COURT FILE NO.: CV-19-00624762

DATE: 20210318

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RODRIGO MENEZES, Plaintiff

AND:

STERLING RENOVATIONS & DEVELOPMENT CORP, Defendant

BEFORE: Myers, J.

COUNSEL: Kevin Wisnicki and Walter S. Yoo, Counsel, for the Plaintiff

No one appearing for the Defendant

READ: March 18, 2021

ENDORSEMENT

Relief Requested

[1] Default Judgment

Disposition

[2] The defendant is liable to pay the plaintiff damages of $41,240 plus $247,921.94 plus $10,000 as set out below Prejudgment and postjudgment interest are both payable in accordance with the CJA.

Costs

[3] Costs on a partial indemnity basis, fixed at $15,000 are payable by defendant to plaintiff within 30 days.

Brief Reasons

[4] The statement of claim was served on the defendant. The principal of the defendant engaged in email correspondence with the plaintiff’s counsel. I have no doubt that the defendant was aware of this lawsuit and chose not to participate.

[5] The defendant has been noted in default and is therefore deemed to admit the allegations contained in the statement of claim. The plaintiff concedes that he agreed to a salary of $55,000 per year. In addition, he was entitled to 50% of the profits of the business as a 50% owner of the shares of the defendant company. The plaintiff's tenure of employment was approximately nine months. As a co-founder and co-owner of the business he was in a very senior position. His position was formally titled vice president. He was 41 years old at the time of the termination of his employment. His position was essentially sales. In light of the cases relied upon in para. 43 of the plaintiff’s factum, I find the seniority of the position militates for a somewhat longer notice period that the brevity of tenure and young age of the plaintiff might otherwise suggest. The reasonable notice period in this case is nine months. The damages for lost income over that period is 75% of $55,000 or $41,250.

[6] The plaintiff's unchallenged evidence is that his share of profits for the period of his tenure is $330,562.59. The plaintiffs expense numbers seem quite uncertain and far too limited. It seems to me that a contingency deduction of 25% is warranted. Accordingly, the plaintiff is entitled to damages for his share of profits of $247,921.94.

[7] The defendant made unsubstantiated allegations of cause for dismissal. It sent harassing email messages and accused the plaintiff have serious misconduct publicly. The plaintiff has not adduced evidence establishing that he suffered significant mental or physical harm thankfully. In my view, the plaintiff should be entitled to $10,000 as moral damages associated with the manner of dismissal. The plaintiff has not established any basis for damages in respect of the Human Rights Code or an independently actionable tort to support punitive damages

F. L. Myers, J.

Date: March 18, 2021