DATE: 20030624

DOCKET: C37024

COURT OF APPEAL FOR ONTARIO

RE:

OWEN M. O’NEIL (Plaintiff/Respondent) v. TOWERS PERRIN INC. (Defendant/Appellant)

BEFORE:

O’CONNOR A.C.J.O., MORDEN and SIMMONS JJ.A.

COUNSEL:

Neal B. Sommer and Gillian Shearer

for the appellant

D. Barry Prentice

For the respondent

HEARD & ENDORSED:

May 23, 2003

On appeal from the judgment of Justice P.G. Jarvis of the Superior Court of Justice dated August 28, 2001.

A P P E A L B O O K E N D O R S E M E N T

[1] It was open to the trial judge to treat the respondent’s bonus and profit sharing as a form of deferred compensation. There was evidence that when the respondent was hired in 1988, he was told that the bonus and profit sharing would be treated as such. It was not until 1997 that the annual compensation statements provided to the respondent by the appellant referred to the eligibility requirements for payment of the bonus and profit sharing. Moreover, consistent with the notion of deferred compensation, the evidence showed that the bonus and profit sharing formed a substantial portion of the respondent’s compensation each year. During the years 1993 to 1997, they constituted just over one half of his total compensation. In these circumstances, the trial judge properly included the amounts in issue in the damage award.

[2] The trial judge awarded damages for one week’s vacation earned but not taken. We see no error in that award.

[3] The appeal is, therefore, dismissed.

[4] Costs to the respondent are fixed on a partial indemnity basis in the amount of $15,000, inclusive of disbursements and GST.