Galbraith v. Acres International Limited
The Court held the trial judge's findings were supportable: removal of about 90% of the respondent's duties constituted constructive dismissal, the alternative offered was demeaning and excused mitigation, and there was ample basis that age was a factor supporting the Wallace extension; appeal dismissed.
Source-derived case information.
- Citation
- C36153
- Parties
- Plaintiff (respondent): David Galbraith; Defendant (appellant): Acres International Limited; Defendant (appellant): Acres Incorporated
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 24 September 2002
- Procedural Posture
- Civil Appeal (employment/constructive Dismissal) / Court of Appeal Decision on Appeal From Trial Judgment
- Outcome
- Appeal dismissed
- Legal Topics
- Constructive Dismissal, Wrongful Dismissal, Mitigation, Age Discrimination, Wallace Damages
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Galbraith
Plaintiff (respondent)
Acres International Limited
Defendant (appellant)
Acres Incorporated
Defendant (appellant)
Procedural Posture
Civil Appeal (employment/constructive Dismissal) / Court of Appeal Decision on Appeal From Trial Judgment
Legal Issues
- 1 Whether removal of 90% of duties constituted constructive dismissal
- 2 Whether the alternative position offered was sufficiently demeaning to excuse the employee from accepting it (mitigation)
- 3 Whether age was a factor supporting an extension of notice under Wallace
Ratio Decidendi
The Court held the trial judge's findings were supportable: removal of about 90% of the respondent's duties constituted constructive dismissal, the alternative offered was demeaning and excused mitigation, and there was ample basis that age was a factor supporting the Wallace extension; appeal dismissed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs fixed at $16,483.88 to the respondent
Full Case Text
Judgment text and source record
1 paragraphs
Galbraith v. Acres International Limited Collection Decisions of the Court of Appeal Date 2002-09-24 Docket numbers C36153 Judges McMurtry, Roy; Carthy, James Joseph; Goudge, Stephen Thomas Subject Civil Decision Content DATE: 20020924 DOCKET: C36153 COURT OF APPEAL FOR ONTARIO RE: DAVID GALBRAITH (Plaintiff (Respondent)) – and – ACRES INTERNATIONAL LIMITED and ACRES INCORPORATED (Defendants (Appellants)) BEFORE: McMURTRY C.J.O., CARTHY AND GOUDGE JJ.A. COUNSEL: W. Bruce Drake For the appellant David Harris For the respondent HEARD: September 17, 2002 On appeal from the judgment of Justice Nancy Backhouse of the Superior Court of Justice dated March 22, 2001. ENDORSEMENT Released Orally September 18, 2002 [1] We see no basis for interfering with the findings of the trial judge. We would address the three arguments raised by the appellant as follows. [2] First, the removal of 90% of the respondent’s duties is enough to sustain the finding of constructive dismissal. It is not necessary in our view that a finding of constructive dismissal of a manager require the removal of 100% of his or her duties. [3] Second, the finding that the alternative offered to the respondent was demeaning to him is a sufficient basis to excuse him from taking it by way of litigation. [4] Finally, there was an ample basis for the factual finding that age was a factor in the change of the respondent’s duties, which is the only basis for the attack made by the appellant on the Wallace extension. [5] For these reasons the appeal must be dismissed. Costs fixed at $16,483.88. “R.R. McMurtry C.J.O.” “J.J. Carthy J.A.” “S.T. Goudge J.A.”