DATE: 20020924 DOCKET: C36153

COURT OF APPEAL FOR ONTARIO

RE: DAVID GALBRAITH (Plaintiff (Respondent)) – and – ACRES INTERNATIONAL LIMITED and ACRES INCORPORATED (Defendants (Appellants))

BEFORE: McMURTRY C.J.O., CARTHY AND GOUDGE JJ.A.

COUNSEL: W. Bruce Drake For the appellant

David Harris For the respondent

HEARD: September 17, 2002

On appeal from the judgment of Justice Nancy Backhouse of the Superior Court of Justice dated March 22, 2001.

E N D O R S E M E N T

Released Orally September 18, 2002

[1] [1] We see no basis for interfering with the findings of the trial judge. We would address the three arguments raised by the appellant as follows.

[2] [2] First, the removal of 90% of the respondent’s duties is enough to sustain the finding of constructive dismissal. It is not necessary in our view that a finding of constructive dismissal of a manager require the removal of 100% of his or her duties.

[3] [3] Second, the finding that the alternative offered to the respondent was demeaning to him is a sufficient basis to excuse him from taking it by way of litigation.

[4] [4] Finally, there was an ample basis for the factual finding that age was a factor in the change of the respondent’s duties, which is the only basis for the attack made by the appellant on the Wallace extension.

[5] [5] For these reasons the appeal must be dismissed. Costs fixed at $16,483.88.

“R.R. McMurtry C.J.O.”

“J.J. Carthy J.A.”

“S.T. Goudge J.A.”