Court File and Parties

Court File No.: CV-09-4749
Date: October 6, 2014

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kerry McCarthy, Plaintiff

AND

Motion Industries (Canada) Inc., Defendant

BEFORE: The Honourable Mr. Justice Martin James

COUNSEL: Eric O. Gionet, Counsel, for the Plaintiff

Rahool Agarwal, Counsel for the Defendant

HEARD: Written Submissions

Supplementary Endorsement

James J.

[1] In March 2014 I released reasons for decision in this action.

[2] Subsequently I received written submissions from counsel for both parties on the issue of “other commissions” for the sixteen month notice period awarded at trial.

[3] At paragraph 70 of the reasons, I recite that “counsel for both parties looked to the commissions that the plaintiff would have earned had his employment not come to an end as a means of determining his income during the notice period.” Also at paragraph 70 of the reasons, a chart is reproduced that sets out these commissions and that forms the basis of the damages award.

[4] At paragraph 80 of the reasons the plaintiff was awarded sixteen months compensatory damages commencing October 2009. The notice period runs from October 2009 to January, 2011.

[5] Commissions earned prior to October 2009 are not relevant to the damages award which is informed by the evidence of what income the plaintiff would have received during the period October 2009 to January 2011 as disclosed by the chart.

[6] I do not recall evidence as to the value of “other commissions” that would have been payable to the plaintiff during the period running from October 2009 to January 2011.

[7] If I am mistaken and there was evidence adduced as to other commissions to which the plaintiff would have been entitled during the period October 2009 to January 2011, I am prepared to received further submissions on that point.

Mr. Justice Martin James

DATE RELEASED: October 6, 2014

COURT FILE NO.: CV-09-4749

DATE: October 6, 2014

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Kerry McCarthy, Plaintiff

AND

Motion Industries (Canada) Inc., Defendant

BEFORE: The Honourable Mr. Justice Martin James

COUNSEL: Eric O. Gionet, Counsel, for the Plaintiff

Rahol Agarwal, for the Defendant

SUPPLEMENTARY ENDORSEMENT

James, J.

Released: October 6, 2014