Court File and Parties

CITATION: O'Sullivan v. Cavalier Tool & Manufacturing Ltd., 2011 ONCA 480

DATE: 20110627

DOCKET: C52740

COURT OF APPEAL FOR ONTARIO

BEFORE: Goudge, Juriansz and MacFarland JJ.A.

BETWEEN

Dan O’Sullivan

Plaintiff (Respondent)

and

Cavalier Tool & Manufacturing Ltd.

Defendant (Appellant)

COUNSEL:

David McNevin and Tracy Bergeron-Lucha, for the appellant

Samuel Mossman, for the respondent

HEARD: June 24, 2011

On appeal from the judgment of Justice Dougald R. McDermid of the Superior Court of Justice, dated July 9, 2010.

APPEAL BOOK ENDORSEMENT

[1] The appellant raises three issues. First, it says the trial judge erred in finding constructive dismissal. We do not agree. The trial judge made clear findings of fact for which there was evidence that the appellant unilaterally and fundamentally changed the respondent’s terms of employment. That constitutes breach of contract. The fact that implementation never occurred is irrelevant.

[2] Second, the appellant says the trial judge erred in finding that it was not unreasonable for the respondent to refuse to return after his termination in the circumstances here. Again we disagree. It is conceded that the proper legal principle was applied by the trial judge. In our view, there was ample evidence to support the conclusion that the appellant’s treatment of the respondent made it objectively unreasonable for him to accept the return to the same small employer that he had lost faith in.

[3] Lastly, the appellant contests the damages awarded. However we cannot say the trial judge fixed an amount that is unwarranted given the Bardal factors at play here, particularly the respondent’s age, his length of service, his position and his difficulty in finding other work.

[4] The appeal is dismissed. Costs to the respondent on a partial indemnity basis fixed at $7,000 inclusive of disbursements and applicable taxes.

“S.T. Goudge J.A.”