SUPERIOR COURT OF JUSTICE – ONTARIO

Carter v. 1657593 Ontario Inc., CITATION: 2014 ONSC 6761

COURT FILE NO.: CV-12-53568

DATE: 2014-11-21

RE: Graham Carter, plaintiff

AND: 1657593 Ontario Inc., defendant

BEFORE: Mr Justice Ramsay

COUNSEL: Ms. G. Fahy for the plaintiff; Mr David House for the defendant

HEARD: November 14, 17-20, 2014

ENDORSEMENT

[1] The plaintiff is suing for wrongful dismissal.

[2] The plaintiff worked as a waiter, bartender and finally senior shift manager at a hotel, restaurant and bar called the Olde Angel Inn in Niagara-on-the-Lake from 1992 to 2011. In 2005 the defendant, a corporation owned by Barry Williams and Nancy Penman, bought the place. It is agreed that by virtue of section 9 of the Employment Standards Act the plaintiff’s years of service go back to 1992 for our purposes, or about nineteen and a half years. At the time of the plaintiff’s termination in the summer of 2011 Mr Williams was working in England and keeping regular contact with Ms Penman by telephone. Ms Penman was actively managing the Inn, with the plaintiff’s help.

[3] In 2008 defendant promoted the plaintiff to senior night supervisor in a written offer of employment which he accepted. His annual salary was $45,000.

[4] The written offer contained the following:

… Nancy and I feel strongly that the Olde Angel Inn needs to have senior representation at key times, certainly through the spring, summer and fall.

You are a world class bar operative and we would like to offer you the opportunity to join us as part of the senior management team in a world class establishment.

The role will be Senior Shift Manager …

Graham, you are a “brick” at the Angel. This role is something that I think you aspire to and will help us all enjoy the Angel, assist in its growth and follow the example established with Peter and Diane by ensuring the Angel remains a most special place on the planet.

[5] The plaintiff’s responsibilities are listed. They have to do with running the bar, inventory control, supervision of staff and marketing. Following are the pertinent specifics:

4. Ensure the efficient and effectiveness of the bar staff …

5. Participate in inventory management for kegs, bottled beer, wine, bottle and keg returns

6. Ordering of kegs, bottled beer, wine and liquor

7. Vigilant and observant with staff referencing controls for cash and against theft

8. Staff management – ensuring staff arrive on time, ensuring that no staff member is bullied or intimidated, advise on efficiency of service, log any accidents or staff issues that need addressing.

[6] The Olde Angel Inn dates back to the days of the War of 1812. It consists of a few rooms for guests upstairs, and two dining rooms and a bar downstairs. Total seating capacity downstairs is about 80 in the bar, 30 in the large dining room and 24 in the small dining room. The Inn is located in the tourist core of the old capital. It also has local regulars, who sit at table 16.

[7] On August 31, 2011, the plaintiff bought a half interest in a bar on Dawson Street, which runs east from Dorchester Road between the 420 and Morrison Street in Niagara Falls. His partner was his old friend, a former employee of the Old Angel named Sutton. This bar, the Double Z, later re-named Sudzz, had a seating capacity of 40 and catered to a working class neighbourhood crowd. It had a kitchen that served bar food. Barry Williams, the defendant’s principal, agreed in testimony that the Double Z did not compete with the Old Angel. I do not think that the tourists who frequent Niagara-on-the-Lake would go to Dawson Street for a drink. Neither would the Niagara-on-the-Lake locals.

[8] The plaintiff testified that he saw the Double Z as an investment. He was the silent partner. Sutton and the present staff of the Double Z would run it. He wanted to continue his employment at the Olde Angel Inn for some time, and he saw no reason why he could not manage both engagements.

[9] According to cell phone records the plaintiff called Barry Williams on Friday September 2, 2011 at 10:57 am. Mr Williams was in England at the time, so he would have got the call at 3:57 pm British Summer Time. The plaintiff testified that he told Barry that he had bought this bar, but that he would still be able to work full-time at the Angel. Mr Williams congratulated him. Later that day the plaintiff told Nancy Penman in person. Her reaction was negative.

