CITATION: Peticca v. Oracle Canada, 2015 ONSC 2584

COURT FILE NO.: CV-14-00509226

DATE: 20150420

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KRISTINE PETICCA, Plaintiff

AND:

ORACLE CANADA ULC, Defendant

BEFORE: F.L. Myers J.

COUNSEL: D. Lublin, for the Plaintiff

L. Cabel, for the Defendant

READ: April 17, 2015

ENDORSEMENT

[1] By oral reasons delivered on March 17, 2015, I awarded the plaintiff damages equivalent to 17 months’ salary in lieu of notice of dismissal. Only 10 months had passed since the termination of the plaintiff’s employment. Hence seven months of the award represents damages to be incurred in future. The plaintiff’s entitlement to damages for that period would have been contingent upon the plaintiff being unsuccessful in her mitigation efforts during that period. To reflect the contingency of the plaintiff being re-employed during the next seven months, based on the evidence that was presented, I found that a 10% contingency deduction was appropriate.

[2] The parties have asked for clarification over what exactly I have found is to be reduced by 10% - the entire notice period or just the contingent future loss. I do not find the precedents helpful in this case as the judges generally do not discuss precisely how they arrive at their math. It would have been open to me to express the deduction as a reduction of the entire damages or just those associated with the future period provided that the amount of the deduction in either case correctly recognized that the contingency for which a deduction was being made related only to the likelihood of future mitigation after the date of judgment. The same amount can be expressed as a percentage reduction in a 17 month period or a larger percentage deduction of a 7 month period. The amount that is to be decreased in either case is just the damages related to the future (post-judgment) period.

[3] It was my intention in this case that it was only that seven month future loss that would be subject to the 10% deduction. The plaintiff had a 100% likelihood of suffering the damages that she suffered up to the date of the hearing. No deduction applies to those damages. The only contingency that I considered was the likelihood of her finding a job in next seven months and it seemed to me that there was only a 10% chance that she would do so. Once the dollar amount is calculated for 10% of seven months, I suppose one could go back and figure out what percentage could be applied to the full 17 month period to yield that amount and then express the contingency deduction as a percentage of the entire period. I do not see any utility in doing so however.

F.L. Myers J.

Date: April 20, 2015