Drouillard v. Cogeco Cable Inc.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: O'Connor, A.C.J.O., Feldman and Rouleau, JJ.A.
• Neutral Citation: 2007 ONCA 322
• Citation: (2007), 223 O.A.C. 350 (CA),2007 ONCA 322,86 OR (3d) 431,282 DLR (4th) 644,48 CCLT (3d) 119,[2007] OJ No 1664 (QL),223 OAC 350,57 CCEL (3d) 14,[2007] O.J. No 1664 (QL),223 O.A.C. 350,282 D.L.R. (4th) 644,(2007), 223 OAC 350 (CA),86 O.R. (3d) 431
• Date: 26 January 2007

Drouillard v. Cogeco Cable Inc. (2007), 223 O.A.C. 350 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. MY.003

Kevin Drouillard (respondent/appellant by cross-appeal) v. Cogeco Cable Inc. (appellant/respondent by cross-appeal)

(C44042; 2007 ONCA 322)

Indexed As: Drouillard v. Cogeco Cable Inc. et al.

Ontario Court of Appeal

O'Connor, A.C.J.O., Feldman and Rouleau, JJ.A.

May 1, 2007.

Summary:

The plaintiff was hired by Mastec, a cable industry contractor, to work on a project for Cogeco. Cogeco advised Mastec that it did not want the plaintiff working on any of Cogeco's equipment. Mastec terminated the plaintiff. The plaintiff sued Mastec for wrongful dismissal and breach of contract and Cogeco for unlawful interference with his economic interests and inducing breach of contract. The action against Mastec was settled before trial.

The Ontario Superior Court, in a decision reported at [2005] O.T.C. 657, found that Cogeco committed the tort of unlawful interference with the plaintiff's economic relations and ordered Cogeco to pay $200,000 in damages together with pre-judgment interest and costs. Cogeco appealed respecting liability, the quantum of damages, and the quantum of costs. The plaintiff cross-appealed, seeking punitive damages and damages for future lost income.

The Ontario Court of Appeal dismissed Cogeco's appeal as to liability, but varied the quantum of damages. The court dismissed the cross-appeal.

Damage Awards - Topic 706

Torts/Quebec responsibility - Injury to economic or business relations - Inducing breach of contract - The plaintiff was hired by Mastec, a cable industry contractor, to work on a project for Cogeco - Cogeco advised Mastec that it did not want the plaintiff working on any of Cogeco's equipment - Mastec terminated the plaintiff - The plaintiff sued Mastec for wrongful dismissal and breach of contract and Cogeco for, inter alia, unlawful interference with his economic interests - The action against Mastec was settled - The Ontario Court of Appeal held that Cogeco was liable for inducing the breach of the plaintiff's employment contract - The plaintiff suffered a loss of net income of $45,079 - The trial judge's additional award of $62,465 for "at large" damages was not too high - It was open to the trial judge to conclude that the plaintiff had lost a promising career by Cogeco's actions, that he was forced to retrain and that it was unreasonable to require him to move - Although there was an adequate basis for an award of punitive damages, he exercised his discretion to not award punitive damages in the circumstances and preferred instead to award "at large" damages - This exercise of discretion was reasonable on the facts of this case - See paragraphs 42 to 70.

Damage Awards - Topic 2030.2

Exemplary or punitive damages - Inducing breach of contract - [See Damage Awards - Topic 706 ].

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - The plaintiff was hired by Mastec, a cable industry contractor, to work on a project for Cogeco - Cogeco advised Mastec that it did not want the plaintiff working on any of Cogeco's equipment - Mastec terminated the plaintiff - The plaintiff sued Mastec for wrongful dismissal and breach of contract and Cogeco for, inter alia, unlawful interference with his economic interests - The action against Mastec was settled - The Ontario Court of Appeal held that the trial judge erred in finding that the tort of unlawful interference with the plaintiff's economic relations had been made out - Cogeco's interference was not by illegal or unlawful means - The trial judge erred in concluding that the breach by Cogeco of an alleged unwritten internal policy respecting preventing contractors from using certain individuals amounted to an unlawful act - See paragraphs 18 to 25.

