Court of Appeal for Ontario

CITATION: McLean v. Raywal Limited Partnership, 2013 ONCA 312

DATE: 202130509

DOCKET: C54872

Rosenberg, Rouleau and Pepall JJ.A.

BETWEEN

Natalie McLean

Plaintiff (Respondent)

and

The Raywal Limited Partnership and 2037629 Ontario Inc.

Defendants (Appellants)

Ronald J. Robinson, for the appellants

Kevin Fox, for the respondent

Heard: May 9, 2013

On appeal from the judgment of Justice Kevin Whitaker of the Superior Court of Justice, dated December 9, 2011.

APPEAL BOOK ENDORSEMENT

[1] The finding that there was no consideration was a finding of fact. We have not been persuaded that there was any palpable or overriding error.

[2] However, we do agree with the appellant that the trial judge erred in respect of mitigation. On-going litigation is only one factor to be considered in refusing to accept a return to work. There was nothing else on the record that would justify the respondent’s refusal to accept the recall. There was no evidence of a poisoned work place or anything of that nature.

[3] Promissory estoppel was not raised at trial and so the necessary findings were never made by the trial judge. We would not permit the appellant to raise that issue for the first time on appeal.

[4] Accordingly, the appeal is allowed in part and the notice period reduced to 8 months. The respondent is entitled to her costs of the appeal fixed at $6000 inclusive of HST and disbursements.