COURT FILE NO.: 760/03

DATE: 20050530

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, JENNINGS AND SWINTON JJ.

B E T W E E N:

DUDLEY DULLING

Plaintiff (Respondent)

• and -

TNT CANADA INC.

Defendant (Appellant)

Melvin I. Rotman, for the Plaintiff (Respondent)

Jonathan D. Cocker, for the Defendant (Appellant)

HEARD: May 30, 2005

MATLOW J.: (Orally)

1The respondent abandons his cross appeal and his claim for pre-judgment interest, and accordingly we are able to accept jurisdiction under s.19(1) of the Courts of Justice Act to hear this appeal.

2The appeal is allowed in part. The judgment below is varied by reducing the amount by one-third to reflect our view that the two month extension of the notice of termination period was wrong. The appeal is otherwise dismissed.

3We are all of the view that no error has been shown in the trial judge’s finding that there was no just cause for the termination of the respondent’s employment. On this issue, the appellant has failed to meet the requisite standard of review of persuading us that this finding was clearly wrong. However, with respect, we are persuaded that the trial judge erred in law in extending the notice of termination period in the absence of any evidence that, as a result of the termination, the respondent suffered any injuries for which compensation can properly be awarded. See Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701.

4The respondent failed to adduce any evidence that the termination either prolonged or aggravated his depression.

5This appeal is allowed by reducing the amount of the judgment in appeal by one-third. No costs. The appeal is otherwise dismissed.

MATLOW J.

JENNINGS J.

SWINTON J.

Date of Reasons for Judgment: May 30, 2005

Date of Release: June 6, 2005

COURT FILE NO.: 760/03

DATE: 20050530

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT