DATE: 20020920
DOCKET: C35972

COURT OF APPEAL FOR ONTARIO

RE: GARY GILBERT (Appellant) - and - WITTNAUER WORLDWIDE L.P. (Respondent)

BEFORE: ABELLA, AUSTIN and MOLDAVER JJ.A.

COUNSEL: Jeffrey D. A. Murray, for the appellant Michele Ballagh, for the respondent

HEARD: September 13, 2002

RELEASED ORALLY: September 13, 2002

On appeal from the judgment of Justice Bonnie J. Wein dated February 1, 2001.

E N D O R S E M E N T

[1] [1] In our view, the trial judge erred in not applying an objective test in assessing liability. An objective review of the facts leads inescapably to the conclusion that a constructive dismissal occurred on April 16, 1998. This is based on, among others, factors such as the substantial reduction in managerial responsibility; the removal of the appellant from his office and the perceived and actual loss of leadership in the company.

[2] [2] In these circumstances, there was no duty on the appellant’s part to remain at the workplace while seeking other employment.

[3] [3] The appellant is therefore entitled to the damages fixed by the trial judge in the amount of $187,791.00, less the amount he conceded he owed in the amount of $16,524.05.

[1] [4] The appeal is therefore allowed with costs both of the appeal and the trial. The judgment of Justice Wein is set aside, and in its place, damages to the appellant are fixed in the amount of $171,269.25. Trial costs will be fixed at $34,000 and costs of the appeal at $10,000.

“R.S. Abella J.A.”

“Austin J.A.”

“M. J. Moldaver J.A.”