McNevan v. AmeriCredit Corp. et al., (2008) 245 O.A.C. 28 (CA)

• Judge: Blair, Juriansz and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 24, 2008
• Jurisdiction: Ontario
• Citations: (2008), 245 O.A.C. 28 (CA);2008 ONCA 846

McNevan v. AmeriCredit Corp. (2008), 245 O.A.C. 28 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. DE.058

Douglas McNevan (plaintiff/respondent) v. AmeriCredit Corp. & AmeriCredit Financial Services of Canada Ltd. (defendants/appellants)

(C46530; 2008 ONCA 846)

Indexed As: McNevan v. AmeriCredit Corp. et al.

Ontario Court of Appeal

Blair, Juriansz and Epstein, JJ.A.

December 15, 2008.

Summary:

The plaintiff was fired after 13 months on the job. He sued his former employer.

The Ontario Superior Court allowed the action and awarded the following damages: (1) 12 months' pay in lieu of notice, including two three-month periods for Wallace damages, the whole totalling $63,296.13; (2) $2,651.64 for reimbursement of mitigation expenses; and (3) $12,984.26 for losses arising from the employee share purchase plan. The employer appealed.

The Ontario Court of Appeal, Juriansz, J.A., dissenting on the question of Wallace damages, allowed the appeal in part. The court quashed the Wallace damage award. That left damages of six months' pay in lieu of notice. The damages for reimbursement of mitigation expenses were reduced, by consent, to $1,000. The damages for losses arising from the employee share purchase plan were $5,868.99.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - The plaintiff was assistant vice-president, collections, for an independent auto finance company in Peterborough - The departments under his supervision frequently met their targets - He was well liked by his colleagues - The plaintiff was fired after 13 months on the job - He was 44 - The trial judge awarded him damages of six months' pay in lieu of notice - There was a dearth of similar employment available - The plaintiff was a manager with a major degree of responsibility who enjoyed emotional satisfaction from his work - The Ontario Court of Appeal upheld the award, adding that the plaintiff was looking for work in a smaller urban area where the opportunities to match his skills and experience to an available position were scarce - See paragraphs 17 to 19, 45 to 47, 81 to 91.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dismissal - Reasonable notice - Considerations affecting (incl. bad faith) - The Ontario Court of Appeal held that the failure to warn about dissatisfaction in job performance was not a relevant consideration in determining the appropriate notice period in the context of a without cause dismissal - See paragraphs 37 to 44.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dismissal - Reasonable notice - Considerations affecting (incl. bad faith) - The plaintiff was assistant vice-president, collections, for an independent auto finance company in Peterborough - He was fired after 13 months on the job - He was 44 - The trial judge awarded him damages of six months' pay in lieu of notice - In addition, the trial judge awarded two three-month periods for Wallace damages - The first period was for the failure to warn the plaintiff of his perceived management failings, combined with the abruptness of his dismissal - The second period was for the employer's post-termination conduct which included improper handling of the return of the plaintiff's personal effects, an error in the plaintiff's vacation pay and lack of care and attention in the handling of the plaintiff's T4 slip, his record of employment, his bonus, etc. - The trial judge found that this "inefficient" level of performance by a large company with a well-staffed human resources department increased the level of indignity that the plaintiff experienced - The Ontario Court of Appeal quashed the Wallace damages award - The record did not support the conclusion that the employer acted in bad faith - In addition, alleged bad faith conduct, along with its impact upon the dismissed employee, should be considered as a whole and not in parcels - Finally, absent a finding of bad faith, there could be no separate damage award under Keays v. Honda (S.C.C.) - See paragraphs 20 to 27, 48 to 63.

Master and Servant - Topic 8064

Dismissal without cause - Damages - Mitigation - The plaintiff was assistant vice-president, collections, for an independent auto finance company in Peterborough - On July 4, 2002, he was fired after 13 months on the job - He was 44 - It was upsetting - The plaintiff felt overwhelmed, dejected and depressed - The doctor prescribed sleeping medication - In September or October of 2002, the plaintiff regained sufficient strength to "tie up loose ends" with his former employer and begin seeking new employment - He participated in courses on résumé writing, attended seminars and presentations on job search strategies and started to make contacts within the automotive industry - In July 2003, the plaintiff secured a six-month contract with the City of Peterborough - The trial judge, while noting the lack of documentary evidence, relied on the evidence before him and ruled that the plaintiff had not failed to mitigate his damages - The Ontario Court of Appeal upheld the ruling - See paragraphs 12 to 15, 28, 29, 64 to 68.

Master and Servant - Topic 8074

Dismissal without cause - Damages - Stock options - The trial judge approached the question of the plaintiff's entitlement under his corporate employer's employee stock purchase plan by stating that his objective was to put the plaintiff in a position that he would have been had he worked during the notice period (six months) and purchased shares under the plan - The purchase price was the market price on the day when the plaintiff could have purchased shares, less the 15% employee discount - The problem was determining the sale price - The trial judge used the highest share value within the two years from the date of the "notional purchase" - The plaintiff's loss here was then valued as the difference between the price of the shares that he could have purchased on the two dates, at the discounted price, and the highest share value within the two years from the date of the notional purchases - The Ontario Court of Appeal quashed this ruling - The notional sale price should have been based on the average market value of the shares during the two-year period following the notional purchase - See paragraphs 69 to 78.

Cases Noticed:

Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.), consd. [para. 17].

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, consd. [paras. 20, 81].

Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1; 42 O.R.(3d) 321 (C.A.), consd. [para. 34].

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200, consd. [para. 38].

Isaacs v. MHG International Ltd. (1984), 3 O.A.C. 301; 45 O.R.(2d) 693 (C.A.), refd to. [para. 46].

Hall v. Canadian Corporate Management Co. and Regal Cashway Sales Ltd. (1984), 3 O.A.C. 289; 4 C.C.E.L. 166 (C.A.), refd to. [para. 46].

Titus v. Cooke (William F.) Enterprises Inc. et al. (2007), 228 O.A.C. 232; 284 D.L.R.(4th) 734 (C.A.), refd to. [para. 57].

Wilson v. Goodyear Canada Inc. (2007), 238 B.C.A.C. 44; 393 W.A.C. 44; 66 B.C.L.R.(4th) 99 (C.A.), refd to. [para. 57].

Keays v. Honda Canada Inc. (2008), 376 N.R. 196; 239 O.A.C. 299; 294 D.L.R.(4th) 577 (S.C.C.), consd. [para. 61]; refd to. [para. 81].

Ditchburn v. Landis & Gyr Powers Ltd. (1997), 101 O.A.C. 72 (C.A.), consd. [para. 98].

Gismondi v. Toronto (City) (2003), 171 O.A.C. 1 (C.A.), consd. [para. 102].

Lowndes v. Summit Ford Sales Ltd. et al. (2006), 206 O.A.C. 55 (C.A.), consd. [para. 102].

Mulvihill v. Ottawa (City) (2008), 235 O.A.C. 113; 2008 ONCA 201, consd. [para. 102].

Counsel:

Douglas F. Best and Janela Jovellano, for the appellants;

Robert W. Becker, for the respondent.

This appeal was heard on June 24, 2008, by Blair, Juriansz and Epstein, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was released on December 15, 2008, and the following reasons were filed:

Epstein, J.A. (Blair, J.A., concurring) - see paragraphs 1 to 80;

Juriansz, J.A., dissenting in part - see paragraphs 81 to 111.