DIVISIONAL COURT FILE NO.: 333/06

DATE: 2007/03/09

ONTARIO

SUPERIOR COURT OF JUSTICE

(Divisional Court)

B E T W E E N:

BECK TAXI LIMITED

Appellant

• and -

MOHAMMAD CHAUDHRY

Respondent

Thomas D. Galligan

for the Appellant

Allan Rouben

for the Respondent

HEARD: March 5, 2007

CARNWATH, MATLOW AND JENNINGS J.J.

REASONS FOR JUDGMENT

Jennings j.

overview:

1Beck Taxi Limited (“Beck”) appeals from the Judgment of the Honourable Mr. Justice Somers dated August 22, 2006, awarding Mr. Chaudhry punitive damages in the sum of $7,5000.00.

2Beck asks as well for leave to appeal costs, awarded on a substantial indemnity scale, fixed at $31,500.00.

3Mr. Chaudhry by cross-appeal seeks an award of aggravated damages and for an order increasing the costs awarded at trial.

4Leave to appeal the order as to costs was granted.

FACTS:

5Drivers for Beck are independent contractors. Beck requires that drivers paint their taxis in Beck’s distinctive orange and green colours, that they affix a Beck roof light on the automobile and equip the automobile with a two-way radio, meter and credit card charge machine. Taxi drivers are required to pay a monthly fee to subscribe to Beck’s dispatch service.

6Beginning in 2002, Mr. Chaudhry drove a Beck taxi that he rented from a Beck driver. In 2004, he bought his own taxi and brought it into compliance with Beck’s requirements. He became a member of the “Beck family” of drivers paying the monthly subscription fee.

7About four weeks later, Beck terminated its contractual relationship with Mr. Chaudhry. The trial judge found as a fact that there was a perception on the part of Beck’s management that Mr. Chaudhry was engaged in an attempt to unionize Beck drivers and that on that account Beck’s management was satisfied that the company would be better off without him because he was something of a trouble maker. Accordingly, Beck terminated the relationship.

8The trial judge found that on the evidence before him, there was an obligation implied term in the contract obliging Beck to provide Mr. Chaudhry with reasonable notice of the termination of the contract.

9After a careful review of the law, and of the evidence, the trial judge concluded that Mr. Chaudhry was entitled to eight (8) weeks notice of termination of the agreement.

10The trial judge found that Mr. Chaudhry did not experience a loss of income or out-of-pocket expenses as a result of the termination of his contract because he immediately found new employment. Accordingly he declined to award general damages for breach of contract. On that account, the trial judge declined to award aggravated damages.

11The trial judge found that Beck’s treatment of Mr. Chaudhry in the manner of, and reasons for, his dismissal was “sufficiently malicious and high handed to offend the court’s sense of decency”, applying Hill v. Church of Scientology Toronto, [1995], 2 S.C.R. 1130 (S.C.C.), and assessed punitive damages in the amount to which I have previously referred.

ANALYSIS:

12Counsel for Beck submits that there was no finding of a separate actionable wrong which is required to support an award of punitive damages. We disagree. The trial judge found that the motivation for terminating the contract was Beck’s perception that Mr. Chaudhry was attempting to organize an union. There was evidence before the trial judge to support that finding. The Labour Relations Act R.S.O. 1995, provides that an employer shall not interfere in the formation of a trade union. Beck’s violation of the provisions of the statute can give rise to an independent actionable wrong sufficient to justify the imposition of punitive damages. See, Keays v. Honda Canada Inc., (2007), 82 O.R. (3d) 161 (Ont. C.A.).

13With respect to costs, the trial judge considered the length of trial (5 days) and found that it would not have been possible to shorten it. He found “…the defences raised reflected seriously on the character and integrity of the Plaintiff” and awarded substantial indemnity costs.

14That notwithstanding, he substantially reduced the Plaintiff’s bill of costs because the action was a Simplified Rules case and in the opinion of the trial judge “…the amount of the costs claimed must bear some relevance to the amount at issue in the case itself”. In our opinion, the trial judge properly considered the matters relevant to the exercise of his discretion and we see no reason to interfere with his award.

15Accordingly, the appeal is dismissed.

CROSS-APPEAL:

16Because the trial judge made no award for general damages, he was of the view that aggravated damages could not be considered and on the evidence before him we are satisfied that he was correct.

17We have already expressed our view on the costs award made at trial.

18The appeal was dismissed.

COSTS:

19Both the appeal and the cross-appeal having been dismissed, success has been evenly divided. The time spent in presenting the two appeals was approximately the same. Following argument, we heard submissions as to costs. Notwithstanding those submissions in our opinion, success being divided, this is not a case where an order for costs should be made, and we make no such order.

CONCLUSION:

20The appeal and the cross-appeal are dismissed. No order as to costs.

Carnwath J.

Matlow J.

Jennings J.