Antonacci v. Great Atlantic & Pacific Co. of Canada Ltd., (1998) 53 O.T.C. 291 (GD)

• Jurisdiction: Ontario
• Court: Ontario Court of Justice General Division (Canada)
• Judge: Swinton, J.
• Citation: (1998), 53 O.T.C. 291 (GD)
• Date: 04 March 1998
• Subject Matter: DAMAGE AWARDS,DAMAGES,EMPLOYMENT LAW

Antonacci v. Great Atlantic (1998), 53 O.T.C. 291 (GD)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. MR.002

Vito Antonacci (plaintiff) v. The Great Atlantic & Pacific Company of Canada Limited (defendant)

(File No. 95-CQ-63767)

Indexed As: Antonacci v. Great Atlantic & Pacific Co. of Canada Ltd.

Ontario Court of Justice

General Division

Swinton, J.

March 4, 1998.

Summary:

Antonacci began working for A & P in 1961. In 1994, he was transferred to manage a store with operational problems. Shortly thereafter, he seriously injured his back while at work. He received workers' compensation benefits before returning on reduced hours and modified duties. An acting manager was brought in. A & P complained to Antonacci of poor inventory results and failure to follow a company programme. A & P subsequently dismissed Antonacci, citing performance issues. Since Antonacci was dismissed for cause, he was not entitled to re-employment rights under the Workers' Compensation Act. He was eventually found to be permanently but not fully disabled and received workers' compensation benefits, paid retroactively. Antonacci sued for damages for wrongful dismissal, including aggravated and punitive damages. At issue was whether (1) there was cause for dismissal; (2) the employment contract was frustrated and (3) Antonacci was entitled to damages.

The Ontario Court (General Division) held that there was no cause for dismissal. To seize on performance issues arising in a store new to Antonacci, with past operational problems, and to do so when he was seriously injured and recuperating, demonstrated real unfairness and was insufficient cause for dismissal. The employment contract was not frustrated due to Antonacci's medical condition where the contract contemplated a lengthy period of absence by an injured employee and provided for sick leave. Antonacci was entitled to the maximum period of notice, namely 24 months, where A & P made serious but unfounded allegations against him. The workers' compensation benefits were deducted from the amounts payable without taking into account their ultimate treatment under income tax legislation. Antonacci was entitled to $15,000 aggravated damages to compensate him for the loss of his potential right to re-employment. Punitive damages were not warranted.

Damage Awards - Topic 1454

Contracts - Employment contracts - Wrongful dismissal - See paragraphs 42 to 61.

Damage Awards - Topic 2411

Aggravated damages - Wrongful dismissal - See paragraphs 16 to 19 and 52 to 60.

Damages - Topic 911

Aggravation - In contract - Aggravated damages - Wrongful dismissal - See paragraphs 16 to 19 and 52 to 60.

Damages - Topic 1326

Exemplary or punitive damages - Wrongful dismissal - See paragraphs 16 to 19 and 52 to 60.

Master and Servant - Topic 2203

Breach of contract - General - Frustration - See paragraphs 36 to 41.

Master and Servant - Topic 7704

Dismissal of employees - Damages for wrongful dismissal - Measure of damages for wrongful dismissal - See paragraphs 47 to 61.

Master and Servant - Topic 7706

Dismissal of employees - Damages for wrongful dismissal - Deduction for workers' compensation benefits received by employee - See paragraphs 47 to 50.

Master and Servant - Topic 7709

Dismissal of employees - Damages for wrongful dismissal - Deduction for income tax - See paragraphs 47 to 50.

Master and Servant - Topic 7904

Dismissal without cause - General - Circumstances when dismissal not justified - See paragraphs 20 to 35.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - See paragraphs 42 to 46.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dismissal - Reasonable notice - Considerations affecting - See paragraphs 42 to 46.

Master and Servant - Topic 8007

Dismissal without cause - Notice of dismissal - Reasonable notice - Long service employees dismissed - See paragraphs 42 to 46.

Cases Noticed:

Wallace v. United Grain Growers Ltd. (1997), 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1; 152 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 16].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321; 58 D.L.R.(4th) 193; [1989] 4 W.W.R. 218; 36 B.C.L.R.(2d) 273; 90 C.L.L.C. 14,035; 25 C.C.E.L. 81, refd to. [para. 16].

Fonceca v. McDonnell Douglas Canada Ltd. (1983), 1 C.C.E.L. 51 (Ont. H.C.), dist. [para. 28].

Ditchburn v. Landis & Gyr Powers Ltd. (1995), 16 C.C.E.L.(2d) 1 (Gen. Div.), affd. (1997), 101 O.A.C. 72; 34 O.R.(3d) 578 (C.A.), refd to. [para. 29].

Marshall v. Harland & Wolff Ltd., [1972] 2 All E.R. 715, refd to. [para. 37].

Yeager v. Hastings (R.J.) Agencies Ltd. (1984), 5 C.C.E.L. 266 (B.C.S.C.), appld. [para. 37].

White v. Woolworth (F.W.) Co. (1996), 139 Nfld. & P.E.I.R. 324; 433 A.P.R. 324; 22 C.C.E.L.(2d) 110 (Nfld. C.A.), appld. [para. 37].

Bishop v. Carleton Co-operative Ltd. (1996), 176 N.B.R.(2d) 206; 447 A.P.R. 206; 21 C.C.E.L.(2d) 1 (C.A.), refd to. [para. 37].

MacLellan v. H.B. Contracting Co. (1990), 32 C.C.E.L. 103 (B.C.S.C.), dist. [para. 38].

Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.), refd to. [para. 42].

Kwasnycia v. Goldcorp Inc. (1995), 10 C.C.E.L.(2d) 65 (Ont. Gen. Div.), refd to. [para. 43].

Dowsley Estate v. Viceroy Fluid Power International Inc. (1997), 100 O.A.C. 322 (C.A.), refd to. [para. 47].

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1; 113 D.L.R.(4th) 1, refd to. [para. 49].

Cunningham v. Wheeler - see Cooper v. Miller (No. 1).

Ribeiro v. Canadian Imperial Bank of Commerce (1992), 13 O.R.(3d) 278 (C.A.), refd to. [para. 53].

Francis v. Canadian Imperial Bank of Commerce (1994), 75 O.A.C. 216; 7 C.C.E.L.(2d) 1 (C.A.), refd to. [para. 53].

Dixon v. British Columbia Transport (1995), 13 C.C.E.L.(2d) 272 (B.C.S.C.), refd to. [para. 53].

Hughes v. Gemini Food Corp. et al. (1997), 97 O.A.C. 147; 27 C.C.E.L.(2d) 204 (C.A.), refd to. [para. 54].

Rasanen v. Rosemount Industries Ltd. (1994), 68 O.A.C. 284; 112 D.L.R.(4th) 683 (C.A.), refd to. [para. 58].

Counsel:

Maurice W. Pilon, for the plaintiff;

Howard Levitt, for the defendant.

This action was heard on January 26 to 30, and February 2 and 4, 1998, before Swinton, J., of the Ontario Court (General Division) who released the following decision on March 4, 1998.