability of the legal or tax requirements of a DPSP Plan. Plaintiff rightly argues that the document that controls the respective legal obligations between the parties is the employment contract (P-1).

That contract, and in particular paragraph 6, does not refer to a DPSP Plan but only to a RRSP Matching Plan. Plaintiff states that had reference been made to a DPSP, he would have verified with his accountant the applicable conditions before agreeing to the offer of employment. [ 16 ] It is true that the employment contract does not refer to a DPSP Plan but only a RRSP Matching Plan.

Therefore, the question is whether the removal by the employer of the matching amount of $694 is a contractual breach or violation of the terms of employment agreement. [ 17 ] For the reasons stated above, the Court is of the opinion that such removal did constitute a contractual breach and Plaintiff is entitled to such amount as damages or performance by equivalence under

article 1590 of the Civil Code of Quebec . [ 18 ] Plaintiff also made a motion to increase his claim as a result of trouble and inconvenience, frustration and loss of time caused by such breach of contract. The amendment sought was $900. The Court accepted the amendment but only to the extent of $100. According to the evidence, this head of damages and the prejudice suffered are amply supported by the proof. This amount will therefore also be granted as damages. WHEREFORE, FOR THESE REASONS, THE COURT: GRANTS Plaintiff’s motion; CONDEMNS Defendant to pay Plaintiff the amount of $794, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec from the date of the demand letter (Exhibit P-2), namely from May 26, 2012; WITH COSTS of court fees in favour of Plaintiff in the amount of $71.75. __________________________________ JEFFREY EDWARDS, J.C.Q. Date of hearing: March 24, 2014