SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12470810

DATE: 20130830

RE: Diane Bernier, Plaintiff

– AND –

Nygard International Partnership, Defendant

BEFORE: E.M. Morgan J.

COUNSEL: Chris Foulon, for the Plaintiff

Barry Weintraub, for the Defendant

HEARD: July 11, 2013

SUPPLEMENTARY ENDORSEMENT

[1] The reasons for judgment in this matter were released on July 4, 2013. At paragraph 60 of those reasons, I outlined the damages awarded to the Plaintiff in the following terms:

The Defendant shall pay the Plaintiff an amount equal to 12 months’ worth of her total compensation (including base salary, bonus and benefits), plus another 6 months’ worth of her salary and benefits (including base salary and benefits, but excluding bonus), plus 5.5 months’ worth of interest on the late paid 2012 bonus at the Courts of Justice Act rate, minus the amounts that she has already been paid under the Act. I leave it to the parties to calculate the relevant amounts.

[2] I have received correspondence from counsel indicating that the parties have been unable to agree on the precise calculation of damages and, therefore, have been unable to settle the terms of the formal judgment. In response to counsels’ request to make further submissions on this point, I have now received written submissions from counsel for both parties.

[3] There are three points of disagreement between counsel: a) the question of the Plaintiff’s car allowance; b) whether there should be a net present value discount on the award to the Plaintiff; and c) the correct quantum of costs.

I. Car allowance

[4] Counsel for the Plaintiff has provided a draft judgment that calculates the pay in lieu of notice awarded to the Plaintiff by including her car allowance along with her monthly pay and other benefits. Counsel for the Defendant submits that the reasons for judgment did not contemplate the car allowance, as that was intended for reimbursement of expenses incurred during her employment as is not properly conceived as a “benefit”.

[5] Counsel for the Plaintiff points out that the Defendant paid the Plaintiff’s statutory notice and severance period for 21.3 weeks, and that during that time the Defendant included the car allowance in the Plaintiff’s payments.

[6] More to the point, in paragraph 6 of my reasons for judgment I found that the Plaintiff’s entire compensation amounted to $190,307.15 per annum, which is a calculation that includes the car allowance. Plaintiff’s counsel correctly submits that paragraph 60, quoted above, awarded the Plaintiff “an amount equal to 12 months’ worth of her total compensation”, and that this, in turn, must be calculated in reference to my earlier finding at paragraph 6. In other words, counsel for the Plaintiff is correct in including the car allowance in the calculation of the award.

II. Net present value discount

[7] Paragraph 2 of the draft judgment provided by counsel for the Plaintiff quantifies the 12 months’ worth of salary (net of benefits and car allowance, which are calculated in separate paragraphs) as $147,201.01. Counsel for the Defendant takes the position that since this amount is being paid now in lieu of future salary, it must be discounted in order to more accurately represent the net present value of the 12 months’ salary.

[8] Counsel for the Plaintiff responds that my reasons for judgment make no reference to any net present value discount, and since no such discount was contemplated none should be applied to the formal judgment. He also submits that pay in lieu of notice, such as that awarded to the Plaintiff, represents damages for wrongful dismissal and as a matter of law is payable immediately upon termination. It therefore is not properly conceived of as payment for a future debt.

[9] In Taylor v Brown (2004), 2004 39004 (ON CA), 73 OR (3d) 358, at para 15, the Ontario Court of Appeal quoted approvingly from the British Columbia Court of Appeal’s judgment in Dunlop v British Columbia Hudro and Power Authority (1988), 1988 3217 (BC CA), 32 BCLR (2d) 334, 338-9, where it was stated that, “payment in lieu of notice is seen as ‘an attempt to compensate for [the employer’s] breach of the contract of employment, not as an attempt to comply with an implied term of the contract of employment’”. In other words, unless specified it is conceived as a damages calculation based on the gross amount of the pay missed during the notice period, and not a discounted amount that is intended to somehow mirror the employment contract itself.

[10] As a confirmation of this state of the law, counsel for the Plaintiff submits that there appears to be no reported case in the employment law area where such a net present value discount has been applied to a Plaintiff’s award. In my view, no such discount should be applied here. Plaintiff’s counsel’s calculation of the overall salary amount in paragraph 2 of his draft judgment is correct.

III. Costs

[11] At paragraph 65 of my reasons of July 4, 2013, I awarded costs to the Plaintiff “in the total amount of $25,000, inclusive of disbursements and HST.” Counsel for the Defendant complains that in paragraph 9 of the draft judgment prepared by counsel for the Plaintiff, costs are set at $28,117.67, and that this represents an overpayment.

[12] Counsel for the Plaintiff explains that the award exceeds an offer to settle made by the Plaintiff, and so the costs award should be on a substantial rather than a partial indemnity basis. I have not actually seen a copy of that offer and do not know whether it was compliant with the requirements of Rule 49. In any case, I am exercising my discretion not to vary the costs award. It was fixed at $25,000 in my reasons for judgment of July 4^th, and shall remain so fixed.

IV. Disposition

[13] Attached as Schedule “A” to this supplementary endorsement is a marked-up version of the draft judgment provided by counsel for the Plaintiff. The first paragraph of the draft judgment is superfluous and can be eliminated. Paragraph 9 of the draft judgment must reflect the correct amount of costs. I have noted and initialed these changes.

[14] The judgment at Schedule “A”, with the noted changes, now reflects the proper terms of the formal judgment in this matter.

Morgan J.

Date: August 30, 2013