Peterson v. Electro Sonic Inc., [2000] O.T.C. 270 (SupCt)

• Judge: C. Campbell, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 27, 2000
• Jurisdiction: Ontario
• Citations: [2000] O.T.C. 270 (SupCt)

Peterson v. Electro Sonic Inc., [2000] O.T.C. 270 (SupCt)

MLB headnote and full text

Temp. Cite: [2000] O.T.C. TBEd. MY.007

Pauline Peterson (plaintiff) v. Electro Sonic Inc. (defendant)

(Court File No. 99-CV-167174CM)

Indexed As: Peterson v. Electro Sonic Inc.

Court of Ontario

Superior Court of Justice

C. Campbell, J.

April 27, June 28 and August 8, 2000.

Summary:

The plaintiff commenced employment with the defendant in 1974 as an invoice clerk. By 1999, she was a Product Manager. In 1998, the defendant expressed dissatisfaction with the plaintiff's performance and offered her three alternatives: (1) an offer of her previous job as product buyer; (2) continue as a Product Manager with a warning that absent improvement in performance she would be terminated; and (3) early retirement. The plaintiff rejected options 1 and 3. In March 1999, her employment was terminated and an offer was made to continue her salary for 15 months. The plaintiff rejected the offer and sued for wrongful dismissal. Termination for cause was not alleged. The defendant submitted that the plaintiff failed to mitigate her damages by not accepting the defendant's offer of the product buyer position and by doing nothing to search for a job for two months after she was terminated.

The Ontario Superior Court held that the appropriate notice period was 20 months and that there was no bad faith or other type of conduct by the defendant which would increase that period. The plaintiff did not fail to mitigate by not accepting the lesser position of buyer. Her efforts to obtain re-employment, while meagre, also did not amount to a failure to mitigate where she was emotionally upset upon her dismissal and a reasonable period of time was appropriate for her to get her life back in order before considering re-employment. The plaintiff was not entitled to any additional amounts for vacation pay. In an addendum to its decision, the court awarded the plaintiff prejudgment interest on an instalment basis and held that a Christmas bonus should be included in the damages to which she was entitled. In an endorsement on costs, the court awarded the plaintiff party and party costs to the date of her successful offer to settle and solicitor and client costs thereafter.

Damages - Topic 6748

Contracts - Employment relationship or contract - For breach by employer - Loss of holiday or vacation pay - See paragraphs 70 to 78.

Damages - Topic 6750

Contracts - Employment relationship or contract - For breach by employer - Loss of bonus or profit sharing - See paragraph 90.

Damages - Topic 6753

Contracts - Employment relationship or contract - For breach by employer - Mitigation by employee - See paragraphs 56 to 69.

Interest - Topic 5104

Interest as damages (prejudgment interest) - Breach of contract - Employment contracts - See paragraphs 83 to 89.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - See paragraphs 37 to 52.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dismissal - Reasonable notice - Considerations affecting (incl. bad faith) - See paragraphs 53 to 55.

Master and Servant - Topic 8007

Dismissal without cause - Notice of dismissal - Reasonable notice - Long service employees dismissed - See paragraphs 37 to 52.

Master and Servant - Topic 8064

Dismissal without cause - Damages - Mitigation - See paragraphs 56 to 69.

Practice - Topic 7248

Costs - Party and party costs - Offers to settle - Costs to successful plaintiff - See paragraphs 93 to 101.

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. 37].

Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.), refd to. [para. 40].

Cronk v. Canadian General Insurance Co. (1995), 85 O.A.C. 54; 25 O.R.(3d) 505 (C.A.), refd to. [para. 42].

Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1; 168 D.L.R.(4th) 270 (C.A.), refd to. [para. 43].

R. v. Arthurs; Ex parte Port Arthur Shipbuilding Co., [1969] S.C.R. 85, refd to. [para. 48].

Dowling v. Halifax (City), [1998] 1 S.C.R. 22; 222 N.R. 1; 165 N.S.R.(2d) 161; 495 A.P.R. 161, refd to. [para. 49].

Antonacci v. Great Atlantic & Pacific Co. of Canada Ltd. (2000), 128 O.A.C. 236 (C.A.), refd to. [para. 50].

Schmidt v. Coatings 85 Ltd. (1999), 119 O.A.C. 345 (C.A.), refd to. [para. 50].

Sills v. Children's Aid Society of Belleville (City) et al., [1999] O.T.C. Uned. 689 (Sup. Ct.), refd to. [para. 50].

Jardine v. Gloucester (City) (1999), 85 O.T.C. 11 (Gen. Div.), refd to. [para. 50].

Stolze v. Delcan Corp. (1998), 82 O.T.C. 260 (Gen. Div.), refd to. [para. 50].

Halliday v. Hanover Kitchens (Canada) Inc. (1997), 44 O.T.C. 73 (Gen. Div.), refd to. [para. 50].

Kilpatrick v. Peterborough Civic Hospital (1998), 60 O.T.C. 386 (Gen. Div.), refd to. [para. 50].

Rezner v. Anchor Cap & Closure Corp. of Canada Ltd. (1997), 39 O.T.C. 312; 31 C.C.E.L.(2d) 208 (Gen. Div.), refd to. [para. 51].

Nastasi v. Eaton Yale Ltd. et al. (1997), 25 O.T.C. 342 (Gen. Div.), refd to. [para. 51].

Kissner v. Goodall & Hills et al. (1999), 102 O.T.C. 210 (Sup. Ct.), refd to. [para. 51].

Mifsud v. MacMillan Bathurst Inc. (1989), 35 O.A.C. 356; 28 C.C.E.L. 228 (C.A.), refd to. [para. 59].

Cayen v. Woodwards Stores Ltd. (1993), 22 B.C.A.C. 32; 38 W.A.C. 32; 45 C.C.E.L. 264 (C.A.), refd to. [para. 61].

Stevens v. Globe and Mail et al. (1996), 90 O.A.C. 361; 28 O.R.(3d) 481 (C.A.), refd to. [para. 84].

Canadian Imperial Bank of Commerce v. Rockway Holdings Ltd. et al. (1996), 7 O.T.C. 210; 29 O.R.(3d) 350 (Gen. Div.), refd to. [para. 97].

Skye v. Matthews et al. (1996), 87 O.A.C. 381; 47 C.P.C.(3d) 222 (C.A.), refd to. [para. 98].

Statutes Noticed:

Employment Standards Act, R.S.O. 1990, c. E-14, sect. 28(1) [para. 70].

Authors and Works Noticed:

Echlin, Randall Scott, and Certosimo, Matthew L.O., Just Cause: The Law of Summary Dismissal in Canada (Looseleaf Ed.), p. 15-1 [para. 47].

Waddams, Stephen M., The Law of Damages (1998) (Looseleaf Ed.), pp. 7-27 [para. 84]; 7-28 [para. 86]; 15-10 [para. 58].

Counsel:

Daphne Johnston, for the plaintiff;

Michael G. Horan, for the defendant.

This action was heard on April 19 and 20, 2000, before C. Campbell, J., of the Ontario Superior Court, who released the following decision on April 27, 2000, and an addendum on June 28, 2000. C. Campbell, J., also released an endorsement on costs on August 8, 2000.

Please note: The following judgment has not been edited.