Executive Summary: Key Legal and Evidentiary Issues

• The dispute centered on whether a revised commission policy altered the plaintiff’s contractual entitlement to commissions.

• The defendant argued that the plaintiff consented—expressly or implicitly—to a new commission structure through her conduct.

• The employment agreement required written consent for any modification, which was never obtained or proven.

• The court found no evidence that the plaintiff was aware the new commission terms would apply to her.

• Ambiguous contract language regarding “time of disbursement” was interpreted against the employer.

• The plaintiff was awarded over $61,000 in unpaid commissions for deals she was the effective cause of before resigning.

Background and terms of employment agreement

Dianne McCoubrey was hired as Vice President of Sales by Salesfloor Inc. in November 2020. Prior to accepting the position, she negotiated a detailed employment agreement that guaranteed her commission structure would not change for three years unless she provided written consent. The final signed agreement included this protection and attached a commission policy, effective January 1, 2020, as Schedule A. The agreement also included a complete agreement clause requiring all modifications to be in writing.

During her employment, Salesfloor introduced a revised 2021 Commission Policy, which it applied to other employees. The company claimed McCoubrey implicitly agreed to the new policy by accepting commission payments that were calculated under it. However, there was no written amendment or consent, and Salesfloor never requested that she agree to the change. McCoubrey maintained that she believed the 2021 policy applied only to her sales team, not to her own compensation.

Key sales and commission disputes

Two key deals were central to the dispute: the renewal of the Chico’s contract and the execution of a contract with GNC, both of which were secured shortly before McCoubrey’s resignation in September 2022. Salesfloor argued that she was not entitled to commissions on these deals because she had resigned before payments were due and because the 2021 policy limited payments after departure. McCoubrey argued that under the original contract, she was still entitled to commissions if she remained employed at the time of invoicing—conditions she satisfied in both cases.

The evidence showed that McCoubrey was the effective cause of both deals. The invoices for Chico’s and GNC were issued on August 1 and September 1, 2022, respectively. McCoubrey’s last day of work was September 2, 2022. The court noted that her resignation had been voluntary and not the result of employer pressure, but also that she had offered to remain employed through October.

Court’s interpretation of the employment contract

The court emphasized that the employment agreement was clear: no changes to the commission structure were binding unless made in writing and signed by both parties. The evidence showed there was no such written agreement, and the agreed facts confirmed Salesfloor never requested her written consent. The court found that McCoubrey had not waived her rights and had no actual knowledge that the revised policy would apply to her.

The court also had to interpret the phrase “at the time of disbursement,” which determined eligibility for commission payments under the 2020 agreement. Because this phrase was ambiguous and not defined, the court applied the doctrine of contra proferentem, interpreting it against the employer. It concluded that McCoubrey was eligible for commissions since she was employed when the invoices were issued.

Final decision and award

The court ruled in McCoubrey’s favor, finding that her employment contract remained governed by the 2020 Commission Policy. Since she was still employed when the Chico’s and GNC invoices were issued, she was entitled to commissions totaling $61,228.28 USD. The court ordered payment, along with pre-judgment interest under the Courts of Justice Act. Costs were left open for the parties to resolve or submit further written submissions.