



COURT OF APPEAL FOR ONTARIO

CITATION: Hampton Securities Limited v. Dean, 2018 ONCA 901

DATE: 20181109

DOCKET: C64908

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Hampton Securities Limited

Plaintiff

(Appellant)

and

Christina Nicole Dean

Defendant

(Respondent)

Sara Erskine and David Barbaree, for the appellant

Christopher Somerville and Daphne Hooper, for the
    respondent

Heard: November 7, 2018

On appeal from the
    judgment of Justice Markus Koehnen of the Superior Court of Justice, dated
    February 7, 2018, with reasons reported at 2018 ONSC 101.

REASONS FOR DECISION

[1]

Christina Dean was employed by
    Hampton Securities Limited (Hampton) as a proprietary trader. On April 2,
    2009, Ms. Dean met with Hamptons C.E.O., Peter Deeb. During that meeting, Mr.
    Deeb took the position that Ms. Dean owed Hampton money as a result of certain
    trading losses and that Ms. Dean was required to post an additional $50,000 to
    her reserve account, failing which she would be suspended from trading.

[2]

The next day, Ms. Dean
    resigned from Hampton, citing constructive dismissal. Shortly thereafter,
    Hampton filed a Notice of Termination (NOT) on the National Research Database
    maintained by its regulator, the Investment Industry Regulatory Organization of
    Canada (IIROC). In that filing, Hampton stated that Ms. Dean was terminated
    for cause for failing to follow trading policies and engaging in unauthorized
    trading.

[3]

Hampton commenced this action
    seeking repayment from Ms. Dean of amounts alleged to be owing as a result of
    trading losses. Ms. Dean counterclaimed alleging constructive dismissal and
    defamation.  The trial judge ruled that Ms. Dean owed no monies to Hampton,
    that she was constructively dismissed and was entitled to six months notice in
    lieu of salary, that she was entitled to damages in the amount of $25,000 for
    defamation, and that she should receive $25,000 in punitive damages. In a
    subsequent written endorsement on costs, the trial judge awarded costs on a
    full indemnity basis to Ms. Dean in the total amount of $248,144.94.

[4]

Hampton appeals all of the
    foregoing findings and the costs award. In our view, the arguments advanced by
    Hampton, which will be considered below, are entirely without merit.

[5]

There is no basis to interfere
    with the trial judges interpretation of Ms. Deans employment contract with
    respect to trading loses. The trial judge provided thorough and compelling
    reasons why Ms. Dean is only required to reimburse Hampton for 60 percent of
    such loses. That analysis is entitled to deference from this court:
Sattva
    Capital Corp. v. Creston Moly Corp
, 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50 - 55. In any event, we
    are of the view that the trial judges analysis was correct.

[6]

We also see no error in the
    trial judges conclusion that Ms. Dean was constructively dismissed and was
    entitled to six months notice. There can be no serious argument that Ms. Dean
    was not constructively dismissed when Mr. Deeb took the position that she would
    be suspended from trading if she did not pay an additional $50,000.

[7]

The trial judge found
that the termination clause in Ms. Deans
    employment contract was not enforceable on the basis that it excluded Ms.
    Deans entitlement to benefits under s. 60(1)(c) of the
Employment
    Standards Act
,
2002
, S.O.
    2000, c. 41. In doing so, the trial judge relied on

Wood v.
    Fred Deeley Imports
, 2017 ONCA
    158, 134 O.R. (3d) 481. In our view, the trial judge correctly analogized the
    termination clause in Ms. Deans employment contract to the termination clause
    in
Wood
. Both clauses provide for pay after termination without cause
    but exclude further compensation. The trial judge did not err in finding that
    the clause in Ms. Deans employment contract excluded benefit contributions and
    thereby did not comply with s. 60(1)(c) of the
ESA
.

[8]

The primary submission made on
    the defamation claim is that the defence of qualified privilege applies.
There are two limitations to the qualified
    privilege defence established in
Botiuk v. Toronto Free Press
    Publications Ltd.
, [1995] 3
    S.C.R. 3 and re-articulated by this court in
RTC Engineering
    Consultants Ltd v. Ontario
(2002), 58 O.R. (3d) 726. These authorities hold that the defence will be
    defeated: (1) if the dominant motive for publishing is malice, or (2) if the
    statement exceeds the limits of the duty giving rise to the privilege.

[9]

In our view, leaving aside
    the issue of malice,
the trial
    judge was correct to find that the defence of qualified privilege did not apply
    on the basis that Hamptons statement exceeded the legitimate purposes of the
    duty to report all internal discipline matters to IIROC
.
The
    trial judge, relying on ample evidence, found that the information submitted in
    the NOT was untrue and wholly unsubstantiated. Providing misleading statements
    to IIROC clearly exceeded the scope of the duty to report all internal
    discipline matters or the duty to warn of potential risks that registered
    individuals may create.

[10]

We are also of the view that the award of
    punitive damages was perfectly appropriate given the conduct of Hampton,
    including the independently actionable breach of the duty of good faith in Ms.
    Deans employment contract.  Such an award was necessary to sanction Hampton
    for its marked departure from the ordinary standards of decent behavior.

[11]

Contrary to the submission made by Hampton,
    there is no overlap in the damages awarded. The damages were modest and do not
    come close to fully compensating Ms. Dean for the devastating consequences of
    Hamptons conduct.

[12]

Finally, there is no basis to interfere
    with the costs award. Ms. Dean made repeated generous offers to settle the case
    that were rebuffed or ignored by Hampton. It is clear that Hampton took a
    hardline, no compromise position in this litigation. That is a tactic that comes
    with costs consequences; it does not fall to this court to relieve Hampton from
    those consequences.

[13]

The appeal is dismissed.

[14]

The respondent seeks costs on a substantial
    indemnity scale, arguing that the appeal was a continuation of the abuse she
    has suffered at the hands of Hampton. We would not give effect to this
    submission. The appellant raised some arguable issues on appeal. While those
    ground were weak, we cannot say that the appeal was abusive. We order the
    appellant to pay the respondent her costs of the appeal on a partial indemnity
    scale in the amount of $35,500.

P. Lauwers J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


