Jardine v. Gloucester (City), (1999) 85 O.T.C. 11 (GD)

• Judge: Bell, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: February 11, 1999
• Jurisdiction: Ontario
• Citations: (1999), 85 O.T.C. 11 (GD)

Jardine v. Gloucester (1999), 85 O.T.C. 11 (GD)

MLB headnote and full text

Temp. Cite: [1999] O.T.C. TBEd. FE.152

Jock Jardine (plaintiff) v. The Corporation of the City of Gloucester (defendant)

(Court File No. 100721/96)

Indexed As: Jardine v. Gloucester (City)

Ontario Court of Justice

General Division

Bell, J.

February 11 and March 15, 1999.

Summary:

The Commissioner of Human Resources of a city went on extended sick leave, suffering from a major depressive disorder attributable to his working environment. He complained that his role and responsibilities had been eroded by the chief administrative officer and the mayor. After several months, he had his lawyer notify the chief administrative officer that his doctors felt he was ready to return to work part-time. Consultations began with respect to his return, but were not successfully concluded. The Commissioner abruptly declared that he had been wrongfully dismissed. He sued the city for wrongful dismissal and sought, in addition to a severance package in accordance with the city's employment policy, punitive damages and damages for breach of the duty of fairness and damages for mental distress. The city argued that, because he alleged managerial misconduct and would not withdraw his allegations, the city was entitled to treat his conduct as a resignation.

The Ontario Court (General Division) held that the Commissioner did not resign in the absence of clear and unequivocal evidence of resignation. The court also found that he attempted to negotiate with the city and was not merely attempting to obtain compensation and get out of a bad situation. Accordingly, his conduct did not amount to a fundamental breach of the employment contract. By precipitously taking the position that the failure to withdraw the complaints amounted to a resignation, the city wrongfully dismissed him. The court awarded damages in accordance with the severance package set out in the city's employment policy and did not set off any income earned or pension benefits received during the period. The court declined to award punitive damages, damages for mental distress or damages for breach of the duty of fair dealing.

Master and Servant - Topic 2204

Breach of contract - General - Fundamental breach - See paragraphs 147 to 188.

Master and Servant - Topic 7502

Dismissal of employees - General principles - What constitutes dismissal or discharge (incl. constructive dismissal) - See paragraphs 147 to 188.

Master and Servant - Topic 7704

Dismissal of employees - Damages for wrongful dismissal - Measure of damages for wrongful dismissal - See paragraphs 189 to 217.

Master and Servant - Topic 7707

Dismissal of employees - Damages for wrongful dismissal - Mental distress - See paragraph 209.

Master and Servant - Topic 7712

Dismissal of employees - Damages for wrongful dismissal - Punitive or vindictive damages - See paragraph 210

Master and Servant - Topic 8064

Dismissal without cause - Damages - Mitigation - See paragraphs 211 to 217.

Master and Servant - Topic 8153

Resignation - Without cause - What constitutes - See paragraphs 147 to 188.

Cases Noticed:

Skidd v. Canada Post Corp. (1993), 47 C.C.E.L. 169 (Ont. Gen. Div.), varied [1997] O.J. No. 712 (C.A.), refd to. [para. 153].

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 refd to. [para. 197].

Burgis v. Brampton (City) Public Library Board (1993), 68 O.A.C. 313; 110 D.L.R.(4th) 210 (Div. Ct.), refd to. [para. 208].

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. 209].

Emery v. Royal Oakes Mines Inc. (1995), 11 C.C.E.L.(2d) 149 (Ont. Gen. Div.), refd to. [para. 212]

Counsel:

Janice B. Payne, for the plaintiff;

K. Scott McLean, for the defendant.

This case was heard on October 19 - 22, November 2 - 6, 9 and 10, 1998, before Bell, J., of the Ontario Court (General Division), who released the following judgment on the merits on February 11, 1999, and supplementary reasons on costs on March 15, 1999.