



COURT OF APPEAL FOR ONTARIO

CITATION: Loyst v. Chatten's Better Hearing Service, 2013
    ONCA 781

DATE: 20131220

DOCKET: C55561

Doherty, Sharpe and MacFarland JJ.A.

Dawn Loyst

Plaintiff (Respondent)

and

Chattens Better Hearing Service

Defendant (Appellant)

Gordon A. Meiklejohn, for the defendant (appellant)

Yan David Payne and Andrew D. Pelletier, for the plaintiff
    (respondent)

Heard and released orally:  December 19, 2013

On appeal from the judgment entered by Justice T. McEwen
    of the Superior Court of Justice, dated May 7, 2012.

ENDORSEMENT

[1]

The style of cause is changed on consent to describe the appellant as
    Chatten Enterprises Limited.

[2]

The trial judge found that the appellant terminated the respondents
    employment when she refused to agree to the significant unilateral changes in
    her employment proposed by the respondent (see para. 27).  We see no basis upon
    which we can interfere with this finding of fact.

[3]

Given that finding of fact, the appellants argument that the respondent
    did not mitigate her damages by staying in her employment under the new terms
    proposed by the appellant cannot succeed.  Put simply, the appellant took that
    option away when he terminated the respondents employment.

[4]

The trial judge awarded damages based on the amount the appellant had
    agreed to pay the respondent in the written contract governing the employment. 
    The amendment to that agreement did not alter the amount the respondent had
    agreed to pay, although it did provide that the payments would be made directly
    to the respondent and not as was previously the case to her company.  The fact
    that the respondent was no longer obligated to pay GST under the revised
    agreement, did not in our view affect the amount the appellant had agreed to
    pay to the respondent.  The trial judge properly calculated damages based on
    that amount.

[5]

The appellant also argues that the trial judge should have calculated
    the value of the 15 percent ownership interest owed to the respondent by
    applying the agreed upon formula as of the date of the end of the five-year
    contract as opposed to as of the date of the contract.  While there may be
    merit to this argument on the language of the agreement, we are satisfied that
    the trial judge proceeded as he did because of the positions taken by the
    parties before him.  We are not prepared to interfere with the trial judges
    assessment based on the different position that is advanced here.  We
    especially refuse to do so, given the absence of any evidence at trial quantifying
    the claim based on the approach proposed by the appellant on appeal.

[6]

The appeal is dismissed.

[7]

In the absence of any cross-appeal, we are not prepared to entertain the
    respondents submissions that the award should be increased.

[8]

The respondent is entitled to her costs of the appeal fixed at $15,000,
    inclusive of disbursements and relevant taxes.

Doherty J.A.

Robert J. Sharpe J.A.

J. MacFarland J.A.


