Court File and Parties

Court File No.: CV-19-001-00 Date: 2020 02 20

Ontario Superior Court of Justice

Between:

DAVID DEVLIN Chris Foulon, for the Plaintiff Plaintiff

- and -

HIGH LINER FOODS INCORPORATED Mark Tector, for the Defendant Defendant

Endorsement

D.E HARRIS J.

[1] Counsel for the plaintiff has written a letter to me complaining that a mistake was made in my judgment dated November 29, 2019. Counsel for the defendant has responded by letter, disagreeing with the plaintiff but raising a complaint of his own.

[2] Both counsel are experienced and senior at the bar. One would expect that if there were complaints with reference to a final judgment, they would understand that there is a proper procedure to be followed. That procedure is to file a motion with supporting materials.

[3] Nonetheless, I will treat the letters as motions for the purpose of expedience. The plaintiff takes the position that my judgment contains an obvious error. He says that there was an agreement between counsel with respect to damage for the loss of his client’s incentive package and that the judgment mistakenly failed to recognize and adhere to this agreement. Counsel for the defendant disputes that there was any such agreement.

[4] Rule 59.06(1) of the Rules of Civil Procedure allows amendment of an order for an “error arising from an accidental slip or omission.” In Millwright Regional Council of Ontario Pension Trust Fund (Trustees of) v. Celestica Inc., 2013 ONSC 1502, it was said:

30 Rule 59.06 (1) is designed to amend judgments containing a slip or error, errors which are clerical, mathematical or due to misadventure or oversight. The rule is designed to amend judgments containing a slip, not to set aside judgments resulting from a slip in judicial reasoning: Central Canada Travel Services v. Bank of Montreal, [1986] O.J. No. 1249 (Ont. H.C.) at para. 21; Dhaliwal v. Plantus, [2007] O.J. No. 5450 (Ont. S.C.J.) at para. 4. Rule 59.06 (1) is not designed to be a disguised means to review errors in the making of the Reasons for Decision; rather, it is designed to correct errors in memorializing the Reasons into a formal order or judgment.

[5] The judgment in the case at hand, in deciding the issue of the loss of the incentive bonus, reasoned through the issue in considerable detail (see paras. 22-32). On the face of it, it is evident that if an error was made, it is not of a clerical nature falling within Section 59.06(1).

[6] Furthermore, clearly there was no agreement between counsel. The defendant’s primary position was that no incentive bonus award ought to be paid. The fall back position was that there should be no bonus for 2018 but only for completed calendar years based on the three year average bonus going back from 2017. This does not suggest, contrary to the plaintiff, an agreement between counsel. Although it could be said that it was a limited concession on behalf of the defendant, it was a concession which the court was free to reject if it found, as it did, that it was wanting.

[7] Lastly, the defendant says that if it is found there is jurisdiction to review the bonus award, then there was also an error made in the judgment with respect to the plaintiff’s duty to mitigate. The judgment found that although it took the plaintiff too long to get back on his feet to look for another job, it would not have mattered as it was quite clear based on the efforts he subsequently made that he would not have found a job in any case.

[8] After invoking the strictly circumscribed nature of Rule 59.06 (1) jurisdiction to counter the plaintiff’s motion, the defendant has made its own attempt of a very similar nature. It too runs head long into the identical jurisdictional impediment.

[9] The plaintiff’s motion is dismissed.

D.E HARRIS J.

Released: February 20, 2020