[10] Mr Williams testified that when he got the news from the plaintiff, he had some concerns. First, this was a busy time of year and Ms Penman was under pressure from the provincial and federal governments, who had been conducting three tax audits. Mr Williams was afraid that being in charge of inventory for two bars would put the plaintiff in a position where he might be tempted to steal, although he is not saying that he ever did. Mr Williams was also concerned that the plaintiff might use his relationships with sales representatives of the Angel’s suppliers to get discounts for the Double Z. Mr Williams did not explain how this would hurt the Angel. Mr Williams also thought that the lack of previous notice lacked courtesy. Finally he did not think that a man with young children could handle “both jobs.” Among all these concerns, he stressed the impact upon Ms Penman, although at discovery he stresses the conflict of interest.

[11] Ms Penman testified that it was the plaintiff’s job to order beer every Monday, whether it was a holiday or not. If it was a holiday, he would leave the order by voice mail. The Brewers’ Retail trucks were loaded on Tuesdays. On the rare occasions when the plaintiff was absent on a Monday, Stephanie Penman would do the ordering.

[12] When the plaintiff told Nancy Penman that he had bought into a bar, she was concerned that he was in a conflict of interest because he would be ordering for two bars at once. He might get the benefit of the Angel’s discounts for volume. She thought her customers might go to Dawson Street for a drink. She also thought that he should be watching out for her interests exclusively, not telephoning John Sutton from her bar.

Abandonment of employment

[13] The defendants say that the plaintiff abandoned his employment in favour of working at the Double Z. A review of the events of the first week of September 2011 is therefore called for.

[14] The plaintiff worked his usual shift on Friday and Saturday evenings. He heard negative comments from Ms Penman through other staff, and this upset him. Mr Williams also spoke to Ms Penman and learned of her negative reaction.

[15] Sunday was the plaintiff’s day off. He visited the Double Z for the first time since the sale. He met the staff. He was still upset about Ms Penman’s reaction and he ended up drinking too much. Apparently it was way too much, because he has a memory blackout and his wife would not let him in the door of his own house. Sutton let him sleep over at his home. The plaintiff’s telephone records show that he telephoned Barry Williams in England at 10:59 pm EDT (3:59 am BST) for 1 minute, 12:05 am for 8 minutes, 12: 06 for 1 minute and 12:07 for 1 minute. I do not understand how he could make an 8-minute call at 12:05 and a 1-minute call at 12:06, but it does not matter. Mr Williams says remembers one call, about four o’clock in the morning, during which the plaintiff seemed not to be feeling well. He says the plaintiff was upset about the negative reaction and reiterated that he could handle both commitments. Mr Williams decided that in view of the hour and the plaintiff’s condition, further discussion should take place later.

[16] On Monday the plaintiff went back to the Double Z to get his car. He was hung over. He usually worked on Mondays. That is when he did his ordering. This being Labour Day, the suppliers would be closed so he decided to call the Angel and tell them that he was not feeling well. He was not feeling well – he was hung over. He said that he would not be in that day unless they really needed him. By now he had misplaced his cell phone, so he called on the landline from the Double Z. I accept his evidence that it was only the Brewers’ Retail order that had to be placed on Monday. I find that by calling in he was letting them know that someone else would have to do it. Nancy or Stephanie Penman could easily do it. Stephanie generally placed the order when the plaintiff was absent on a Monday. This is clear evidence that he had not abandoned his job. He was making sure that it was done.

[17] Ms Penman testified that she overheard this telephone conversation between the plaintiff and the receptionist. She saw the call display that said, “Double Z”. She said that the plaintiff said he was home in bed sick. The receptionist said, “You are not at home. You are at the Double Z,” and the plaintiff insisted that he was at home. I do not believe Ms Penman. The plaintiff had no reason to justify himself to the receptionist. I accept his version, that he said he was sick and he would not come in unless he was especially needed. I infer that the receptionist told Ms Penman that the plaintiff had called in sick from the Double Z and Ms Penman jumped to the conclusion that he had said he was at home and that he was not sick but was working.

[18] The plaintiff did not work Tuesday, Wednesday or Thursday. He testified that he understood that his employers wanted him to take a few days off to consider things. Mr Williams confirmed in his testimony that on Monday he telephoned the plaintiff at the Double Z and told him to take “a few days off” to consider things. Mr Williams testified that he was not expecting him at work on Tuesday or Wednesday, but he should have been there Thursday. I consider this expectation to be unreasonable in view of what he told the plaintiff. I thought that Mr Williams was generally a credible witness, but I do not accept his interpretation on this point. I find that the plaintiff’s absence from work from Monday September 5 to Friday September 9 was authorized.

