DATE: 20051202

DOCKET: C41617

COURT OF APPEAL FOR ONTARIO

RE:

JAMES RIENZO (Plaintiff (Appellant)) – and – WASHINGTON MILLS ELECTRO MINERALS CORPORATION (Defendant (Respondent))

BEFORE:

CRONK, ARMSTRONG and LANG JJ.A.

COUNSEL:

Margaret A. Hoy

for the appellant

Robert B. Reid and Leanne E. Standryk

for the respondent

HEARD & RELEASED ORALLY:

November 24, 2005

On appeal from the order of Justice G. William Dandie of the Superior Court of Justice dated March 3, 2004.

E N D O R S E M E N T

[1] In our view this appeal must be allowed for the following reasons.

[2] First, the trial judge held that after the termination of his employment by the respondent, the appellant did not discharge his obligation to mitigate his damages because he failed to attempt to find employment “as a school crossing guard or as a court services officer or such similar employment”. The trial judge later observed that, although the appellant sought new employment, he did not seek the “right” employment, “namely that which might be readily available to him”. This misconception of the nature of the appellant’s mitigation burden is reversible error.

[3] The appellant’s obligation was to act reasonably and diligently in attempting to locate alternative comparable employment. No party suggested at trial that the appellant was obliged to consider alternative employment of the type suggested by the trial judge or that the appellant had any experience with employment of that kind. Moreover, there was evidence before the trial judge demonstrating that the appellant continued to seek new employment of a nature similar to his previous employment with the respondent for a period in excess of two years following the respondent’s termination of his employment.

[4] For these reasons, the trial judge’s discounting of the damages to which he felt that the appellant was entitled on account of the suggested failure by the appellant to mitigate his damages is unsustainable. Setting aside this discount, on the trial judge’s own analysis the appellant was entitled to damages based on 20 months notice of termination.

[5] However, the trial judge also erred in his determination of an appropriate notice period for the appellant. At the time of the termination of his employment, the appellant was 61 years of age. He had worked for the respondent for about 32 years and, when he was fired, was serving in a middle management position. The trial judge found that the appellant performed a “very important” function for the respondent. The evidence at trial established that following the termination of his employment, the appellant had few, if any, prospects for employment in a comparable position. The trial judge advanced no reason for failing to award the appellant a notice period at the high end of the appropriate range, that is, 24 months. In all the circumstances, this was the notice period to which the appellant, in our opinion, was entitled.

[6] The appellant is also entitled to the value of all benefits that would have been available to him during this 24 month period but for the termination of his employment, including all applicable dental and health benefits, employer contributions to the Canada Pension Plan, employer contributions to the appellant’s Registered Retirement Savings Plan and wage increases. Before this court, the parties were unable to agree on the quantum of these benefits.

[7] We have considered the other grounds of appeal advanced by the appellant in support of his claim for further augmentation of his notice period. On the record before us, we are unable to give effect to these submissions. The trial judge found that the respondent did not act in bad faith and that its treatment of the appellant was not unfair. There was evidence at trial that supports these findings. Thus, although we might have reached a different conclusion on these issues, there is no basis for appellate intervention with the trial judge’s decision to deny the appellant a notice period beyond the 24 months that marked the end of the applicable range of appropriate notice.

[8] Accordingly the appeal is allowed and paragraph one of the judgment of the trial judge is varied in accordance with these reasons. If the parties are unable to agree on the net benefits owing to the appellant as provided for in these reasons, that issue is remitted to the Superior Court of Justice in Welland to be determined by such judge of that court as is designated for that purpose by the Regional Senior Justice of that region.

[9] The appellant is entitled to his costs of this appeal on a partial indemnity basis, fixed in the total amount of $12,000, inclusive of disbursements and Goods and Services Tax. In addition, with respect to the costs of the trial, if the parties are unable to agree on the costs to which the appellant is entitled by reason of this decision, that matter is also remitted to the Superior Court of Justice in Welland to be determined by the judge designated for that purpose, in accordance with these reasons.

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”

“S.E. Lang J.A.”