


COURT OF APPEAL FOR ONTARIO

CITATION:
Chandran v. National Bank
    of Canada, 2012 ONCA 205

DATE: 20120327

DOCKET: C53757

MacPherson, LaForme JJ.A., and Pattillo J. (
ad
    hoc
)

BETWEEN

Adrian Chandran

Plaintiff (Respondent)

and

National Bank of Canada

Defendant (Appellant)

Malcolm Mackillop and Hendrik Nieuwland, for the
    appellant

William Gale, for the respondent

Heard and released orally: March 23, 2012

On appeal from the judgment of Justice Pollak of the Superior
    Court of Justice, dated April 26, 2011.

ENDORSEMENT

[1]

The appellant National Bank of Canada (the bank) appeals the
    judgment of Pollak J. of the Superior Court of Justice dated April 26, 2011,
    awarding the respondent Adrian Chandran (Chandran) damages for constructive
    dismissal of $131,226.59 and costs of $85,894.64.

[2]

Chandran was employed by the Bank for 18 years.  He was promoted
    several times and by August 2007 he was a senior manager, which included the
    responsibility of supervising 11 employees.

[3]

In August 2007, the bank conducted a survey of the employees in
    Chandrans office.  Nine of the 11 employees complained about Chandran, saying
    that he made condescending remarks, embarrassed employees in front of others,
    and engaged in bullying behaviour.

[4]

After a meeting with Chandran to discuss the employee complaints,
    the bank sent him a disciplinary letter setting out the behaviour that provoked
    the complaints, informing him that he would be relieved of his supervisory
    duties, and providing him with two possible reassignment options (same salary
    and level, but without supervisory responsibilities).  The letter ended:

As mentioned in our discussion, we wish to reiterate that
    disrespectful treatment of employees and colleagues must cease immediately and
    you are not to take part in any actions that may be seen or perceived to be
    retribution by the employees who raised their concerns to us.  You must know
    that further behaviour of this type will result in termination of employment
    for cause.  Please note that no other warnings will be issued on this matter.

[5]

Chandran did not accept either offer.  He left the bank and after
    14 months found employment with another bank.

[6]

Chandran brought an action against the bank for wrongful
    dismissal.  The trial judge found that Chandran was constructively dismissed
    and that he was not required to mitigate his damages by accepting one of the
    positions offered by the bank.  She fixed the notice period at 14 months and
    awarded damages of $131,226.59.

[7]

Initially, the trial judge fixed costs at $65,833.35.  After
    taking into account offers to settle, she increased the costs award to
    $85,894.64.

[8]

The bank does not appeal the finding that it constructively
    dismissed Chandran.

[9]

The bank contends that the trial judge erred by concluding that
    Chandran was not required to mitigate his damages by accepting one of the
    positions offered by the bank.

[10]

We disagree.  The leading case dealing with an employees duty to
    accept a different position with his employer to mitigate his damages after
    being terminated from another position is
Evans v. Teamsters, Local 31
,
    2008 SCC 20.  In
Evans
, Bastarache J. stated that a finding by a trial
    judge that an employer did not meet its burden of proving that a dismissed
    employee should have accepted an offer of re-employment is a finding of mixed
    fact and law and is, therefore, subject to appellate intervention only if there
    is a palpable and overriding error in the trial judges finding.

[11]

The bank cannot clear this high hurdle in this appeal.  The trial
    judge considered the factors relevant to mitigation enumerated in
Evans
. 
    She held that the factors that gave rise to the constructive dismissal (a
    finding, we note, that the bank does not appeal)  the imposition of serious
    discipline on Chandran and the serious findings of misconduct  led her to
    conclude that, viewed objectively as required by
Evans
, Chandran would
    have been subjected to, again as per
Evans
, an atmosphere of
    embarrassment or humiliation as well as a real fragility in his continuing
    employment with the bank.  Accordingly, it simply cannot be said that the trial
    judges ultimate conclusion that Chandran did not therefore have a positive
    duty to accept the offers amounts to a palpable and overriding error.

[12]

The bank also appeals the costs award on two bases.

[13]

First, the bank asserts that the trial judge ordered partial
    indemnity costs of $65,833.35 without allowing for submissions from the bank.

[14]

We do not accept this submission.  The bank received Chandrans
    costs submissions and chose not to say anything about either the hours worked
    or rates billed on behalf of Chandran at the trial.  Indeed, in its appeal
    factum the bank states: The Bank took no issue with the hours spent and hourly
    rates in Chandrans costs outline and therefore made no comment.

[15]

Second, the bank contends that the ultimate award of $85,894.64
    is not proportional and is outside the reasonable expectations of the bank.

[16]

We disagree.  Having not challenged the legal work that generated
    the initial costs award of $65,833.35, the bank is in no position to challenge
    the extra $20,000 that flows almost entirely from the trial judges
    consideration of offers to settle.

[17]

The appeal is dismissed.  The respondent is entitled to costs
    fixed at $22,600 inclusive of disbursements and HST.

J.C. MacPherson J.A.

H.S. LaForme J.A.

L.A.
    Pattillo J. (
ad hoc
)


