CITATION: Foreshew Trucking v. Tucker, 2007 ONCA 524

DATE: 20070709

DOCKET: C44488

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., MOLDAVER and ROULEAU JJ.A.

BETWEEN:

CAREY FORESHEW carrying on business as FORESHEW TRUCKING and 1099261 ONTARIO LTD.

Plaintiffs (Appellants)

and

WAVELL TUCKER

Defendant (Respondent)

Ian McLean for the appellants

Wavell Tucker appearing in person

Heard: July 6, 2007

On appeal from the judgment of Justice Norman M. Karam of the Superior Court of Justice dated October 20, 2005.

APPEAL BOOK ENDORSEMENT

[1] We see no basis to interfere with the trial judge’s finding that the respondent did not breach the employment agreement. Nor do we see any reason to interfere with the trial judge’s finding that the appellant breached the employment agreement by failing to give reasonable notice of termination.

[2] The trial judge did not indicate what would have been a reasonable notice period. Instead, the trial judge determined that appropriate remedy was that the respondent was entitled to a 56 per cent interest in the truck.

[3] With respect, we think the trial judge erred. The lease agreement created a lessor/lessee relationship with an option for the respondent to purchase the truck at the end of the term. The agreement did not provide that the respondent, as lessee, acquired any ownership interest in the truck before exercising the option at the end of the term. The appellants’ breach of the employment agreement did not entitle the respondent to an equity interest in the truck, but only damages for that breach.

[4] The trial judge did not assess those damages. We are satisfied that an award of $6,000 to the respondent, representing two months’ notice, would be reasonable in the circumstances.

[5] We must also address the respondent’s failure to return the truck when he stopped making payments under the lease. At that point, he should have returned the truck to the appellants. The outstanding balance was $36,000 which the appellants paid to the financing company.

[6] By the time the respondent delivered the truck to the appellants, approximately two years later, the value of the truck as found by the trial judge was $30,000. Accordingly, we find that the appellants suffered a loss of $6,000.

[7] In the result, we have concluded that there should have been offsetting damage awards of $6,000 each.

[8] Accordingly, the appeal is allowed. The judgment below is varied by striking para. 2 of the judgment.

[9] In the circumstances, we direct that there will be no costs in this court or in the court below.