[19] On Friday September 9 the plaintiff spoke to Mr Williams on the telephone. Mr Williams was coming home on Saturday. The plaintiff and Mr Williams agree that Mr Williams told the plaintiff to meet him on Sunday September 11. I take this as further authorization not to come to work until then.

[20] The plaintiff was expecting a friendly meeting, so he brought his wife and children. Mr Williams testified that on September 9 he told his lawyer what had happened and got the letter to deliver at the meeting. In view of the content of the letter, by now Mr Williams must have decided that the plaintiff was finished at the Angel. I do not believe that he was expecting further negotiations after delivery of the letter.

[21] At the meeting the plaintiff reiterated that he could handle both commitments. He suggested that if it turned out that he could not, they could address it when and if problems arose. Mr Williams presented him with a letter from his lawyer (not Mr House), dated September 9. The letter said the following:

As you know, you lied to our client when you recently called in sick this week. You were working at the Bar you just opened in Niagara Falls, called the Double Z. On too many occasions you have called the owner when intoxicated, most recently at 4:00 am in the morning, U.K. time. You have been absent from work without explanation. You have failed to supervise employees and disregarded our client’s business interests. As a whole these actions have damaged our client’s business. Our client now understands why you have failed to perform your employment duties. You have been busy setting up your new business. It was also disappointing that our client was the last to know.

You will no doubt be devoting all or your full time and attention to your new business. I am sure you can appreciate as a business owner that you would not want your manager to be a key employee and owner of another Bar in the Niagara tourist area. While this is a material breach of your employment duties even the potential for conflicts of interest to occur, is simply too great to ignore.

We have discussed the matter on a confidential basis with Ministry of Labour staff who also confirmed there are grounds for immediate termination. Although it is evident that you have already severed your employment relationship with our client we recommended, to avoid any uncertainty, that you be terminated forthwith. Against our advice, Mr Williams is prepared to not deliver a formal letter of termination directly from the Olde Angel Inn if you confirm, in writing, by signing the attached Release that you have ended your employment effective immediately. If you are not prepared to confirm same, then our client will provide a formal letter of termination for the reasons noted above.

Our client notes that had you not first materially breached your employment duties but rather indicated that you wanted to start up a competing Bar, Mr Williams would have been prepared to offer advice and guidance if same was requested. …

[22] The attachment was a resignation that included a release of all claims against the defendant, under seal.

[23] The defendant heard nothing further from the plaintiff. On September 17 Mr Williams went to the Double Z and got the Angel’s keys and credit card.

[24] In connection with the argument of abandonment, the defendant relies on the plaintiff’s absence from work from September 5 to 17, and a few telephone calls he made to the Double Z.

[25] I have already dealt with the absence from work between September 5 and 11. I cannot believe that the defendant is seriously arguing that the plaintiff abandoned his employment by not showing up for work on September 12. He had just been given a letter telling him to stay off the property. Mr Williams testified that his intent in giving the letter was to negotiate a change in terms of employment, perhaps to contract status. That cannot be so. The letter told the plaintiff that he was a liar, he was in a conflict of interest, he was to stay away from the premises and hand in his keys and credit card and that he would be fired unless he resigned and waived all claims for wrongful dismissal. A new contract position would have amounted to constructive dismissal anyway. I find that on September 11, 2011 the plaintiff was actually, not constructively, dismissed. He did not abandon his employment.

[26] The defendant also called Linda Byl, a receptionist who testified that on September 2, 2011 she saw the plaintiff greet two customers who were entering the restaurant by telling them that there was now a better place to go. This is said to be evidence that he abandoned his position. It is argued that in effect he was working for the Double Z while at the Angel that day. The plaintiff was not cross-examined on this overheard utterance. In reply evidence, he testified that he would not have directed anyone to the Double Z. Some regulars had heard about the purchase and asked him about it. He would have answered. I believe him. I think that Ms Byl misunderstood the import of the conversation. In any event, as Mr Williams recognized in his testimony, the Double Z was not in competition with the Angel.

Reasons given for termination

[27] The reasons given contemporaneously for termination, in summary, are that the plaintiff:

a. Called in sick when he was really working at Double Z;

b. Called his employer while intoxicated “on too many occasions”;

c. Was absent from work without explanation;

d. Failed to fulfil employment duties because he was setting up his own business;

e. Had a business that will take up his full attention and constitute a conflict of interest, without having given employer previous notice.

