COURT OF APPEAL FOR ONTARIO
RE: DAVID GALBRAITH (Plaintiff (Respondent)) – and – ACRES INTERNATIONAL LIMITED and ACRES INCORPORATED (Defendants (Appellants))
BEFORE: McMURTRY C.J.O., CARTHY AND GOUDGE JJ.A.
COUNSEL: W. Bruce Drake For the appellant
David Harris For the respondent
HEARD: September 17, 2002
On appeal from the judgment of Justice Nancy Backhouse of the Superior Court of Justice dated March 22, 2001.
E N D O R S E M E N T
Released Orally September 18, 2002
1[1] We see no basis for interfering with the findings of the trial judge. We would address the three arguments raised by the appellant as follows.
2[2] First, the removal of 90% of the respondent’s duties is enough to sustain the finding of constructive dismissal. It is not necessary in our view that a finding of constructive dismissal of a manager require the removal of 100% of his or her duties.
3[3] Second, the finding that the alternative offered to the respondent was demeaning to him is a sufficient basis to excuse him from taking it by way of litigation.
4[4] Finally, there was an ample basis for the factual finding that age was a factor in the change of the respondent’s duties, which is the only basis for the attack made by the appellant on the Wallace extension.
5[5] For these reasons the appeal must be dismissed. Costs fixed at $16,483.88.
“R.R. McMurtry C.J.O.”
“J.J. Carthy J.A.”
“S.T. Goudge J.A.”