McGroarty v. Linita Design and Manufacturing Ltd., 2012 ONSC 1713

JudgeMatlow, Charbonneau and Nadeau, JJ.
CourtSuperior Court of Justice of Ontario (Canada)
Case DateOctober 18, 2011
JurisdictionOntario
Citations2012 ONSC 1713;(2012), 288 O.A.C. 389 (DC)

McGroarty v. Linita Design (2012), 288 O.A.C. 389 (DC)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. MR.019

Maggie McGroarty (plaintiff/respondent) v. Linita Design and Manufacturing Ltd. (defendant/ appellant)

(DC-10-59-00; 2012 ONSC 1713)

Indexed As: McGroarty v. Linita Design and Manufacturing Ltd.

Court of Ontario

Superior Court of Justice

Divisional Court

Matlow, Charbonneau and Nadeau, JJ.

January 20, 2012.

Summary:

The trial judge awarded the plaintiff damages for wrongful dismissal based on a reasonable notice period of 17 months. The employer appealed, submitting that the trial judge erred in his determination that a 17 month notice period was reasonable and in failing to deduct all of the income the plaintiff earned during that notice period in mitigation of her damages.

The Ontario Divisional Court dismissed the appeal.

Master and Servant - Topic 7716

Dismissal or discipline of employees - Damages for wrongful dismissal - Deductions - Earnings during notice period - The trial judge awarded the plaintiff damages for wrongful dismissal based on a reasonable notice period of 17 months - At the time of her dismissal, the plaintiff had a regular work week of 30 hours at $30 per hour for a weekly income of $900 - During the reasonable notice period, she obtained new employment at $20 per hour - However the requisite hours of work initially increased over five days, then eventually curtailed to four days a week, and then again went down to three days a week - The trial judge determined that it was not necessary to deduct all of the income the plaintiff earned during the notice period because the employment she found required her to work more and differing hours at substantially less remuneration per hour - Therefore, the trial judge determined that she was required to account only for mitigation income of up to a 30 hour work week at $20 per hour, or $600 per week, during the relevant time period and that the extra hours she was required to work weekly at the much lower hourly rate would not be deducted from her damages - The employer appealed, submitting that the trial judge erred in his determination that a 17 month notice period was reasonable and in failing to deduct all of the income the plaintiff earned during that notice period in mitigation of her damages - The Ontario Divisional Court dismissed the appeal.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - [See Master and Servant - Topic 7716 ].

Master and Servant - Topic 8064

Dismissal without cause - Damages - Mitigation - [See Master and Servant - Topic 7716 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 4].

UBS Securities Canada Inc. v. Sands Brothers Canada Ltd. (2009), 248 O.A.C. 146; 95 O.R.(3d) 93 (C.A.), refd to. [para. 5].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 6].

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. 7].

Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1; 42 O.R.(3d) 321 (C.A.), refd to. [para. 8].

Magnussen Furniture Inc. v. Mylex Ltd. (2008), 234 O.A.C. 329 (C.A.), refd to. [para. 12].

Michaels et al. v. Red Deer College, [1976] 2 S.C.R. 324; 5 N.R. 99, refd to. [para. 14].

Counsel:

David Cameletti, for the plaintiff/respondent;

Justin Heimpel, for the defendant/appellant.

This appeal was heard on October 18, 2011, at Brampton, Ontario, before Matlow, Charbonneau and Nadeau, JJ., of the Ontario Divisional Court. The following judgment of the Divisional Court was delivered by Nadeau, J., and was released on January 20, 2012.

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