2011 QCCQ 13556, 2011 QCCQ 13556

Cour du Québec Référence : Trottier c. Sonoco Montréal Inc. [2012] RL 26 DENIS TROTTIER demandeur c. SONOCO MONTRÉAL INC. et autres défenderesses C.Q.M. n° 500-32-117288-094 24 octobre 2011 Présent: Le juge David L. Cameron Résumé de la Revue légale LÉGISLATION — Code civil du Québec , L.Q. 1991, c. 64: 1619, 2097.

Travail — Contrat de travail — Congédiement — Délai de congé — Service continu — Changement à la structure juridique de l’employeur Le délai de congé raisonnable doit tenir compte du service continu acquis par l’employé au sein de l’entreprise, et ce, malgré les modifications apportées à la structure juridique de celle-ci. • Requête en dommages-intérêts pour rupture d’un contrat de travail, accueillie.

Jugement TEXTE INTÉGRAL [ 1 ] Denis Trottier, dismissed from his employment on April 3, 2008, sues Sonoco Montréal Inc. (“Sonoco”), Service de personnel Unique (“Unique”) and Flex-Mor Industries Ltd. (“Flex-Mor”) for an indemnity of $7,000, the limit of the Small Claims Division, as compensation for dismissal without notice. [ 2 ] Sonoco contests on the grounds that Denis Trottier has never been an employee of Sonoco and that he was an employee of Unique and/or Flex-Mor. [ 3 ] Unique takes the position that Mr Trottier is a former employee of Unique having left his employment voluntarily on February 1, 2008, in order to take up a new position with Flex-Mor. [ 4 ] Unique, therefore, denies any liability.

Flex-Mor concurs in this position alleging that it hired Denis Trottier, February 4, 2008, in the position of «représentant sur la route», whereas his previous employment with Unique had been in the position of senior logistic coordinator. [ 5 ] Flex-Mor asserts that when he was let go, Mr Trottier had less than three years of service and that his dismissal was justified because of unsatisfactory performance. [ 6 ] At the hearing, however, Flex-Mor admitted that it dismissed Mr Trottier for purely financial reasons.

ISSUES [ 7 ] Since no plausible case is stated for a dismissal with cause, there remain two issues for the Court to decide: 1. Who among the Defendants was (were) the employer(

s) of Mr Trottier? 2. What period of prior notice was Mr Trottier entitled to when he was dismissed on April 3, 2008? FACTS [ 8 ] Denis Trottier was recruited in January 2005 by Unique to work in the service of Sonoco, a corporation engaging in the business of manufacturing and selling sonotubes, which are cylindrical forms used for the pouring of concrete columns used in certain structures. [ 9 ] Sonoco had a fleet of transport trucks used to haul goods to and from points such as Montreal, Cap de la Madeleine and Trenton.

[ 10 ] Finished goods were shipped out and recyclable products were brought into Sonoco’s manufacturing facilities. [ 11 ] As the letter confirming his employment (P-3) states Denis Trottier would be «affecté chez Sonoco Canada Corporation, au 50, rue des Seigneurs à Montréal.» [ 12 ] Mr Trottier’s function was to handle the day-to-day logistics of the movement of the fleet of trucks according to the transport needs of Sonoco. [ 13 ] He reported to Lindsay Welsh, a person in authority at Sonoco and he had a number of drivers reporting to him, so that he could assign to them their day-to-day work. [ 14 ] Like Mr Trottier, these drivers were also on the payroll of Unique. [ 15 ] From Unique’s point of view, Mr Trottier was its employee managing on its behalf the drivers supplied for Sonoco’s fleet.

Any issue relating to pay or discipline was dealt with by Unique, and to that extent, Denis Trottier reported to Unique. [ 16 ] Periodic meetings were held between Unique and the employees with executives from Sonoco in attendance.

Unique conducted the meetings but the representatives of Sonoco would be invited to speak on questions concerning issues relevant to their employment from Sonoco’s point of view. [ 17 ] Sonoco was not present at the hearing and the Court did not hear from anyone who could be considered in authority at Sonoco. [ 18 ] Despite this, certain documentary evidence makes it clear that, from Sonoco’s point of view, Denis Trottier reported to Sonoco.

Emails sent by Lindsay Welsh and Bob Roy (P-9 and P-10) show that the transport that Denis Trottier was responsible for was managed by Sonoco itself, not by Unique. [ 19 ] Perhaps more significantly, a memo dated July 17, 2007 (P-12, en liasse), explaining the “Sonoco Merit Increase Process, 2006” and an email from Lindsay Welsh to Denis Trottier show that the bonus system was established by Sonoco and that Lindsay Welsh announced, on behalf of Sonoco, Denis Trottier’s performance increase calculated at 3% of his base salary. [ 20 ] The attached memo defines: “3 types of employees in Sonoco System”, “A” players, “B” players and “C” players. [ 21 ] While Unique was “in the loop” so to speak on questions of training, health and safety and discipline, as respects the drivers, it is clear that, in the case of Denis Trottier at least, Sonoco had a relationship of authority and control over him, at least in respect of the management of the material aspects of the enterprise, as opposed to driver-related issues. [ 22 ] A driver, Yves Beauregard, testified that there was a gradual transfer from Sonoco to Unique over the years. [ 23 ] He confirms that matters such as discipline were handled by Unique.

Mr Beauregard was employed by Sonoco since 1981. [ 24 ] Mr Beauregard started to see the involvement of Josie Granitto and Gordon McClain, both persons in authority at Unique, from 2005. [ 25 ] In 2007, a transaction took place whereby Sonoco transferred its fleet to Flex-Mor, a transport company that had been providing complementary transport services to Sonoco. [ 26 ] At one point (P-19 undated), D.

Lindsay Welsh, the Canadian Logistics Manager of Sonoco Canada Corporation announced that the transportation division, “Sonoco Transportation Services (STS) is pleased to announce a partnership agreement with the Flex- Mor Transport Group.” [ 27 ] The partnership, also referred to in another undated document (P-6) written jointly by Flex-Mor and Sonoco as a «Partenariat» (partnering) gave direction of the fleet to Flex-Mor: «Flex-Mor dirigera l’administration logistique de la flotte priver [sic] de Sonoco permettant ainsi une plus grandes [sic] souplesse.» [1] [ 28 ] According to Mr Trottier, discussions began in the early part of 2007.

In contemplation of Flex-Mor taking over the transport business, both Denis Trottier and Lindsay Welsh were in discussions with Flex-Mor and Sonoco to be involved as part of this transition. [ 29 ] In the case of Denis Trottier, it was planned that he would take on sales.

Flex-Mor had a surplus capacity that would be increased with the acquisition of the Sonoco fleet and all parties were willing to allow Mr Trottier to take on a new role in sales and promotion. [ 30 ] Sheldon Black, Flex-Mor’s president, testified that he believes that Denis Trottier began doing the groundwork for his new position several months before the effective date of his employment with Flex-Mor on February 4, 2008 (P-4). [ 31 ] This document, which confirms his fulltime position as “business development manager” is dated January 7, 2007.

However, both Sheldon Black and Unique’s representative, Josie Granitto, believe this is a typo: the document must have been prepared in January 2008 in anticipation of a starting date of February 4, 2008. [ 32 ] Josie Granitto points out that this is a new employment, different than that previously held with Unique. [ 33 ] The pay and other working conditions are different, as are the functions, which relate to sales to third-party clients as opposed to logistics. [ 34 ] Both Defendants stress the fact that Denis Trottier was pushing for a change of position while, from the point of view of Denis

Trottier, the change of position was simply an aspect of the change of the business from the time that Flex-Mor became involved in the “partnership”. [ 35 ] Whether Mr Trottier pushed for it or not, the three parties agreed that his functions would be changed.

The decision to put him on the Flex-Mor payroll was not necessarily initiated by Mr Trottier, but be accepted it. [ 36 ] It became effective on February 4, 2008. [ 37 ] The record of employment (P-1) of Flex-Mor shows that the first day work was February 4, 2008 and the last day paid was April 3, 2008. [ 38 ] Unique’s Relevé d’emploi (P-2) states the first day of work as January 26, 2005 and the last day paid February 1, 2008. [ 39 ] Although there is a gap, on paper, between February 1, and February 4, there is really no change: Denis Trottier left the offices of Sonoco in Montreal on a Friday and returned to them the following Monday. [ 40 ] At that particular point in time, he had not yet taken on the duties with regard to sales on a full-time basis; he was still assisting the person who had been hired to replace him, who had previously been a part-time employee. [ 41 ] Mr Black, observing from a distance, believes that approximately 20% of Denis Trottier’s time may have been spent in his previous job description involving logistics. [ 42 ] Mr Trottier estimates this involvement at 40%. [ 43 ] He also states that when the fleet was transferred from Sonoco to Flex-Mor on July 1 st , 2007, he was already soliciting customers and had made some sales for them in 2007.

ANALYSIS The employment prior to the transfer of the business [ 44 ] Until the involvement of Flex-Mor in the so-called partnership in 2007, Denis Trottier was, for some aspects of his employment, an employee of Sonoco and for others, an employee of Unique. [ 45 ] In so far as the management of the fleet, the efficiency of the operations and day-to-day logistics, he reported to Lindsay Welsh of Sonoco.

But, in respect of his management of the disciplinary aspects of the work of the drivers and any issues arising day-to-day relating to their pay and working conditions, he was reporting to Unique. [ 46 ] Although his pay was provided by Unique through contractual arrangements between Unique and Sonoco, the lines of authority and control were shared between these two entities both of whom can be considered as employers.

The employment during the transfer of the business [ 47 ] From the point in time when Flex-Mor becomes a partner of Sonoco or in a partnering arrangement, Flex-Mor also enters into an employment relationship Flex-Mor. [ 48 ] A memo of October 22, 2007 (P-21) shows that Mr Black is directing Denis Trottier’s work with respect to new clients in the US: “Here are some files for you to forward via email to potential clients and a base rate table to go by for new clients into the u.s.

I would agree you want to translate this into French and add yourself as a contact for flex-mor.” [ 49 ] The situation, however, is transitional: “I do not know what title to put down at this time and how to present yourself as flex-mor. I am happy for you to introduce yourself as Sonoco and an agent of flex-mor.

With Lindsay’s permission I would like to get you some business cards if we can agree on proper representation from Sonoco and Flex-Mor. your input please into business cards.” [ 50 ] Therefore, even before receiving the offer of a full-time position (P-4), presumably on January 7, 2007, Denis Trottier is actually in an employment relationship with Flex-Mor, because he reports to Mr Black with respect to his sales and marketing efforts. [ 51 ] Unique, to the extent that it had an employment relationship with Mr Trottier for the management of the drivers maintains his role in the period after the transfer of all the rolling stock to Flex-Mor. [ 52 ] From the point in time when Flex-Mor begins managing the fleet, Denis Trottier’s involvement in logistics is for Flex-Mor, but Josie Granitto confirms that Unique remains involved in all elements relating to personnel. [ 53 ] Therefore, when, after moving to the payroll of Flex-Mor Denis Trottier continues to assist another employee in issues related to the assignments of work to drivers, he is still in an employment relationship with Unique even though Flex-Mor has taken over the payroll. [ 54 ] Sonoco, however, seems to be out of the picture by this time, its role as fleet operator having been taken over by Flex-Mor.

[ 55 ] The Court concludes, therefore, that at the time of his dismissal, Denis Trottier was an employee of Flex-Mor and of Unique but not of Sonoco. – Reasonable notice [ 56 ] Flex-Mor argues that Denis Trottier was an employee for a period of less than three months and that he was not recruited but, rather, he solicited the employment. [ 57 ] The argument is made to justify the position that Denis Trottier would not be entitled to notice of dismissal, having worked for very short period with Flex-Mor and having not been enticed by Flex-Mor into giving up his old employment. [ 58 ] On the whole of the evidence, however, it would appear that the change of Denis Trottier’s job description was a natural evolution within the transition of the shipping business from Sonoco’s transport division, firstly to a sort of partnership composed of Sonoco and Flex-Mor and then entirely to Flex-Mor with the employee management aspects being retained by Unique. [ 59 ] In this light, although Denis Trottier may not have been enticed, he was invited to continue his employment with the business to be transferred and with the part of it that remained with Unique and to take on new functions and responsibilities for Flex-Mor, as early as mid-2007. [ 60 ] The Civil Code of Québec protects the rights of employees when a business is transferred: 2097.

A contract of employment is not terminated by alienation of the enterprise or any change in its legal structure by way of amalgamation or otherwise. The contract is binding on the successor of the employer. [61] The essence of this provision is that the employee retains his recourse against an existing employer, despite the transfer, and also gains a recourse against the entity to which the enterprise is transferred. [ 61 ] In that context, it would not be appropriate to treat Denis Trottier as a new employee.

His history with the businesses that he followed, along with factors such as his age, his salary and other working conditions, his degree of expertise and management responsibilities are relevant to assess a reasonable notice period. [ 62 ] The Court considers the following elements: Mr Trottier’s age – approximately 47 at the time of dismissal, his salary and benefits – approximately $65,000 per year plus a portion of benefits, the difficulty of the work – specialised logistics in a difficult and competitive transport business, the management component – responsibilities for the logistics of a fleet of trucks and a team of drivers, and his tenure of over three years. [ 63 ] The Court comes to the conclusion that a reasonable notice would have been at least several months, so that the $7,000 claimed is surely within that amount. [ 64 ] This amount is owed solidarity between Unique and Sonoco as original employers and Flex-Mor as the successor of Sonoco.

For these reasons, the Court: [ 65 ] Condemns the Defendants, solidarity, to pay the Plaintiff the sum of $7,000, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Québec , calculated from March 26, 2009; [ 66 ] Condemns the Defendants, solidarily, to pay to the Plaintiff, judicial costs in the amount of $157.