COURT OF APPEAL FOR ONTARIO

CITATION: Chandran v. National Bank of Canada, 2012 ONCA 205

DATE: 20120327

DOCKET: C53757

MacPherson, LaForme JJ.A., and Pattillo J. (ad hoc)

BETWEEN

Adrian Chandran

Plaintiff (Respondent)

and

National Bank of Canada

Defendant (Appellant)

Malcolm Mackillop and Hendrik Nieuwland, for the appellant

William Gale, for the respondent

Heard and released orally: March 23, 2012

On appeal from the judgment of Justice Pollak of the Superior Court of Justice, dated April 26, 2011.

ENDORSEMENT

[1] The appellant National Bank of Canada (the “bank”) appeals the judgment of Pollak J. of the Superior Court of Justice dated April 26, 2011, awarding the respondent Adrian Chandran (“Chandran”) damages for constructive dismissal of $131,226.59 and costs of $85,894.64.

[2] Chandran was employed by the Bank for 18 years. He was promoted several times and by August 2007 he was a senior manager, which included the responsibility of supervising 11 employees.

[3] In August 2007, the bank conducted a survey of the employees in Chandran’s office. Nine of the 11 employees complained about Chandran, saying that he made condescending remarks, embarrassed employees in front of others, and engaged in bullying behaviour.

[4] After a meeting with Chandran to discuss the employee complaints, the bank sent him a disciplinary letter setting out the behaviour that provoked the complaints, informing him that he would be relieved of his supervisory duties, and providing him with two possible reassignment options (same salary and level, but without supervisory responsibilities). The letter ended:

As mentioned in our discussion, we wish to reiterate that disrespectful treatment of employees and colleagues must cease immediately and you are not to take part in any actions that may be seen or perceived to be retribution by the employees who raised their concerns to us. You must know that further behaviour of this type will result in termination of employment for cause. Please note that no other warnings will be issued on this matter.

[5] Chandran did not accept either offer. He left the bank and after 14 months found employment with another bank.

[6] Chandran brought an action against the bank for wrongful dismissal. The trial judge found that Chandran was constructively dismissed and that he was not required to mitigate his damages by accepting one of the positions offered by the bank. She fixed the notice period at 14 months and awarded damages of $131,226.59.

[7] Initially, the trial judge fixed costs at $65,833.35. After taking into account offers to settle, she increased the costs award to $85,894.64.

[8] The bank does not appeal the finding that it constructively dismissed Chandran.

[9] The bank contends that the trial judge erred by concluding that Chandran was not required to mitigate his damages by accepting one of the positions offered by the bank.

[10] We disagree. The leading case dealing with an employee’s duty to accept a different position with his employer to mitigate his damages after being terminated from another position is Evans v. Teamsters, Local 31, 2008 SCC 20. In Evans, Bastarache J. stated that a finding by a trial judge that an employer did not meet its burden of proving that a dismissed employee should have accepted an offer of re-employment is a finding of mixed fact and law and is, therefore, subject to appellate intervention only if there is a palpable and overriding error in the trial judge’s finding.

[11] The bank cannot clear this high hurdle in this appeal. The trial judge considered the factors relevant to mitigation enumerated in Evans. She held that the factors that gave rise to the constructive dismissal (a finding, we note, that the bank does not appeal) – the imposition of “serious discipline” on Chandran and the serious findings of misconduct – led her to conclude that, viewed objectively as required by Evans, Chandran would have been subjected to, again as per Evans, “an atmosphere of embarrassment or humiliation” as well as a real fragility in his continuing employment with the bank. Accordingly, it simply cannot be said that the trial judge’s ultimate conclusion that Chandran “did not therefore have a positive duty to accept the offers” amounts to a palpable and overriding error.

[12] The bank also appeals the costs award on two bases.

[13] First, the bank asserts that the trial judge ordered partial indemnity costs of $65,833.35 without allowing for submissions from the bank.

[14] We do not accept this submission. The bank received Chandran’s costs submissions and chose not to say anything about either the hours worked or rates billed on behalf of Chandran at the trial. Indeed, in its appeal factum the bank states: “The Bank took no issue with the hours spent and hourly rates in Chandran’s costs outline and therefore made no comment.”

[15] Second, the bank contends that the ultimate award of $85,894.64 is not proportional and is outside the reasonable expectations of the bank.

[16] We disagree. Having not challenged the legal work that generated the initial costs award of $65,833.35, the bank is in no position to challenge the extra $20,000 that flows almost entirely from the trial judge’s consideration of offers to settle.

[17] The appeal is dismissed. The respondent is entitled to costs fixed at $22,600 inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“H.S. LaForme J.A.”

“L.A. Pattillo J. (ad hoc)”