Torts - Topic 5208

Interference with economic relations - Contracts - Inducing or procuring breach of contract - The plaintiff was hired by Mastec, a cable industry contractor, to work on a project for Cogeco - Cogeco advised Mastec that it did not want the plaintiff working on any of Cogeco's equipment - Mastec terminated the plaintiff - The plaintiff sued Mastec for wrongful dismissal and breach of contract and Cogeco for, inter alia, unlawful interference with his economic interests - The action against Mastec was settled - The Ontario Court of Appeal held that Cogeco was liable for inducing the breach of the plaintiff's employment contract - The trial judge was satisfied that Cogeco was not concerned about the terms of the plaintiff's termination and that Cogeco acted intending to cause a breach of the employment contract, or with substantial certainty that its conduct would result in a breach - Therefore, the requirement of intent was met - The trial judge found that Cogeco had meddled with and violated the employment contract, had acted contrary to its corporate policy, and that its conduct was malicious and punitive - In the circumstances, the defence of justification was not open to Cogeco - See paragraphs 26 to 41.

Torts - Topic 5215

Interference with economic relations - Contracts - Defences - Justification - [See Torts - Topic 5208 ].

Cases Noticed:

Reach M.D. Inc. v. Pharmaceutical Manufacturers Association of Canada et al. (2003), 172 O.A.C. 202; 65 O.R.(3d) 30 (C.A.), refd to. [para. 19].

Torquay Hotel Co. v. Cousins, [1969] 1 All E.R. 522 (C.A.), refd to. [para. 19].

Posluns v. Toronto Stock Exchange and Gardiner, [1964] 2 O.R. 547 (H.C.), affd. [1966] 1 O.R. 285 (C.A.), affd. [1968] S.C.R. 330, refd to. [para. 26].

Waxman et al. v. Waxman et al. (2004), 186 O.A.C. 201 (C.A.), leave to appeal refused (2005), 339 N.R. 200; 207 O.A.C. 400 (S.C.C.), refd to. [para. 26].

Thermo King Corp. v. Provincial Bank of Canada (1981), 130 D.L.R.(3d) 256 (Ont. C.A.), refd to. [para. 29].

Dirassar and James v. Kelly, Douglas & Co. (1966), 59 D.L.R.(2d) 452 (B.C.C.A.), refd to. [para. 29].

Emerald Construction Co. v. Lowthian, [1966] 1 W.L.R. 691 (C.A.), refd to. [para. 29].

Fasson Canada Inc. v. Mediacoat Inc., [1993] O.J. No. 2228 (Gen. Div.), affd. [1996] O.J. No. 3532 (C.A.), refd to. [para. 33].

Hutchison (D.E. and J.C.) Contracting Co. v. Windigo Community Development Corp. et al. (1998), 80 O.T.C. 16 (Gen. Div.), refd to. [para. 34, footnote 2].

Dimbleby & Sons Ltd. v. National Union of Journalists, [1984] 1 W.L.R. 67 (C.A.), refd to. [para. 34, footnote 2].

Cutsforth v. Mansfield Inns, [1986] 1 W.L.R. 558 (Q.B.D.), refd to. [para. 34, footnote 2].

Broome v. Cassell & Co., [1972] A.C. 1027 (H.L.), refd to. [para. 42].

Sengmueller v. Sengmueller (1994), 69 O.A.C. 312; 17 O.R.(3d) 208 (C.A.), refd to. [para. 64].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (9th Ed. 1998), pp. 761, 762 [para. 30]; 765 [para. 43].

Klar, Lewis N., Tort Law (3rd Ed. 2003), pp. 612 [para. 29]; 618 to 620 [para. 39].

Osborne, Philip H., The Law of Torts (2nd Ed. 2003), pp. 300, 301, 302 [para. 39].

Counsel:

Adrian Miedema, for the appellant;

Raymond Colautti and Anita Landry, for the respondent.

This appeal and cross-appeal were heard on January 26, 2007, by O'Connor, A.C.J.O., Feldman and Rouleau, JJ.A., of the Ontario Court of Appeal. Rouleau, J.A., delivered the following judgment for the court which was released on May 1, 2007.