[28] These complaints can be readily dismissed:

a. The plaintiff was not working at Double Z when he called in sick. He was at Double Z, but he was sick and on his way home. He was not working. His decision to take the day off was also influenced by Ms Penman’s hostile reaction to the plaintiff’s news, which, understandably, upset him. There was no lie. His absence did not stop the beer from being ordered.

b. The plaintiff called his employer drunk in the middle of the night one occasion that the employer can recall. While annoying, this is hardly something for which you fire a 19-year employee. Indeed, Mr Williams did not seem to be upset about it.

c. The plaintiff’s absence from work the week of September 5 was authorized. It was Mr Williams’ idea, as he admitted.

d. The plaintiff did nothing to set up his own business before September 9, 2011 aside from negotiating the purchase and meeting his partner on his own time. He made a few short telephone calls from work. This did not interfere with his duties toward the Angel and he was within his rights to use the cell phone in his discretion as long as he did not ring up charges.

e. The business would not have taken up his full time. It had not taken him away from his duties at the Angel. There was no conflict of interest. No conflict of interest is pleaded. They were not competing bars. They had different clientele. If the plaintiff planned to use the services of the same sales representatives as he had at the Angel, it would not have affected the Angel’s business, even if the suppliers gave him a discount. I do not think that they necessarily would have, because the discount is based on volume of business. The Angel had the volume. The Double Z did not. The plaintiff tried to tell his employers that he planned to give them his full-time attention while Sutton ran the Double Z, but they would not believe him. Their past bad experience with Sutton and the call display that showed that the plaintiff was at the Double Z on Monday September 5 when he phoned in sick gave Ms Penman the excuse in her mind to set the termination in motion. The plaintiff had not neglected his duties and he was not in a conflict of interest.

[29] The defendant abandoned the argument that any of these things justified the dismissal. It relied instead on two other justifications, both of which were discovered after the plaintiff left. First, the plaintiff drank on the job and permitted other staff to drink on the job. Second, he failed to manage the inventory properly, which cost them significant money.

After-acquired cause – drinking on the job

[30] The evidence about drinking on the job comes from Peter Ault and Ms Penman’s daughter Stephanie.

[31] Stephanie Penman is now the day manager at the Angel. She testified that she started as a server around 2005. She worked on the night shift and reported to the plaintiff. During her time on the night shift the plaintiff drank on the job without paying for the drinks and allowed the other staff, including her, to drink for free. She did not tell her mother about it because she did not want to get into trouble.

[32] Peter Ault testified that on a few occasions when he was working the night shift as a server, the plaintiff permitted staff to drink on duty without paying, and to have more than the one drink after shift without paying. He never saw the plaintiff drink on duty.

[33] I do not believe either of them. They are both dependent on Ms Penman, and apt to say what she wants them to say. Drinking on the job has serious implications for a bar’s licence. Stephanie would not have risked her mother’s licence just so that she would not “get in trouble.” Drinking on the job was an issue at the Angel in the spring of 2011 when Sutton was fired. Stephanie and Mr Alt would have mentioned it then if Mr Carter had been a part of it and they had been of a mind to come clean.

[34] The plaintiff testified that he did not see employees drinking on the job or serving themselves without entering the amount in the cash register. He said they were not allowed to drink during the shift. They got one free drink after shift. If they wanted another, they could pay for it. The bar closed at 1 am but the licence allowed it to sell liquor until 2 am. I believe him.

[35] Stephanie Penman also testified that Mr Carter left the bar on occasion during working hours and that on one occasion he took a case of beer with him. I do not believe this, either.

[36] The dismissal of the plaintiff was not justified by anything having to do with employees drinking on the job.

After-acquired cause – inventory management

[37] The evidence of drinking on the job is related to the question of inventory management, but there is more to the latter ground for dismissal. In addition to the evidence about drinking on the job, the evidence about inventory management comes from Ms Penman, supported by the defendant’s business records. Based on purchases of liquor and revenues therefrom before and after the plaintiff left, the defendant pleaded that the plaintiff was “systematically” stealing from them and counterclaimed for $75,000 and punitive damages. In October 2014 the defendant gave notice that it would not pursue the counterclaim. Obviously the evidence falls far short of establishing any theft or fraud on the part of the plaintiff. The counterclaim has been re-worked as a claim of breach of contract by failing to discharge the duty to manage the inventory.

