SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-08-367470
DATE: 20120305

RE: Washington Olivares, Plaintiff

AND:
Canac Kitchens, A Division of Kohler Ltd., Defendant

BEFORE: Lederman J.

COUNSEL:
Allison Greene , for the Plaintiff

Geoff Moysa , for the Defendant

HEARD: Written Submissions

ENDORSEMENT

[ 1 ] Summary judgment was given in this matter on January 18, 2012. The parties were invited to agree upon the calculation of damages based on the decision. Although the parties agree that the plaintiff Washington must give credit for the amount that he was able to earn in mitigation of his damages during the period of January 28, 2009 to January 27, 2010, there is a disagreement as to whether Washington’s gross revenue or net income should be deducted.

[ 2 ] The defendant, Canac submits that based on the affidavit material submitted by the plaintiff on the motion, Canac was led to believe that the mitigation was to be based on gross earnings. There was nothing in the plaintiff’s affidavit or indeed the plaintiff’s factum or oral argument to suggest the plaintiff’s net mitigation income should be deducted rather than his gross mitigation income. The only amounts submitted by the plaintiff were gross income figures as mitigation earnings.

[ 3 ] The defendant, Canac, submits that a request to clarify a judgment does not include the alteration of an assessment of damages awarded in the judgment which would require additional specific findings of fact and law. It submits that the plaintiff should not be permitted to even reopen this issue. In the alternative, it submits that the issue should be dealt with by way of a formal motion as contemplated by Rule 59.06(1) with supporting evidence.

[ 4 ] I agree with Canac’s position. The issues of whether the plaintiff should only deduct net income and the quantum of such net income are questions of fact and law that were not advanced or argued in the original motion.

[ 5 ] The potential difference in the award resulting from this argument is substantial. It would amount to a difference of approximately $20,000.00.

[ 6 ] Canac should be given the opportunity to submit that mitigation should be based on gross revenue and in any event, should be entitled to challenge the expenses allegedly incurred by the plaintiff in order to assess their reasonableness.

[ 7 ] The parties will be allowed to reopen this issue. The plaintiff is to deliver motion material in support of its position and provide production of relevant documents in connection therewith and Canac will have the opportunity to cross examine thereon.

[ 8 ] As I am seized with this matter, the parties should deal with the motions court office and try to reschedule the motion returnable before me during the week of April 2, 2012.

LEDERMAN J.

Date: March 5, 2012