COURT OF APPEAL FOR ONTARIO

CITATION: Bernier v. Nygard International Partnership, 2013 ONCA 780

DATE: 20131220

DOCKET: C57471

Juriansz, Hourigan and Benotto JJ.A.

BETWEEN

Diane Bernier

Plaintiff (Respondent)

and

Nygard International Partnership

Defendant (Appellant)

Barry Weintraub, for the appellant

Chris Foulon and Andrea Stoddart, for the respondents

Heard and released orally: December 12, 2013

On appeal from the judgment of Justice Edward M. Morgan of the Superior Court of Justice, dated July 4, 2013.

ENDORSEMENT

[1] Nygard International Partnership appeals the decision of Justice Morgan granting Diane Bernier summary judgment on a claim for wrongful dismissal.

[2] The appeal is dismissed for the following reasons.

[3] First, there was no error by the motion judge in finding that an alleged amending agreement to the respondent’s employment contract did not raise a genuine issue requiring a trial. The appellant failed to lead any direct or indirect evidence regarding the meeting where the amendment was allegedly discussed. Instead, it submitted an affidavit from an employee who was not present at that meeting and who could only speculate as to what transpired. We not do agree that the employee’s evidence regarding the appellant’s usual practice constituted evidence that the respondent received and agreed to the amended employment contract.

[4] Second, the awarding of 18 months’ pay in lieu of notice was within an acceptable range of notice periods given the relative seniority of the plaintiff and her specialized industry employment experience. Accordingly, there is no basis to interfere with that finding.

[5] Third, we find no error in the finding that the plaintiff was entitled to damages for her bonus for 2013. The bonus was an integral part of her total compensation package. Had the plaintiff been given proper notice, she would have been employed as at November 30, 2013. The appellant cannot disentitle the plaintiff to damages for the loss of her bonus by reason of its own breach. Calculation of the bonus could not have been performed in the usual manner given that 30% of its components were based on the plaintiff’s work performance. In these circumstances, the motion judge was entitled to average bonuses from prior years. The motion judge fulfilled his obligation to assess damages on the evidence before him and we see no error in how he proceeded. Thus we see no basis to admit fresh evidence after the fact to revisit his determination.

[6] Fourth, the imposition of a trust with respect to mitigation income was within the discretion of the motion judge. We are not satisfied that the decision to impose a trust was incorrect or that its imposition amounted to an injustice.

[7] The appeal is dismissed.

[8] Costs are payable by the appellant to the respondent fixed in the amount of $17,500.00 all inclusive.

“R.G. Juriansz J.A.”

“C.W. Hourigan J.A.”

“M.L. Benotto J.A.”