[38] After the plaintiff left, sales rose and the cost of product expressed as a percentage of sales declined. To my mind this does not likely reflect the performance of the plaintiff, much less misconduct by him. According to Mr Williams’ testimony, the plaintiff left at about the same time that federal and provincial tax audits were about to be completed. As a result of these audits, new controls were put into place in September 2011. Essentially, inventory was monitored more frequently and not only as it was coming in, but also as it was going out. That, according to Mr Williams, was why the relative cost of liquor declined, with the result that the profit margin increased. The evidence falls far short of establishing a link between the better profit margin and the plaintiff. During five of the 12 months ending September 1, 2011 Sutton was employed at the Angel. Ms Penman testified that she and Mr Williams fired him for stealing, and they did not know how much he stole. Sutton’s conduct could just as easily explain the difference in profit margin.

[39] The defendant points in particular to a document at tab 15 of Exhibit 1. This is a sales projection generated by the tax authorities. They take known purchases of product and allow an arbitrary amount for breakage and other loss fixed on an industry-wide standard. They determine the amount of liquor available for sale and how much tax that would have brought in. They then take the actual amount of liquor sold and tax paid. For example, in Tab 15, the government thought that the Angel should have sold $29,000 more shots of liquor and paid the tax on it. That does not prove that somebody stole $29,000 of liquor. Moreover, the free drink at the end of shift would account for part of it.

[40] The plaintiff denied stealing or misappropriating liquor. I believe him.

[41] In reply he testified that he was responsible for counting the stock and ordering the difference between the amount on hand and the amount that should be on hand for the week. He also consulted with Ms Penman before special events or busy periods to see if more stock should be ordered. When on shift, he was responsible to see that no one stole, or took or used inventory without properly recording it. That was the extent of his duties in this regard.

[42] What he says is consistent with the wording of the employment contract. The employment contract says that the plaintiff is to “participate” in inventory management. Ms Penman testified that the plaintiff understood from oral instructions that he was responsible for inventory management. I do not believe her. The contract used the word participate for a reason. The plaintiff participated in inventory management by doing the weekly count and making the orders. He also was required to supervise staff handling of inventory and money while he was on shift. But the overall management of inventory, including implementation of systems designed to control loss was Ms Penman’s responsibility. When she finally fulfilled that responsibility in September 2011, the situation improved.

[43] I conclude that the dismissal was not justified by anything having to do with management of inventory.

Damages

[44] I find that the plaintiff was dismissed without just cause. Given the responsibilities of the job, the job market, his years of service and his age at termination, I think he should have been given 20 months’ notice.

[45] The contract called for a salary of $45,000 a year or $3,750 a month. I fix damages at $75,000, subject to mitigation.

Mitigation

[46] As in all breach of contract cases, the innocent party must take reasonable steps to mitigate his damages. Any benefit derived from complying with the duty to mitigate must be deducted from damages. It is for the employer to prove that the plaintiff has not made reasonable efforts to obtain other employment: Michaels v. Red Deer College, 1975 15 (SCC), [1976] 2 SCR 324.

[47] It is agreed that for 11 months of the notice period, the plaintiff worked part-time for another bar called the Sandtrap. It opened on June 1, 2012. It is agreed that his earnings during that period should be calculated on the basis of $9101 a year, his T4 income, plus 20% for tips. That yields a total of $910 a month.

[48] The defendant submits that the plaintiff did not take reasonable steps to mitigate his loss. It is submitted that he should have done more to find work as a bartender, that he should have accepted a full time position that was offered to him at a bar called the Colonel Butler Inn and that he earned, or should have earned, money from the Double Z.

[49] The plaintiff called a handful of contacts and asked them to keep an ear out for jobs. This led to a job offer from the Colonel Butler Inn for April 1, 2012. The offer, dated March 30, 2012, was for employment as a senior bartender at Colonel Butler’s Inn. It offered $12.00 an hour, with a pension plan after 1 year, for a job as a supervisor and server, and small bonuses based on performance. It was similar to the job at the Angel, but with a relatively larger component of serving and smaller component of managing. The plaintiff thought that it was too much responsibility and too many hours for the rate of pay. He turned down the offer. In June 2012 he took a part-time position at a place called the Sandtrap for $10.00 an hour. This was less than Butler’s would have paid, but it gave him time to spend 22 hours a week at the Double Z.

