



COURT OF APPEAL FOR ONTARIO

CITATION
: Carter v. 1657593
    Ontario Inc.
(The Olde Angel Inn), 2015 ONCA 823

DATE: 20151127

DOCKET: C59744

Laskin, Pardu and Roberts JJ.A.

BETWEEN

Graham Carter

Respondent

and

1657593 Ontario Inc. (O/A The Olde Angel Inn)

Appellant

David House, for the appellant

Adam Stewart, for the appellant

Bradley Troup, for the respondent

Christopher Dilts, for the respondent

Heard and released orally: November 24, 2015

On appeal from the judgment of Justice J.A. Ramsay of the
    Ontario Superior Court of Justice, dated November 20, 2014.

ENDORSEMENT

[1]

On this appeal, the appellant challenges only the trial judges finding
    that the respondent had adequately mitigated his damages arising out of a
    wrongful termination from his employment by the appellant.

[2]

The trial judge found that the respondent made reasonable efforts to mitigate
    his damages and that the appellant failed to discharge his onus to demonstrate
    that he had failed to do so.

[3]

The trial judges decision is well supported by the evidence at trial
    and is entitled to considerable deference on appeal. We see no reason to
    interfere.

[4]

The respondents re-employment prospects were diminished. At
    termination, he was in his fifties, with limited education, and had worked for
    most of his adult life for one employer, the appellant. The appellant did not
    provide the respondent with a letter of reference; the respondent searched for
    new employment while under the cloud of his former employers accusations of
    theft and other wrongdoing.

[5]

The respondent checked advertisements, submitted a résumé, and reached
    out to his contacts in the hospitality industry. The latter effort led to the
    best offer of employment that he received from the Colonel Butler Inn. This is consistent
    with the opinion of the appellants employment expert that most jobs are
    unadvertised.

[6]

To mitigate his damages, the respondent was not obliged to accept
    employment that was not comparable to his employment with the appellant. The
    job with the Colonel Butler Inn was not comparable in status, hours, or remuneration.
    In the circumstances as the trial judge found, the respondents subsequent
    acceptance of the part-time job with the Sandtrap bar, with the hope of
    building up his Double Z bar business, was reasonable.

[7]

There was no evidence of other employment opportunities available during
    the twenty-month notice period that would have been comparable to the
    respondents former employment with the appellant.

[8]

The appellants expert was not prepared to opine about the respondents
    specific employment prospects, qualifying her general statement that he may
    very well have found a similar job, with her lack of knowledge about the
    respondents industry, and the difficulties that the respondent faced because
    it was an employers market, the respondent was looking for a job without a job,
    and he had been out of the job market for nineteen years.

[9]

Finally, there is no basis to interfere with the trial judges decision
    not to attribute income from the Double Z bar business to the respondent. The
    trial judge was satisfied on the basis of the businesss financial statements,
    the deficiencies of which were known to and weighed by the trial judge, and the
    respondents evidence, that the bar was not generating enough revenue to pay
    him a salary.

[10]

As
    a result, the appeal is dismissed.

[11]

Costs
    to the respondent are set at $15,000 all inclusive.

John
    Laskin J.A.

G.
    Pardu J.A.

L.B.
    Roberts J.A.


