COURT FILE NO.: 10-48138
DATE: 20140812
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARGUS VIST, Plaintiff
AND
BEST THERATRONICS LTD, Defendant
BEFORE: Justice Jennifer Blishen
COUNSEL: Christopher Rutherford, Counsel for the Plaintiff
Siobhan M. O’Brien, Counsel for the Defendant
HEARD: by written submissions
ADDITIONAL REASONS FOR JUDGMENT
Introduction
[1] In my Reasons for Judgment dated May 29, 2014 on the above matter I found six months to be reasonable notice for termination and requested that counsel calculate:
(a) the precise amount of damages for wrongful dismissal based on six months pay in lieu of reasonable notice of dismissal and severance pay, less the income earned as of September, 2009 at RBR;
(b) the amount of damages for loss of pension contributions during the six month reasonable notice period; and
(c) the amount of pre and post-judgment interest.
[2] The parties have provided written submissions and agree on:
(a) wrongful dismissal damages of $22,602.63;
(b) loss of pension contributions in the amount of $2,321.66;
(c) that pre-judgment interest should be calculated from June 17, 2009;
(d) that pre-judgment interest should be calculated on the whole of damages; and
(e) on the method of calculating interest on the amount owing.
[3] The dispute between the parties is as to the applicable interest rate to be applied.
Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”)
[4] The applicable sections of the CJA are as follows:
127(1) In this section and in sections 128 and 129, “prejudgment interest rate” means the bank rate at the end of the first day of the last month of the quarter preceding the quarter in which the proceeding was commenced, rounded to the nearest tenth of a percentage point; (“taux d’intérêt antérieur au jugement”).
127(2) After the first day of the last month of each quarter, a person designated by the Deputy Attorney General shall forthwith,
(a) determine the prejudgment and postjudgment interest rate for the next quarter; and
(b) publish in the prescribed manner a table showing the rate determined under clause (a) for the next quarter and the rates determined under clause (a) or under a predecessor of that clause for all the previous quarters during the preceding 10 years. 2006, c. 21, Sched. A, s. 18.
128(1) A person who is entitled to an order for the payment of money is entitled to claim and have included in the order an award of interest thereon at the prejudgment interest rate, calculated from the date the cause of action arose to the date of the order. R.S.O. 1990, c. C.43, s. 128 (1).
130(1) The court may, where it considers it just to do so, in respect of the whole or any part of the amount on which interest is payable under section 128 or 129,
(a) disallow interest under either section;
(b) allow interest at a rate higher or lower than that provided in either section;
(c) allow interest for a period other than that provided in either section.
130(2) For the purpose of subsection (1), the court shall take into account,
(b) the circumstances of the case.
Positions of the parties
[5] The plaintiff argues that the appropriate interest rate in this particular case is that of the quarter in which the claim arose which the parties agree is 1.3 per cent.
[6] The defendant takes the position that the appropriate interest rate to apply is that outlined under s. 127(1) of the CJA, the rate applicable when the claim was commenced, as there are no special circumstances in this case justifying a deviation from that rule. Accordingly, the appropriate interest rate to apply is that applicable when the claim was commenced which is 0.5 per cent.
Analysis
[7] In Chang v. Simplex Textiles Ltd., [1985] 7 O.A.C. 137 the Ontario Court of Appeal states the following at para. 16:
In our view the basis of the exercise of the trial Judge’s discretion is not difficult to see. While this was not a liquidated claim (see Judicature Act, s. 36(3)(b)(i)) as appears to have been suggested on behalf of the respondent, it clearly relates to moneys that the plaintiff would have received beginning in March of 1979 had there been no breach by the defendant. The award, therefore, has a logical basis and is in general accord with similar but not identical dispositions in other unjust dismissal cases.
[8] The court concludes at para. 17:
It appears to us that the trial Judge’s disposition respecting interest, having regard to the nature of the claim, is more just than an award based on the basic rule and accordingly we are not persuaded that we should interfere with this part of the judgment.
[9] Based on the circumstances of this case I agree with the plaintiff’s submissions that it is just to allow a different interest rate than that outlined under Rule 127(1). I find in this case that the average interest rate, appropriately calculated by the plaintiff to be 1.11 per cent, is fair and just considering all the circumstances for the following reasons:
(1) As noted by the plaintiff, the interest rate more than doubles when comparing the rate on the date on which the claim was issued with the rate on the date on which the cause of action arose;
(2) The interest rate, during the 21 quarters in which pre-judgment interest is tracked from the date the cause of action arose to the date of judgment, was 1.3 per cent. As noted by the plaintiff this was for 15 of 21 quarters; and
(3) An averaging of interest, again, as noted by the plaintiff, permits compensation to him as if he had damages paid to him on termination. This I find to be a fair result.
[10] Therefore, using the 1.11 per cent average interest rate, I find pre-judgment interest in the amount of $1,370.41 payable on the whole quantum of damages from June 17, 2009 to the date of judgment.
[11] The total therefore owing to Mr. Vist is as follows:
Wrongful dismissal damages
$22,602.63
Pension loss damages
2,321.66
Total:
24,924.29
Plus pre-judgment interest @ 1.11 %
1,370.41
Plus post-judgment interest @ 3 %
Justice Jennifer Blishen
Date: August 12, 2014
COURT FILE NO.: 10-48138
DATE: 20140812
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MARGUS VIST, Plaintiff
AND
BEST THERATRONICS LTD, Defendant
BEFORE: Justice Jennifer Blishen
COUNSEL: Christopher Rutherford, Counsel for the Plaintiff
Siobhan M. O’Brien, Counsel for the Defendant
ADDITIONAL REAONS FOR JUDGMENT
Justice Jennifer Blishen
Released: August 12, 2014