[50] I note first that the plaintiff did not buy the Double Z to mitigate his loss of employment. He had bought it before he got fired. The question is really whether he should have cut his loss sooner by selling the Double Z and looking for full-time work as a bartender/supervisor.

[51] I do not think that the plaintiff actually earned money from the Double Z and I do not think that this was because he did not act reasonably to mitigate his loss. The plaintiff’s bookkeeping was not very good, but I have no reason to doubt the opinion of his accountant, who has been able to put together reports from sufficient existing records. Whatever the import of the discrepancies in the documents, it is clear that the plaintiff did not earn money from the Double Z.

[52] The plaintiff did not draw a paycheque from the Double Z because there was no money to draw. Sutton drew a paycheque, but the original deal called for that. The paycheque was really a repayment of his shareholder’s loan. Sutton was to be the active partner and the plaintiff the silent partner. Places like this take a certain time to become successful. The plaintiff was hoping to help get the Double Z to the point that he could draw money as a shareholder. It never got there. He sold it in 2014. It is not known whether he will get his investment back. The fact that the Double Z made very little profit during the first 24 months does not establish that it was poorly run. Peter Ault testified that in 2013 the plaintiff told him that he was concerned about Sutton drinking on the job at the Double Z. I do not believe him on this point, either.

[53] The defendant called Jacqueline Hammond as an expert witness. She is a very experienced and accomplished human resources expert. She has helped people find work in hospitality. Most of her career has involved finding employees to fill jobs. Because of her work for employers she understands very well what they are looking for.

[54] Ms Hammond testified that as a rule of thumb a person looking for a new job should expect the process to take about one month per $10,000 of income, or 4 months for a person in the $40,000 range. In her opinion the plaintiff might have found a job in such a period if he had used proper strategies. She gave a number of them. Specifically, he should have done a better resume, he should have pursued more contacts and pursued them with more follow-up, he should have used on-line and other resources and if he did not know how to do this, he could have found help for free by doing a simple Google search.

[55] Ms Hammond also testified that a senior person has to expect to start a new job for less money. For example a $50,000 a year manager might have to accept $35,000 a year (70% of former salary) to start with. Employers are more likely to hire someone with any job, as opposed to someone who has no job. As time goes on, the employee’s expectations of salary should go down.

[56] Ms Hammond has had no trouble finding employees for openings in hospitality in Niagara. I take it from her evidence that while the competition is not as great as it would be in Toronto, it is a competition for jobs, not a competition for employees. It is still an employer’s market.

[57] I think that Ms Hammond’s strategies are the best possible approach to finding a new job. They exceed the standard of reasonableness. The plaintiff did not know these strategies and he did not know how to get help. He resorted to what he knew – contacts. This is a reasonable approach, and consistent with Ms Hammond’s evidence that 80% of the job market is “hidden” – it consists of unadvertised openings. And in fact it worked. The plaintiff succeeded within 8 months, which is not too far outside Ms Hammond’s rule of thumb. I think that the Colonel Butler job was the best he could have got. If he acted unreasonably in refusing the job, his damages should be reduced by $2,500 a month for the months that he worked there during the notice period, based on salary and tips he could have earned. I am not satisfied that he would have met the performance goals required for bonuses.

[58] By refusing that job, did he fail to act reasonably to mitigate his damages?

[59] If he could have handled the job at the Angel while a silent partner at the Double Z, he could have handled the Colonel Butler job while a silent partner at Double Z. But the plaintiff did not think the Colonel Butler job was worth the money. He thought his time would be better spent actively working part-time at the Double Z, later with the part-time job at the Sand Trap to provide necessary support.

[60] I cannot say that this was unreasonable. As a result of the defendant’s actions the plaintiff was left in a difficult position. It is easy to say in hindsight that he should have cut his losses at the Double Z sooner and taken the Colonel Butler job. But given the relatively low pay and the lesser component of management, compared to the prospect of improving an investment that he had already made before he was fired by devoting more time to it, I cannot say that he acted unreasonably.

[61] I conclude that the damages should be reduced only by the amount earned from the Sandtrap during the notice period, which is $910 a month for 11 months, or $10,010.

Conclusion

[62] By subtracting $10,010 from $75,000, I arrive at $64,990. I give judgment to the plaintiff in that amount with pre-judgment interest from September 11, 2011.

J.A. Ramsay J.

Date: 2014-11-21