COURT OF APPEAL FOR ONTARIO

CITATION: Loyst v. Chatten's Better Hearing Service, 2013 ONCA 781

DATE: 20131220

DOCKET: C55561

Doherty, Sharpe and MacFarland JJ.A.

Dawn Loyst

Plaintiff (Respondent)

and

Chatten’s Better Hearing Service

Defendant (Appellant)

Gordon A. Meiklejohn, for the defendant (appellant)

Yan David Payne and Andrew D. Pelletier, for the plaintiff (respondent)

Heard and released orally: December 19, 2013

On appeal from the judgment entered by Justice T. McEwen of the Superior Court of Justice, dated May 7, 2012.

ENDORSEMENT

[1] The style of cause is changed on consent to describe the appellant as Chatten Enterprises Limited.

[2] The trial judge found that the appellant terminated the respondent’s employment when she refused to agree to the significant unilateral changes in her employment proposed by the respondent (see para. 27). We see no basis upon which we can interfere with this finding of fact.

[3] Given that finding of fact, the appellant’s argument that the respondent did not mitigate her damages by staying in her employment under the new terms proposed by the appellant cannot succeed. Put simply, the appellant took that option away when he terminated the respondent’s employment.

[4] The trial judge awarded damages based on the amount the appellant had agreed to pay the respondent in the written contract governing the employment. The amendment to that agreement did not alter the amount the respondent had agreed to pay, although it did provide that the payments would be made directly to the respondent and not as was previously the case to her company. The fact that the respondent was no longer obligated to pay GST under the revised agreement, did not in our view affect the amount the appellant had agreed to pay to the respondent. The trial judge properly calculated damages based on that amount.

[5] The appellant also argues that the trial judge should have calculated the value of the 15 percent ownership interest owed to the respondent by applying the agreed upon formula as of the date of the end of the five-year contract as opposed to as of the date of the contract. While there may be merit to this argument on the language of the agreement, we are satisfied that the trial judge proceeded as he did because of the positions taken by the parties before him. We are not prepared to interfere with the trial judge’s assessment based on the different position that is advanced here. We especially refuse to do so, given the absence of any evidence at trial quantifying the claim based on the approach proposed by the appellant on appeal.

[6] The appeal is dismissed.

[7] In the absence of any cross-appeal, we are not prepared to entertain the respondent’s submissions that the award should be increased.

[8] The respondent is entitled to her costs of the appeal fixed at $15,000, inclusive of disbursements and relevant taxes.

“Doherty J.A.”

“Robert J. Sharpe J.A.”

“J. MacFarland J.A.”