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Damages - Joint and Several Liability. Krmpotic v. Thunder Bay Electronics Limited
In Krmpotic v. Thunder Bay Electronics Limited (Ont CA, 2024) the Ontario Court of Appeal considered facts which justify a finding of 'joint and several liability':JOINT AND SEVERAL LIABILITY
[39] The appellants submit that the trial judge erred in making them jointly and severally liable for the damages awards. They say that TBEL was Mr. Krmpotic’s employer when his employment was terminated and the trial judge gave no reasons for ordering joint and several liability. Accordingly, the appellants contend, liability (if any) should be that of TBEL alone.
[40] I do not accept this submission.
[41] In the first sentence of his reasons, the trial judge states that Mr. Krmpotic “was employed by the [appellants] for approximately 30 years, from February 1987 to June 13, 2016, when he was terminated without cause or notice”. In my view, he made no error in finding that both appellants employed Mr. Krmpotic for the duration of his employment with them. Having made that finding, the trial judge made no error in holding them both liable for the damages Mr. Krmpotic suffered.
[42] Mr. Krmpotic’s evidence made it clear that he was employed by both appellants. However, so too did the appellants’ evidence. The appellants’ only witness at trial was Mr. Caron, who was the Vice-President and General Manager of TBEL and also the President of Hill Street. In his affidavit, Mr. Caron states that Mr. Krmpotic’s employment was “transferred” between the appellants a number of times during his employment with them.
[43] In any event, the Settlement Memorandum leaves no doubt that both appellants were Mr. Krmpotic’s employers. It will be recalled that the appellants drafted the Settlement Memorandum and asked Mr. Krmpotic to sign it at the termination meeting. The Settlement Memorandum describes the parties to it as the employer and the employee. The “Employer” is defined as TBEL and Hill Street together; the “Employee” is defined as Mr. Krmpotic. The first preamble in the Settlement Memorandum states that “WHEREAS the Employee has been employed by Thunder Bay Electronics Limited and Hill St. Financial Services Inc. since on or about Feb. 24,1987”. And, the Settlement Agreement concludes with the statement that the “Employer” is signing on behalf of “THUNDER BAY ELECTRONICS LIMITED, HILL ST. FINANCIAL SERVICES INC.” These three parts of the Settlement Memorandum make it crystal clear that the appellants together employed Mr. Krmpotic for the duration of his employment with them.
[44] Because Mr. Krmpotic was employed by both appellants, the trial judge made no error in ordering them jointly and severally liable for damages arising from their wrongful termination of his employment.
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