COURT OF APPEAL FOR ONTARIO

CITATION: Carter v. 1657593 Ontario Inc. (The Olde Angel Inn), 2015 ONCA 823

DATE: 20151127

DOCKET: C59744

Laskin, Pardu and Roberts JJ.A.

BETWEEN

Graham Carter

Respondent

and

1657593 Ontario Inc. (O/A “The Olde Angel Inn”)

Appellant

David House, for the appellant

Adam Stewart, for the appellant

Bradley Troup, for the respondent

Christopher Dilts, for the respondent

Heard and released orally: November 24, 2015

On appeal from the judgment of Justice J.A. Ramsay of the Ontario Superior Court of Justice, dated November 20, 2014.

ENDORSEMENT

[1] On this appeal, the appellant challenges only the trial judge’s finding that the respondent had adequately mitigated his damages arising out of a wrongful termination from his employment by the appellant.

[2] The trial judge found that the respondent made reasonable efforts to mitigate his damages and that the appellant failed to discharge his onus to demonstrate that he had failed to do so.

[3] The trial judge’s decision is well supported by the evidence at trial and is entitled to considerable deference on appeal. We see no reason to interfere.

[4] The respondent’s re-employment prospects were diminished. At termination, he was in his fifties, with limited education, and had worked for most of his adult life for one employer, the appellant. The appellant did not provide the respondent with a letter of reference; the respondent searched for new employment while under the cloud of his former employer’s accusations of theft and other wrongdoing.

[5] The respondent checked advertisements, submitted a résumé, and reached out to his contacts in the hospitality industry. The latter effort led to the best offer of employment that he received from the Colonel Butler Inn. This is consistent with the opinion of the appellant’s employment expert that most jobs are unadvertised.

[6] To mitigate his damages, the respondent was not obliged to accept employment that was not comparable to his employment with the appellant. The job with the Colonel Butler Inn was not comparable in status, hours, or remuneration. In the circumstances as the trial judge found, the respondent’s subsequent acceptance of the part-time job with the Sandtrap bar, with the hope of building up his Double Z bar business, was reasonable.

[7] There was no evidence of other employment opportunities available during the twenty-month notice period that would have been comparable to the respondent’s former employment with the appellant.

[8] The appellant’s expert was not prepared to opine about the respondent’s specific employment prospects, qualifying her general statement that he may very well have found a similar job, with her lack of knowledge about the respondent’s industry, and the difficulties that the respondent faced because it was an employer’s market, the respondent was looking for a job without a job, and he had been out of the job market for nineteen years.

[9] Finally, there is no basis to interfere with the trial judge’s decision not to attribute income from the Double Z bar business to the respondent. The trial judge was satisfied on the basis of the business’s financial statements, the deficiencies of which were known to and weighed by the trial judge, and the respondent’s evidence, that the bar was not generating enough revenue to pay him a salary.

[10] As a result, the appeal is dismissed.

[11] Costs to the respondent are set at $15,000 all inclusive.

“John Laskin J.A.”

“G. Pardu J.A.”

“L.B. Roberts J.A.”