DATE: 20020911 DOCKET: C33321

COURT OF APPEAL FOR ONTARIO

RE: RICHARD CLARK, carrying on business as INTELLIGENT WORKBENCH CORP. (Plaintiff (Appellant)) - and - THE COOPERS & LYBRAND CONSULTING GROUP (Defendant (Respondent))

BEFORE: FELDMAN, MACPHERSON and ARMSTRONG JJ.A.

COUNSEL: Jeffrey C. Barnabe, Q.C., for the appellant

Bruce Carr-Harris and Lawrence A. Elliot, for the respondent

HEARD: September 5, 2002

RELEASED ORALLY: September 5, 2002

E N D O R S E M E N T

[1] [1] The appellant significantly misrepresented his credentials in order to obtain a consulting position with the respondent. The trial judge found that the appellant would not have been hired had the respondent known the truth about the credentials.

[2] [2] The appellant’s compensation package included salary and a bonus based on a percentage of his earnings. The bonus was only payable at the end of the year. When the respondent learned about the misrepresentation, it terminated the appellant, who had performed very successfully in his position and had earned significantly for the respondent.

[3] [3] The appellant sued for wrongful dismissal and payment of his bonus and the respondent counterclaimed for damages it had suffered, mostly for losses from some ongoing business as a result of the termination. The trial judge dismissed the action and allowed an amount for damages on the counterclaim.

[1] [4] The appellant only appeals with respect to his bonus on the basis that the bonus had been earned by him and the respondent only earned the monies as a result of the efforts of the appellant.

[2] [5] We agree with the trial judge that in these circumstances the court cannot assist the appellant to benefit from his own wrongdoing. In our view, this case is analogous to the decision of the Alberta Queen’s Bench in Schafer v. Pan Matrix Informatics Ltd. (1987), 1987 3500 (AB KB), 80 A.R. 378 which is referred to by the trial judge at para. 54 of his reasons as follows:

Schafer v. Pan Matrix Informatics Ltd. (1987, 1987 3500 (AB KB), 80 A.R. 378 was heard in the Alberta Court of Queen’s Bench. It illustrates that an employer can terminate employment for cause where an employee fraudulently misrepresents his qualifications during negotiations for his position and terms of employment. The employee who is dismissed for cause is not entitled to bonus remuneration when he fraudulently misrepresents his qualifications to an employer who would not have agreed to these terms in the employment contract had it known the truth about the employee’s employment credentials.

[3] [6] We would therefore dismiss this appeal with costs. The costs are fixed at $12,000 on a partial indemnity basis.

Signed: “K. Feldman J.A.

“J.C. MacPherson J.A.”

“Robert P. Armstrong J.A.”