COURT FILE NO.: 251/05
DATE: 20060403
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, CHAPNIK AND WHALEN JJ.
B E T W E E N:
TONY HADJIS
Plaintiff
(Respondent)
- and -
MORNINGSTAR RESEARCH INC.
Defendant
(Appellant)
Howard Markowitz, for the Plaintiff
John P. McGowan, for the Defendant
HEARD: April 3, 2006
CHAPNIK J.: (Orally)
[1] The appellant, Morningstar Research Inc., appeals from the judgment of Horkins J., dated May 18, 2005.
[2] In that decision, she awarded the respondent judgment after trial in the amount of $14,339.33, plus pre-judgment interest and costs against the appellant for damages arising from the termination of his employment. Horkins J. held that the acceptance of four months’ severance pay did not constitute an accord and satisfaction of his claim for damages. In particular at page 18 of her Reasons for Decision, she states as follows:
“If an employer wishes to take the position that there has been accord and satisfaction, it is imperative, in my view, that the Employment Standards Act payment be issued to the dismissed employee in a separate cheque. The additional notice should be paid separately. The employee will then have a choice as to whether or not he should accept both cheques. The situation will be clear. Since Morningstar did not clearly provide the plaintiff with this option, it is neither fair nor reasonable to conclude that there was accord and satisfaction.”
[3] The learned judge further held that though the respondent’s mitigation efforts were “less than satisfactory”, she was not prepared to conclude that the evidence justified a discounting of the plaintiff’s entitlement on reasonable notice. At page 35 of her reasons, Horkins J. concluded:
“In this case there is no question that the plaintiff’s mitigation efforts and documentary proof of such efforts are less than satisfactory. However, I cannot conclude that no efforts were made to find other employment and for this reason I reject the defendant’s argument that a failure to mitigate exists that merits a reduction in the notice to which the plaintiff is entitled.”
[4] The matters in issue can be characterized as matters of mixed fact and law thus engaging a standard reasonableness. In reviewing the Reasons for Decision in the context and circumstances of this particular case, we find that Horkins J. was alive to the issues and there was no error in fact or law. Her conclusions were entirely reasonable and well supported by the evidence. We would not interfere with them.
[5] The appeal is therefore dismissed.
CARNWATH J.
[6] Costs. There will be costs to the respondent fixed at $4,000.00, inclusive of fees, disbursements and GST, payable within thirty days.
CARNWATH J.
CHAPNIK J.
WHALEN J.
Date of Reasons for Judgment: April 3, 2006
Date of Release:
COURT FILE NO.: 251/05
DATE: 20060403
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, CHAPNIK AND WHALEN JJ.
B E T W E E N:
TONY HADJIS
Plaintiff
- and -
MORNINGSTAR RESEARCH INC.
Defendant
ORAL REASONS FOR JUDGMENT
CHAPNIK J.
Date of Reasons for Judgment: April 3, 2006
Date of Release: