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Employment Law - Contract of employment - Express terms - Interpretation

Thursday, February 16, 2017 @ 7:00 PM  


Appeal by the plaintiff, Hampton Securities, from partial summary judgment granted in favour of the defendant, Tassone. The plaintiff employed the defendant to trade securities using its capital. The plaintiff maintained a trading inventory account that recorded gains and losses resulting from the defendant’s trades. The defendant was remunerated solely when his trades generated profits overcoming any accumulated losses. At the time of the cessation of the defendant’s employment, his inventory account stood in a loss position of approximately $700,000. The plaintiff took the position the defendant was personally responsible for the losses. The plaintiff applied $100,000 of the defendant’s personal reserve account against the loss and liquidated his shares in the company, retaining the proceeds. The plaintiff sued to recover the remaining net loss, challenging the defendant’s transfer of the matrimonial home to his wife as a fraudulent conveyance. The defendant denied personal liability for the loss and counterclaimed for wrongful dismissal and recovery of his personal funds. A motion judge granted partial summary judgment that dismissed the plaintiff’s claim on the basis the defendant was not personally responsible for the trading losses, save to the extent of the amounts in his personal reserve account. The plaintiff appealed.

HELD: Appeal dismissed. The motion judge properly treated the defendant’s liability for the trading losses upon the end of the employment relationship as a question of fact that turned on the terms of the employment contract. The judge did not err in the factual finding that, based on the employment contract’s terms, the defendant was not required to indemnify the plaintiff for the losses beyond the funds in his personal reserve account. The judge did not err in declining to find an implied contractual term imposing liability on the defendant. The motion judge’s interpretation of the employment contract accorded with the jurisprudence and was entitled to deference. There was no independent evidence of any industry practice holding traders responsible for their losses in the manner sought by the plaintiff.