DATE: 20031021

DOCKET: C37733

COURT OF APPEAL FOR ONTARIO

RE:

KURT IRRCHER (Plaintiff/Respondent) – and – MI DEVELOPMENTS INC. (Defendant/Appellant)

BEFORE:

MORDEN, GOUDGE AND GILLESE JJ.A.

COUNSEL:

Gordon A. Meiklejohn

for the appellant

Maurice J. Nierinck

for the respondent

HEARD:

October 8, 2003

On appeal from the judgment of Justice Douglas Coo of the Superior Court of Justice dated January 7, 2002.

E N D O R S E M E N T

Released Orally October 8, 2003

[1] The trial judge found that the 1990 written contract did not apply to the respondent at the time of his termination because the substratum of the written contract had disappeared. There had been a fundamental change in the nature of his job.

[2] This is a finding of fact and can be interfered with here only if constitutes palpable and overriding error. In our view there was ample evidence to support the finding. The appellant’s responsibilities were dramatically greater. His remuneration was much greater. His method of remuneration had changed. Even his title was different. It was simply not the same job.

[3] We are also of the view that the trial judge was correct in awarding damages for vacation contractually owing, which the appellant had denied to the respondent.

[4] We would therefore dismiss the appeal.

[5] On the cross-appeal the respondent challenges three findings of fact made at trial. In our view, all three challenges fail to meet the high threshold required for us to interfere. It was open to the trial judge to find that the respondent had failed to establish that an obligatory bonus was part of his compensation package. Moreover, the trial judge did not conclude that if the $25,000 bonus was discretionary it would have been paid and we cannot do so in this court.

[6] Secondly, the trial judge had ample basis for concluding that there was a complete lack of precision of understanding and intention concerning a 5% of saving bonus. The evidence yielded no clear and shared understanding of how it could be calculated and hence there was no enforceable agreement to this effect.

[7] Finally, it was open to the trial judge to conclude that the respondent had not proven his claim for 1996 vacation pay, given the amount paid to him some years ago to replace lost vacation time.

[8] We would therefore also dismiss the cross-appeal.

[9] Given the result, we would order that there be no costs of the appeal or the cross-appeal.

“J.W. Morden J.A.”

_ “S.T. Goudge J.A.”

“E.E. Gillese J.A.”