Court File and Parties

Citation: Brien v. Niagara Motors Limited, 2009 ONCA 887 Date: 2009-12-14 Docket: C49372 Court of Appeal for Ontario Before: Feldman, Armstrong and Epstein JJ.A.

Between: Margaret Brien Plaintiff (Respondent)

and

Niagara Motors Limited Defendant (Appellant)

Counsel: W. Xavier Navarrete and Glen Perinot, for the appellant Michael Bonomi, for the respondent

Heard and released orally: November 18, 2009 On appeal from the judgment of Justice Cheryl Lafrenière of the Superior Court of Justice dated August 20, 2008.

Endorsement

[1] The appellant raises three grounds of appeal from this wrongful dismissal decision awarding 24 months severance plus Wallace damages of two months.

[2] The first ground is that the trial judge erred in treating the respondent as a 23-year employee even though there was a two-year gap in her employment after 6 years when she left to have her second child. We would not give effect to this ground of appeal. The respondent was invited back after two years even though she was not on official maternity leave. She left the employment for family reasons and not for another job. The gap is only two years and the respondent, having been invited back, was reintegrated into the employer’s employment as if she had never left. For example, she was given 2 weeks vacation within the first year without first working for 12 months as a new employee would have to.

[3] The second issue is whether the two months award for Wallace damages ($8,826.56) can survive the decision of the Supreme Court of Canada in Honda Canada Inc. v. Keays, 2008 SCC 39, which was released following argument but before the reasons in this case were released by the trial judge. In our view, the appeal must be allowed on this ground. Although the appellant’s conduct in wrongfully alleging misconduct against the respondent was improper, any claim for punitive damages based on that conduct was abandoned before the trial. While the respondent’s misconduct in this respect could have led to a proper award of mental distress damages as defined in Keays, the mental distress that the respondent suffered upon her termination and the manner of that termination was not of the nature and scope to qualify for compensatory damages in accordance with that decision, as the respondent did not seek any medical attention, professional assistance or undergo any therapy for her mental distress.

[4] The third ground of appeal is based on the double counting of the Employment Standards Act severance payment of $20,240. By agreement of counsel, that amount will be removed from the total damages.

[5] In the result, the appeal is allowed in part, and the damages calculation (before the imposition of the $140,000 cap) will be reduced by $8,826.56 plus $20,240 with costs to the respondent of $8,000 inclusive of disbursements and G.S.T.

Signed: "K. Feldman J.A." "Robert P. Armstrong J.A." "Gloria J. Epstein J.A."