Antonacci v. Great Atlantic & Pacific Co. of Canada Ltd., (2000) 128 O.A.C. 236 (CA)

• Judge: Doherty, Charron and Borins, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 22, 1999
• Jurisdiction: Ontario
• Citations: (2000), 128 O.A.C. 236 (CA)

Antonacci v. Great Atlantic (2000), 128 O.A.C. 236 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. JA.025

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

(C29388)

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

Ontario Court of Appeal

Doherty, Charron and Borins, JJ.A.

January 13 and February 10, 2000.

Summary:

Antonacci was dismissed from his employment with the Great Atlantic & Pacific Company (A & P) after 33 years of service. He sued for wrongful dismissal, seeking general, aggravated and punitive damages.

The Ontario Court (General Division), in a decision reported at 53 O.T.C. 291, allowed the action, but dismissed the claim for punitive damages. A & P appealed. Antonacci cross-appealed.

The Ontario Court of Appeal allowed A & P's appeal to the extent of setting aside the aggravated damages award. The court dismissed Antonacci's cross-appeal.

Damage Awards - Topic 2411

Aggravated damages - Wrongful dismissal - Antonacci injured himself while working for A & P - He received workers' compensation benefits, but eventually returned to work - A & P dismissed Antonacci, citing performance issues - Since Antonacci was dismissed for cause, he was disentitled to re-employment rights under the Workers' Compensation Act - He asked that his file be reviewed - A & P wrote to the Workers' Compensation Board, stating that termination was based on performance issues - Antonacci sued for wrongful dismissal - The trial judge allowed the action, awarding, inter alia, $15,000 aggravated damages where A & P had misled the Board and deprived Antonacci of his right to re-employment - A & P disputed the award on appeal - The Ontario Court of Appeal held that the award could not stand where (1) the conduct fell outside the scope of the pleadings as particularized and (2) there was no foundation for the award on the evidence - See paragraphs 22 to 37.

Damages - Topic 911

Aggravation - In contract - Aggravated damages - Wrongful dismissal - [See Damage Awards - Topic 2411 ].

Master and Servant - Topic 2203

Breach of contract - General - Frustration -Antonacci worked for A & P as a store manager - He seriously injured his back while at work - He was found permanently but not fully disabled and received workers' compensation benefits - He eventually returned to work on reduced hours and modified duties - A & P subsequently dismissed Antonacci, citing performance issues - Antonacci sued for wrongful dismissal - A & P asserted that no damages were owing because the employment contract had been frustrated due to Antonacci's medical condition - The trial judge held that the employment contract was not frustrated where Antonacci's contract contemplated a lengthy period of absence by an injured employee and provided for sick leave - Furthermore, A & P never claimed justification for termination on the basis of frustration - The Ontario Court of Appeal declined to interfere with the trial judge's conclusion - See paragraphs 9 to 13.

Master and Servant - Topic 7706

Dismissal of employees - Damages for wrongful dismissal - Deduction for workers' compensation benefits received by employee - Antonacci worked for A & P as a store manager - He seriously injured his back while at work - He was found permanently but not fully disabled and received workers' compensation benefits - He eventually returned to work on reduced hours and modified duties - A & P subsequently dismissed Antonacci - Antonacci sued for wrongful dismissal - The trial judge awarded damages and deducted the workers' compensation benefits received during the notice period - On appeal, Antonacci submitted that the benefits were not deductible because s. 58 of the Employment Standards Act provided that severance pay was not subject to any reduction - Accordingly, it would be inconsistent to deduct workers' compensation benefits received during that same period -The Ontario Court of Appeal rejected the submission given that severance payments were themselves deductible from any damage award for wrongful dismissal - See paragraphs 14 to 17.

Master and Servant - Topic 7706

Dismissal of employees - Damages for wrongful dismissal - Deduction for workers' compensation benefits received by employee - Antonacci worked for A & P as a store manager - He seriously injured his back while at work - He was found permanently but not fully disabled and received workers' compensation benefits - He eventually returned to work on reduced hours and modified duties - A & P subsequently dismissed Antonacci - Antonacci sued for wrongful dismissal - The trial judge awarded damages and deducted the workers' compensation benefits without taking into account their ultimate treatment under income tax legislation - This matter rested on a tax policy and was best left to the legislature - On appeal, A & P asserted that the amount deducted for the compensation benefits should have been grossed up to account for the fact that they were non-taxable - The Ontario Court of Appeal agreed with the trial judge's conclusion - See paragraphs 18 to 21.

Master and Servant - Topic 7709

Dismissal of employees - Damages for wrongful dismissal - Deduction for income tax - [See second Master and Servant - Topic 7706 ].

Master and Servant - Topic 7713

Dismissal of employees - Damages for wrongful dismissal - Aggravated damages -[See Damage Awards - Topic 2411 ].

Practice - Topic 1903

Pleadings - Particulars - General - Failure to provide - Effect of - [See Damage Awards - Topic 2411 ].

Cases Noticed:

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1; 152 D.L.R.(4th) 1, refd to. [para. 5].

Dowsley Estate v. Viceroy Fluid Power International Inc. (1997), 100 O.A.C. 322; 34 O.R.(3d) 57 (C.A.), refd to. [para. 14].

Stevens v. Globe and Mail et al. (1996), 90 O.A.C. 361; 28 O.R.(3d) 481 (C.A.), refd to. [para. 17].

Ontario (Minister of Highways) v. Jennings (1966), 57 D.L.R.(2d) 644 (S.C.C.), refd to. [para. 20].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321; 58 D.L.R.(4th) 193, refd to. [para. 22].

International Nickel Co. v. Travellers Indemnity Co., [1962] O.W.N. 109 (C.A.), refd to. [para. 34].

Mexican Northern Power Co. v. Pearson (1913), 25 O.W.R. 422 (H.C.), refd to. [para. 34].

Tse-Ching v. Wesbild Holdings Ltd. (1994), 98 B.C.L.R.(2d) 92 (S.C.), refd to. [para. 35].

Counsel:

Howard Levitt, for the appellant;

Maurice W. Pilon, for the respondent.

This appeal and cross-appeal were heard on October 22, 1999, by Doherty, Charron and Borins, JJ.A., of the Ontario Court of Appeal. Charron, J.A., delivered the following decision for the court on January 13, 2000. The addendum following the judgment was released by the court on February 10, 2000.