ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Carnwath, Jennings and Janet Wilson JJ.
B E T W E E N:
ROBERT CHARLES PROWSE Applicant
- and -
TOWN OF RICHMOND HILL Respondent
Gary D. Graham, for the Applicant Christopher G. Riggs, Q.C., for the Respondent
HEARD at Toronto: March 25, 2009
Carnwath J.: (Orally)
1The application for judicial review will be dismissed.
2We find the employer/employee relationship was effectively ended on August 20, 2007. Mr. Prowse was put on a leave of absence and continued to receive his salary and benefits.
3His counsel submits that the only remedy that can make Mr. Prowse whole is that we reinstate him under the terms of his former contract of employment. His reasons for this submission are: Firstly, the damage to his reputation will be redressed and the municipal community will be made aware that he was badly treated. Secondly, the municipal community itself will be made aware that it is council who must discharge a clerk, not another municipal employee. Thirdly, Mr. Prowse’s ability to obtain similar employment will be redressed and enhanced because his reputation will be restored.
4In page 60 of the Record, in a letter from the Town to Mr. Prowse dated October 16, 2007, the Town confirmed that Mr. Prowse was dismissed without cause. All the remedies sought by counsel for Mr. Prowse are available in an action for wrongful dismissal. Honda Canada Inc. v. Keays [2008] S.C.C. 39, makes it clear that the manner of wrongful dismissal can attract damages on contractual principles even though the calculation of such damages can no longer be made on the principles in Wallace v. United Grain Growers Ltd. [1997] S.C.R. 701.
5The remedy of mandamus should not be employed to restore Mr. Prowse to an employer/employee relationship which is clearly ruptured and beyond repair.
6We find this case falls squarely within Dunsmuir v. New Brunswick [2008] S.C.C. 9. Reading from paragraph 81:
Where a public employee is employed under a contract of employment, regardless of his or her status as a public office holder, the applicable law governing his or her dismissal is the law of contract, not general principles arising out of public law.
7We reject the submission that the facts of this case raise an exception to the previously noted principle in paragraph 81 of Dunsmuir.
COSTS
8We have taken into account the following factors in exercising our discretion on costs. There are the changes in the law on March 7, 2008; on the two motions, success was divided and the costs were reserved to ourselves; and the principles, of course, in Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291. We reject any suggestion that costs should be reserved to follow an action not yet commenced and we exercise our discretion and fix them at $13,000.00, inclusive of fees, disbursements and GST. Partial indemnity, payable 30 days.
9On the back of the Application Record is the Endorsement: “The application is dismissed for oral reasons given in Court by Carnwath J. and the Costs Endorsement”.
CARNWATH J.
JENNINGS J.
JANET WILSON J.
Date of Reasons for Judgment: March 25, 2009
Date of Release: May 6, 2009
COURT FILE NO.: 575/07
DATE: 20090325
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Carnwath, Jennings and Janet Wilson JJ.
B E T W E E N:
ROBERT CHARLES PROWSE Applicant
- and -
TOWN OF RICHMOND HILL Respondent
ORAL REASONS FOR JUDGMENT CARNWATH J.
Date of Reasons for Judgment: March 25, 2009
Date of Release: May 6, 2009