CITATION: Wronko v. Western Inventory Service Ltd., 2008 ONCA 479

DATE: 20080618

DOCKET: C46187

COURT OF APPEAL FOR ONTARIO

WINKLER C.J.O., MacPHERSON AND ROULEAU JJ.A.

BETWEEN:

DARRELL WRONKO

Appellant (Plaintiff)

and

WESTERN INVENTORY SERVICE LTD.

Respondent (Defendant)

Michael W. Kerr and M. Christine O’Donohue, for the appellant Darrell Wronko

P. Christopher Lloyd, for the respondent Western Inventory Service Ltd.

Heard:  March 10, 2008

On appeal from the judgment of Justice J.R.R. Jennings of the Superior Court of Justice dated October 11, 2006, with reasons reported at (2006), 54 C.C.E.L. (3d) 50.

ADDENDUM BY THE COURT:

[1]               Following the release of the reasons for judgment, Wronko v. Western Inventory Service Ltd., 2008 ONCA 327, counsel for the appellant requested an opportunity to make written submissions with respect to damages.  Counsel for the respondent did not oppose the request and the court accepted further written submissions from both parties.  In his further submissions, the appellant’s position is that his damages award in the amount of $286,000 should not have been subject to the duty to mitigate. 

[2]               Neither side had dealt with the assessment of damages or mitigation in their written and oral argument on appeal.  Mitigation was argued at trial, but the trial judge did not assess damages and did not deal with mitigation.

[3]               The appellant now points to clause 2.4 in his employment contract, not previously drawn to the court’s attention, which states: 

2.4       Within one (1) pay period after the end of the month in which the effective date of termination occurs, or if the Employee should cease to perform his duties hereunder under any other circumstances, then within one (1) pay period after the end of the month in which such cessation occurs, the accountants of the Company for the time being shall report as to the amount of remuneration payable to the Employee as aforesaid, and the amount shown to be payable (taking into account any prior payments that have been made on account thereof) shall be paid within one (1) pay period of the making of the report…. A pay period is equivalent to two (2) weeks from the date of [the] last previous pay day. 

[4]               In the circumstances of the present case, this clause required the respondent to pay the appellant his severance payment of $286,000 by no later than October 31, 2004.  By requiring the respondent to make a lump sum payment shortly after termination, this term of the contract amounted to a waiver by the respondent of any obligation on the part of the appellant to mitigate.

[5]               Accordingly, our judgment is amended to award the appellant damages equal to two years’ salary of $286,000.  We make no order as to costs in relation to the further submissions of counsel.  

[6]               We awarded the appellant his costs on a substantial indemnity basis both at trial and on appeal.  Having reviewed the parties’ costs submissions, we fix these costs in the amount of $50,000 at trial and $50,000 on appeal.

RELEASED:  “WW”  “JUN 18 2008”

“W. Winkler C.J.O.”

“J.C. MacPherson J.A.”

“Paul Rouleau J.A.”