Simmons v. Webb, 2010 ONCA 584

CITATION: Simmons v. Webb, 2010 ONCA 584

DATE: 20100913

DOCKET: C49901

COURT OF APPEAL FOR ONTARIO

Goudge, Cronk and Armstrong JJ.A.

BETWEEN

Lawrence John Simmons and Anchordale Holdings Limited

Plaintiffs (Respondents in Appeal)

and

Walter Webb, Daniel Van Houtte and Simmons Group Realty Consulting Inc.

Defendants (Appellants)

Michel Castillo, for the appellants

C. Fred MacKewn, for the respondents

Heard: September 7, 2010

On appeal from the judgment of Justice R. Pomerance of the Superior Court of Justice, dated December 15, 2008.

ENDORSEMENT

[1] There are two issues on this appeal, both of which relate to the quantification of general damages awarded by the trial judge to the respondent, Lawrence John Simmons, for wrongful dismissal.

[2] The appellants argue first, that disability benefit payments received by Mr. Simmons during the 24-month notice of termination period should have been deducted from the damages award. We disagree.

[3] There was no evidence in this case establishing that the disability policy at issue was not privately-placed insurance, obtained and paid for by Mr. Simmons. On the contrary, the available circumstantial evidence suggests that it was privately-placed insurance.

[4] In particular, the employment termination letter received by Mr. Simmons does not refer to the policy in question. Rather, it refers to separate disability insurance benefits, available through Mr. Simmons’ employer and from a different insurer. According to the termination letter, these benefits ceased immediately on the termination of Mr. Simmons’ employment. Further, all dealings with the insurer regarding the disability policy at issue were between the insurer and Mr. Simmons and payments made under the policy were received by Mr. Simmons directly.

[5] On this record, therefore, we are unable to conclude that the parties intended that Mr. Simmons be precluded from receiving the disability benefit payments at issue. See Sylvester v. British Columbia (1997), 353 (S.C.C.), at paras. 12 and 20; Sills v. Children’s Aid Society of Belleville (City) (2001), 8524 (ON C.A.), at paras. 43‑45.

[6] This ground of appeal fails.

[7] The appellants next argue that the gross sales generated by Mr. Simmons in his new real estate brokerage and appraisal business during the two years following the termination of his employment should similarly have been deducted from the general damages award. The trial judge did not expressly address this issue.

[8] The appellants acknowledge that the relevant financial statements for Mr. Simmons’ business list a series of expenses that substantially reduced the gross sales realized in the two pertinent years. We have been pointed to no evidence at trial – expert or otherwise – challenging the legitimacy of these expenses. It is important to note that Mr. Simmons’ company was itself a party to this litigation. There was no attack at trial on its financial statements or on the net income figures set out in those statements. Nor does the distinction between gross sales and net income, or any accounting implications of that distinction, appear to have figured in the evidence or to have been the subject of argument before the trial judge.

[9] Consequently, there is no evidential foundation to anchor the deduction of the gross sales from the general damages award.

[10] There is no dispute, however, that Mr. Simmons did earn aggregate net income in the amount of $7,439 during the two years in question, notwithstanding what the trial judge found were attempts by the appellants to impede his mitigation efforts. In our view, the amount of this admitted net income should have been deducted from the general damages award.

[11] For the reasons given, the appeal is allowed in part. The sum of $7,439 shall be deducted from the $98,928 general damages award. In all other respects, the appeal is dismissed.

[12] The respondents achieved almost total success on this appeal. In our view, they are entitled to some of their costs of the appeal, which we fix in the total amount of $10,000, inclusive of disbursements and applicable taxes.

“Stephen Goudge J.A.”

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”