COURT FILE NO.: 47/02

DATE: 20040513

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, MACFARLAND AND MATLOW JJ.

B E T W E E N:

TUAN JUHARY

Plaintiff (Appellant)

• and -

RICHTREE MARKETS INC.

Defendant (Respondent)

Bram A. Lecker, for the Appellant (Plaintiff)

Marsha Lindsay, for the Respondent (Defendant)

HEARD: May 13, 2004

O’DRISCOLL J.: (Orally)

1After a non-jury trial before Jennings J. at Toronto on November 16, 2001 and December 10, 2001, the trial judge reserved judgment until December 11, 2001 at which time he gave oral reasons dismissing the appellant’s/plaintiff’s claim for wrongful dismissal.

2The keystone of the appellant’s claim was the validity and the legality of a mutual release signed by the plaintiff and defendant on February 22, 2001 and found at pp. 132, 133 of the appellant’s exhibit book. At p. 3 of his reasons, the trial judge found as follows:

“Where there is a conflict between his recollection and that of the plaintiff, I consider Mr. Bogardo’s evidence to be on that account more reliable.”

3In his reasons, Jennings J. reviewed the chronology of the discharge from December 13, 2000 to February 22, 2001. Then, at p. 12 of the reasons, during the course of the analysis, the trial judge said:

“Simply put, there was no evidence whatsoever that the plaintiff was forced to sign the mutual release which is found at tab 24 of Exhibit 1. Granting that in a termination there is often present an inherent element of coercion where, as the result of an interruption and regular income, the former employee is compelled to consider a quick settlement, there was little of that present here. There was no pressure put upon Mr. Juhary to settle. He was twice urged to get professional advice before making up his mind. He is an educated professional who had exercised managerial responsibilities with the defendant and who had himself attended educational programmes dealing with the administration of employees. The timetable in implementing the settlement was left in his hands.

It was Mr. Juhary who put forward a settlement proposal on February 9, 2001 which the defendant accepted, subject to confirmation by Juhary as to the method of payment which he preferred. Whatever the plaintiff may have thought, I accept Mr. Bogardo’s evidence that he never told the plaintiff there would be no payment without the release if for no other reason than that Mr. Bogardo was well aware that the statutory minimum had to be paid.”

At p. 14 of his reasons, the trial judge said:

“True it is that Mr. Juhary might not have been aware of his full entitlement, but there was no pressure exerted, no misleading as to the cause of termination and, most importantly, no proposal put forward by the entity possessing superior bargaining power which Mr. Juhary felt compelled to accept.”

At p. 17 of his reasons, we find:

“There is no evidence that the defendant in this case was untruthful, misleading or unduly insensitive. Mr. Juhary was twice urged to seek advice, once before his proposal for settlement and once after he had made it. Mr. Bogardo assumed he had sought and received advice. The release Mr. Juhary signed contained his acknowledgement that he had received such advice. The unfortunate fact is that he himself is to blame for not doing what he was to do.”

4That release is found at pp. 132 and 133 of the Appellant’s Exhibit Book:

“THE PARTIES agree that they have read the above release and have obtained independent legal advice with respect thereto and understand that it contains a full and final release of all claims that they have, or may have, against one another relating to the employment or the termination of such employment and that there is no admission of liability on the part of either party and that any such liability is denied.”

5At p. 18 of his reasons, before dealing with damages, the trial judge said:

“I, accordingly, must find that the mutual release signed by the plaintiff is a complete defence to this action.”

6It may be that the plaintiff did not make the most beneficial agreement that was open to him, but there is nothing unconscionable about the agreement reached.

7The other ground of appeal that was argued was that the trial judge erred in allowing an amendment to the statement of defence at the opening of the trial. At p. 6 of the transcript of the first day of the trial, namely, November 16, 2001, counsel for the defendant, in the course of submissions, said:

“The documents that my friend has provided in his own affidavit of documents states that his salary is $50,000 a year. The pay stubs that my friend has provided in his affidavit of documents shows an income of $50,000 a year, right up until the termination of his employment in February of 2001. I would be quite surprised if the plaintiff comes before you, Your Honour, and testified to the fact that he was making $60,000 when all the documentation indicates he was making $50,000. I don’t believe that this amendment or withdrawal would be prejudicial to my friend because they’re aware. He received his pay stub every single – every two weeks, so he was aware of what he was making. It was something that was raised at the pre-trial and my friend has had ample opportunity to deal with that.”

8In disposing of the application and allowing the amendment, the trial judge said at p. 9 of that day’s transcript:

“Although the motion was partly brought in a timely fashion, I am not persuaded that the plaintiff will be unduly or indeed at all prejudiced by consenting to the withdrawal of the admission and permitting the amendment. I will accordingly allow this motion and grant the amendment with costs to the plaintiff fixed at $400 payable forthwith. Are you ready to proceed?

MR. LECKER: Yes, Your Honour, I am.”

9We note that the trial proceeded on November 16, 2001 and then was adjourned to resume again on December 10, 2001. We find no merit in either ground of appeal put forward to us today and, therefore, the appeal is dismissed.

O’DRISCOLL J.

MACFARLAND J.

MATLOW J.

Date of Reasons for Judgment: May 13, 2004

Date of Release: May 27, 2004

COURT FILE NO.: 47/02

DATE: 20040513

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT