Le Journal De Montreal Reviews

It's all trivial it's Dean McCoy of Milton Ontario who lives on Syer who attempts to gaslight and bully people especially women again like he has done at McLaren, Morris and Todd

Wow Anonymous or is it Sam,Carol. Marie eve, Irv, Dotty, Sylvie, etc.....here is what we found on you and your real name is Dean McCoy of Syer Dr in Milton Ontario a 59 yrs old over weight with a fat *** and beer gut.Remember when you and your wife tried to screw your ex employer McLaren, Morris and Todd in 2001 in Ontario Superior Court?January 4, 2001 Judge Lamek writes of Dean McCoy in Ontario Superior Court; "I do not believe that McCoy's wife (who is also a defendant by counterclaim) was involved in - or even fully aware of - the impropriety carried on by McCoy"..."realized secret profits for which he never accounted to MM&T".."This strains credulity, particularly in light of the evidence that others told McCoy that what he was doing was wrong"..."Several witnesses, including McCoy's own wife gave evidence that they would consider such behavior wrong"..."I have no doubt that McCoy realized that he was acting wrongly vis a vis MM&T and that he was anxious to conceal his activities from MM&T"..."McCoy surreptitiously" and "secretly tape-recorded his meetings with MMT"...Mr. McCoy was ordered to pay over $50,000 to his employer.up-OSCJ_McCoy_v_McLarenMorrisTodd.

Colleen Caylah McCoy confesses to cyber stalking in open court!

It's all trivial it's Dean McCoy of Milton Ontario struggled with mental illness leave him alone and let him heal and his meds take effect. For the love of Hog

Wow Finally here is what we found on you and your real name is Dean McCoy of Syer Dr in Milton Ontario a 59 yrs old over weight with a fat *** and beer gut.Remember when you and your wife tried to screw your ex employer McLaren, Morris and Todd in 2001 in Ontario Superior Court?January 4, 2001 Judge Lamek writes of Dean McCoy in Ontario Superior Court; "I do not believe that McCoy's wife (who is also a defendant by counterclaim) was involved in - or even fully aware of - the impropriety carried on by McCoy"..."realized secret profits for which he never accounted to MM&T".."This strains credulity, particularly in light of the evidence that others told McCoy that what he was doing was wrong"..."Several witnesses, including McCoy's own wife gave evidence that they would consider such behavior wrong"..."I have no doubt that McCoy realized that he was acting wrongly vis a vis MM&T and that he was anxious to conceal his activities from MM&T"..."McCoy surreptitiously" and "secretly tape-recorded his meetings with MMT"...Mr. McCoy was ordered to pay over $50,000 to his employer.up-OSCJ_McCoy_v_McLarenMorrisTodd.

https://app.vlex.com/#vid/mccoy-v-mclaren-68130**** DEAN MCCOY NANCY VANDORP V. MCLAREN, [2001] O.T.C.

7 (SUPCT) Date: January 3 2001 Cited as: [2001] O.T.C. 7 (SupCt) Jurisdiction: Ontario Court: Superior Court of Justice of Ontario Judge: Lamek, J. McCoy v. McLaren, Morris & Todd Ltd., [2001] O.T.C.

7 (SupCt) MLB headnote and full text Temp. Cite: [2001] O.T.C. TBEd. JA.060 Dean McCoy (plaintiff) v.

McLaren, Morris and Todd Limited (defendant) McLaren, Morris and Todd Limited (plaintiff by counterclaim) v. Dean J. McCoy and Nancy M. Van Dorp carrying on business in partnership as Nadean Services (defendants by counterclaim) (98-CV-154833) Indexed As: McCoy v.

McLaren, Morris and Todd Ltd. Court of Ontario Superior Court of Justice Lamek, J. January 4, 2001. Summary: This headnote contains no summary.

Master and Servant - Topic 7502 Dismissal of employees - General principles - What constitutes dismissal or discharge (incl. constructive dismissal) - See paragraphs 1 to 28. Master and Servant - Topic 7558 Dismissal of employees - Grounds - Disloyalty - See paragraphs 29 to 36. Cases Noticed: Lake Ontario Portland Cement Co.

v. Groner (1969), 28 D.L.R.(2d) 589 (S.C.C.), refd to. [para. 34].

Bannister v. General Motors of Canada Ltd. (1998), 112 O.A.C. 188; 40 O.R.(3d) 577 (C.A.), refd to.

[para. 34]. Bee Chemical Co. v.

Plastic Paint & Finish Specialties Ltd. et al. (1979), 41 C.P.R.(2d) 175 (Ont. H.C.), affd.

(1979), 47 C.P.R.(2d) 133 (Ont. C.A.), refd to. [para. 35].

Counsel: Loreta Zubas, for the plaintiff and the defendants by counterclaim; Robert L. Colson, for the defendant and plaintiff by counterclaim. This action was heard on November 8 to 10, and 14 to 16, 2000, before Lamek, J., of the Ontario Superior Court, who released the following judgment on January 4, 2001. Please note: The following judgment has not been edited.

[1] Lamek, J. : The plaintiff ("McCoy") was employed by the defendant ("MM&T") for approximately eleven years. MM&T was a commercial printer. McCoy was initially hired in the Autumn of 1987 as a production co-ordinator.

Three years later, he became a member of MM&T's sales force and served in that capacity until he left the company on August 7, 1998. [2] The terms of McCoy's employment were set out in a series of Sales Commission Plans which contained applicable commission rates, the structure of McCoy's remuneration plan, and certain policies of MM&T to which I shall refer later as they become relevant. [3] There was no salary component in McCoy's remuneration package. In his final Sales Commission Plan, which was to cover the period from October 1, 1997 until September 30, 1998, the agreed remuneration terms were that McCoy was to receive a weekly amount of $1,115.38 and a monthly amount of $1,000 (the latter being a car allowance).

Those amounts over the course of the year's term of the Plan, would provide a total of $70,000. The weekly and the monthly amounts were all clearly designated as "draws against commission". Commissions were paid on a sliding scale and varied with the mark-up that a salesman could achieve on a sale. When a customer or potential customer requested an estimate on a printing job, MM&T gave to the salesman an statement of MM&T's cost to do the job.

It was then up to the salesman to obtain the best price he could. The greater the margin he was able to obtain over the cost figure, the higher would be the rate of commission that he earned on that order. [4] Not all members of MM&T's sales force operated on the same basis. Some did not receive draws against commissions and simply were paid commissions as they were earned.

The advantage of the draw scheme under which McCoy and some others operated was perceived to be that it provided a reliable basic cash flow for the salesman. When earned commissions exceeded his draw, the amounts over and above his draw were paid to him. [5] For a number of years, McCoy apparently did very well with his sales activities. In 1997 and 1998, his commission income was in the order of $200,000.

[6] Unfortunately, in 1996, a major client of MM&T (the Bay) which had been serviced by McCoy since 1993, decided to take its printing work elsewhere. The decision was made sometime during 1996 but the Bay agreed to continue to send its printing work to MM&T until the Spring of 1997. McCoy put a value of $2,000,000 per annum on the Bay's printing work. [7] It was the practice at MM&T for each salesman, towards the end of the Plan year (i.e.

in the late Summer), to prepare a budget containing his prediction of the sales volume that he expected to generate during the ensuing year. Each salesman then discussed his budget and projections with senior management and the budget as so settled formed the basis for the salesman's remuneration for the coming year. In effect, that meant - for McCoy and others on the "draw against commissions" plan - the amount of the weekly draw and car allowance. [8] In the late Summer of 1997, McCoy, notwithstanding the recent disappearance of work from the Bay, was sufficiently optimistic about his ability to make up for that loss from other continuing customers and from new clients, that his draw arrangements were left as they had been in the previous year's plan.

Unhappily, his performance did not justify his optimism. By December 31, 1997--three months into the plan year--McCoy had received a total of $17,499.94 in draws (including the car allowance) but had earned commissions totaling only $10,746.37, producing a "deficit" of commissions of $6,753.57. [9] This situation was taken seriously by MM&T. The evidence of William Morris (a member of the company's top management and the person responsible for sales and marketing) was that from the very beginning of the 1997-8 plan year, in October 1997, McCoy was drawing in excess of his earned commissions.

He (Morris) was concerned and told McCoy that he would review the situation at the end of the first quarter i.e. in January, 1998. Morris testified that beginning in January, 1998, he began to meet with McCoy monthly to review McCoy's progress and to urge McCoy to improve his sales performance. According to McCoy's recollection, the meetings were not regularly held; he met "at least three or four times" with Morris to discuss McCoy's "sales performance and activity".

I accept Morris' evidence about the frequency of the meetings; he, as the person in charge of sales, received monthly statements of each salesman's sales and commissions and draws and it is entirely plausible that he would move quickly to address a situation that was developing and worsening. [10] The position did not improve in the late Winter and Spring of 1998. At the end of January McCoy had received draws against commission totaling $24,076.84 but had earned aggregate commissions of $14,249.13, producing a deficit of commissions of $9,827.71. By the end of February, the deficit had increased to $14,875.37 and one month later, at the end of March, 1998, stood at $16,997.58.

April was a better month for McCoy and the deficit was reduced to $14,673.60 but thereafter the decline continued and at the end of June the draws received by McCoy in the plan year to date exceeded his earned commissions by $22,045.75. Morris testified that he regularly told McCoy of his concern that McCoy was not "covering his draw". He was also concerned that McCoy did not appear to be diligently seeking new business. With respect to the deficit, Morris testified that at a meeting in the Spring he told McCoy that if the deficit was not dealt with, at some point McCoy's draw would have to be adjusted.

Morris said that this became a regular point of discussion at the meetings in the late Spring and early Summer of 1998. McCoy denied that there was ever any mention of reducing his draw until the reduction was actually made in July--a matter to which I shall next turn. But before doing so, I note that I accept the evidence of Morris as to the earlier warnings about the need to review the draw structure if the deficit situation did not improve. Not only is that an action that MM&T would be likely to consider in the circumstances (and one that Morris would be likely to raise with McCoy as an incentive to correct the deficit position) but one element of the meeting that took place between Morris and McCoy on July 9 lends credence, in my view, to Morris' evidence and detracts from the credibility of McCoy's evidence in this regard.

[11] Morris and McCoy met on July 9. By that date, Morris had the end-of-June sales and commissions report and knew that the deficit in McCoy's draws-against-commission account had grown to more than $22,000. He was concerned that there would be an even greater deficit by the end of the plan year at September 30 and he had decided that the situation had to be addressed before it became even worse (in fact, the deficit, by August 19, 1998, grew to $26,551.62). Morris told McCoy that the car allowance component of his draw would be eliminated and that his total draw against commissions would be reduced to $760 per week.

He also said that the draw issue would be reviewed from month to month. Morris thus left open the chance for an increase over the new level. McCoy testified that this came out of the blue and was stunning news. He said that he "did not agree" but that Morris "held all the cards".

[12] There are two matters of note about the meeting of July 9. The first is that it was no part of the purpose of Morris or of MM&T to reduce McCoy's draw so as to eliminate the deficit that existed. That was a debt owed to MM&T but this was not an attempt to recover the amount owed. The draw was adjusted to reflect the commission level at which McCoy had been operating for three-quarters of the plan year.

In the nine months from October 1, 1997 until June 30, 1998, a period of 39 weeks - McCoy had earned commissions aggregating $30,054.07 i.e. an average weekly commission of $780.87. I accept that the reduction in McCoy's draw was not to recover the existing deficit but to take precautions against its further growth. And Morris testified that at the meeting he explained to McCoy the rationale for the reduction to $760 per week.

[13] The second remarkable feature of the July 9 meeting--and the one that, in my view, weakens McCoy's story that until that day there had been no mention of a possible reduction in his draw - is that McCoy surreptitiously tape-recorded it. In her opening, Ms Zubas had said that McCoy began taping his meetings with Morris in April. The evidence of McCoy, however, did not refer to any taping prior to the June meeting. It does not greatly matter.

In my view, the fact that McCoy was surreptitiously making a record of the meetings indicates an awareness of the importance that Morris appeared to be attaching to the situation and a corresponding concern on McCoy's part that there could be unattractive consequences for him. If McCoy had reason to think that a reduction in his draw was imminent and if he held the view (as he says he did) that such an adjustment could not properly be made before the end of the plan year, it is altogether likely that he would want a record of what was said. On the other hand, it is difficult to understand that he would secretly tape-record a meeting that he had no reason to think could have any drastic effect on his life. [14] At the close of the meeting on July 9, McCoy told Morris that he did not "agree with" Morris' decision but, he said, "Morris held all the cards".

McCoy was understandably very upset. He had continuing financial obligations--a mortgage and a car lease--and the immediate future looked very bleak. He went home early that day and he and his wife began to try to work out how they could cut expenses to fit their new income level. It was McCoy's evidence that he did not believe that Morris and MM&T had the contractual right to reduce his draw in the course of the plan year.

He did not, however, seek legal advice at that stage. [15] What he did do was to formulate a counterproposal that he put to Morris at a meeting on July 23. On that day, McCoy told Morris that he could not live on the reduced draw and asked that MM&T treat him as a broker in the short term, i.e. allow him to sell MM&T's services to customers "for his own account".

In other words, on any work sold by McCoy, MM&T would recover only its cost and McCoy would receive any mark-up over cost. In effect, the commission deficit would remain in place, McCoy would continue to receive draws against commission at the reduced weekly rate; and McCoy would receive one hundred percent of any profit achieved on work that he generated. Understandably, Morris did not find McCoy's counterproposal very appealing. He asked "Why would I do that?" to which McCoy replied, "Because otherwise you are driving me out of the door".

Morris said that he would think about it but McCoy recognized that Morris was not enthusiastic about the plan. [16] McCoy did not receive a response from Morris for a week. In the meantime, McCoy continued to work at MM&T. On July 31, McCoy was called in to Morris' office and Morris told him that MM&T was prepared to adjust the commission level that would apply to orders obtained by McCoy.

On all orders--including those where the mark-up over cost was less than five per cent, to which the lowest commission rate would apply, McCoy would be credited with the commission rate applicable to orders marked up more than five per cent. McCoy did not see this suggestion as providing much relief and, although he decided to seek legal advice, he continued to report for work at MM&T, being paid, since July 13, at the new reduced draw rate. [17] On August 5, McCoy's solicitor, Ms Zubas, wrote to Morris. I quote portions of the at letter: I have reviewed with [McCoy] recent events at the workplace whereby unilateral fundamental changes were made to my client's contract of employment....

Having reviewed the company's conduct, I am of the opinion that my client required notice of these fundamental changes. If the company is not prepared to maintain his contractual remuneration until March 1999, I have advised my client that he has been, in effect, constructively dismissed. It appears that the company has been conducting a "campaign" to force my client to quit, which I have advised him not to do. ...(emphasis added) [18] Morris testified that upon reading the letter, he was puzzled and shocked.

He was puzzled because he did not understand what was meant by "constructively dismissed" and also because he did not understand the asserted entitlement of McCoy to have his remuneration continued until "March 1999", which would be six months beyond the life of McCoy's current commission plan which was to end on September 30, 1998. And Morris was shocked by the allegation that there had been a campaign to force McCoy out of MM&T. In his mind, there had been no intention to force McCoy to quit. He referred the letter to MM&T's solicitors for response.

[19] Mr. Colson responded to Ms Zubas' letter on August 7. He explained the draw-against-commission system on which McCoy had been operating, summarized the history of the commission deficit since October, 1997, and explained that "as a result, Mr. McCoy's draw for the remaining three months under the existing plan was adjusted in order that the existing shortfall not be exacerbated".

Mr. Colson expressed his own puzzlement over the assertion that McCoy had been constructively dismissed--particularly since McCoy continued to report for work at MM&T. He then added: I take it that you are intending to advise that Mr. McCoy is taking the position that he has been constructively dismissed, in which event I think it would be appropriate for him to cease reporting to work.

I can assure you that my client has an understandable reluctance to continue with Mr. McCoy's employment in light of the position taken in your letter and while I would not wish to act prematurely or have you take this letter as a letter of termination, I am at something of a loss to know what you expect of my client under the present circumstances. If indeed it is your position that Mr. McCoy has been constructively dismissed, kindly advise him to leave the premises and turn over any and all property belonging to the company forthwith.

(emphasis added) [20] Two other events occurred on August 7. First, the entire staff of MM&T was summoned to a meeting at which it was announced that the company had been sold to an American buyer. Ironically, this had the effect of extending the then current commission plan beyond September 30 although Ms Zubas' letter of August 5 had been written without any awareness of that circumstance. And, in any event, nothing flowed from the sale of the company that had any relevance to the issues in this action, although it may well have served to exacerbate the concerns of McCoy as to his future.

[21] The other event on August 7 was that as McCoy was leaving to go home from MM&T (at about 3 p.m.), he was paged by Morris. According to McCoy, Morris asked if he had retained a lawyer and, upon being told that he had, suspended McCoy from employment. Bluntly, this evidence, which suggests that McCoy was suspended because he had sought legal advice, makes no sense. Morris had known since he received Ms Zubas' letter by fax on August 5, that McCoy had retained counsel.

He had instructed Mr. Colson to reply to that letter which he did on August 7. There was no possible reason for Morris to ask McCoy, in the middle of the afternoon of August 7, if he had retained a lawyer. It is, in my view, entirely likely that Morris asked if McCoy had spoken to his lawyer, meaning was McCoy aware of Mr.

Colson's second letter of that date to Ms Zubas. That was the letter in which Mr. Colson had said that MM&T would be telling McCoy not to report to work until Ms Zubas had responded to Mr. Colson's first letter of August 7.

McCoy did not see the second letter until he returned home on August 7 and he had not, therefore, discussed it with Ms Zubas at the time that Morris spoke to him. It is entirely understandable that McCoy may have misunderstood Morris' question. But I am not prepared to draw any inference that McCoy was being punished or chastised for having retained counsel. In any event, McCoy testified that at that point, he felt that his career at MM&T was over.

He returned his keys and his pager to MM&T on Monday, August 10 and never returned, The statement of claim was issued shortly thereafter. [22] McCoy claims damages for wrongful dismissal. The dismissal, he says, was constructive. MM&T advances alternative defences.

First, it denies that McCoy was ever dismissed. Second, in the alternative, if he was dismissed, it was for cause. The facts relied on by MM&T to show cause also form the basis for the counterclaim that MM&T makes against McCoy and his wife. I shall come to those facts later.

For the moment, I address the issue of whether McCoy's employment was terminated by MM&T. [23] Essentially, McCoy's claim that he was constructively dismissed turns on his contention the MM&T had no right to change his remuneration package during the term of the then existing plan. He says, correctly, that the plan document nowhere expressly gives the employer any such right. Much time was spent at trial on the scope and meaning of clause G) in McCoy's 1997-8 plan which provided: Any deficits or overpayments of commissions may be carried over into the next year at the discretion of the Management.

[24] Clearly, to that extent, MM&T had express discretion in the event of an imbalance of commissions and draws. In my view the language of clause G) did not expressly or by necessary implication provide authority for the action taken with respect to McCoy's remuneration package. [25] But I am satisfied that MM&T had the right to do what it did in the way that it did it. The nature of the employment contract is of the utmost importance.

McCoy's income from MM&T comprised commissions that he earned. If he earned no commissions, he was entitled to nothing. The draw system was in place for the convenience of McCoy and others who worked under it, to afford them a measure of predictability and reliability in their cash flow. But the draws were draws against commissions.

The position taken by McCoy could lead to an absurd situation that MM&T would be powerless to address: a salesman on the draw system could simply decide to take off an entire year, putting in only token appearances and making absolutely minimal sales effort. On McCoy's theory, even although such an employee made no sales and earned no commissions, MM&T would be obliged to continue to pay his agreed draws until the end of the plan year. At that point, if he were at the same draw level as McCoy, he would owe MM&T $70,000 which MM&T might have to sue to recover--if, that is, the salesman had the means to satisfy a judgment. In my view, to consider such a consequence of McCoy's theory is to demonstrate its unsoundness.

In situation like this, the employer must have the right, acting reasonably, to say: "Your draws are considerably in excess of your demonstrated ability to earn commissions. The plan, which was based largely on your prediction of the business you would do, was too optimistic. It makes no sense to continue to increase your debt to the company without any indication that you can catch up. We are going to bring your draw into line with your actual sales.

And on a regular basis, we will see if there is any justification for changing the draw amount again.". [26] In my view, that is precisely what happened here. On the basis of Morris' evidence, which I accept, McCoy was made completely aware of MM&T's concern about the growing deficit and knew that his draw situation would be reviewed unless the situation improved. I do not find anything high-handed or insensitive or overbearing about the way Morris handled the situation.

MM&T was entirely within its rights to take the action that it did. That action did not provide any basis for a conclusion that McCoy was constructively dismissed. [27] In addition, even when Ms Zubas' letter of August 5 was received, with its assertions of constructive dismissal and of a "campaign" to get rid of McCoy, Morris did not terminate McCoy. He suspended him until such time as Mr.

Colson received a reply to his letters of August 7, in which he had asked for clarification of whether it was indeed McCoy's contention that he had been constructively dismissed. McCoy chose never to return to work. [28] The claim for wrongful dismissal, therefore, fails. In the event, however, that I am wrong in so deciding, I turn next to the facts that underlie the defence of just cause and the counterclaim.

[29] It is undisputed that while he was employed by MM&T, McCoy took certain orders from customers of MM&T and from others for his own account. In other words, some orders were never referred to MM&T but were sent by McCoy to other printers. McCoy participated in the profits from such orders; MM&T did not. [30] Although admitting that such transactions occurred, McCoy maintains that they were not prohibited by MM&T.

They were jobs that, because of their small size, he says, were not suitable for MM&T's large presses. Rather than turn down the work and send the customer to another printer, McCoy says that it was in MM&T's interest that he should take on the work and arrange for its performance, thus maintaining the contact with the customer. [31] There are several problems with McCoy's attempted justification for his activities. First, if they were not forbidden and were on the level, it is difficult to know why he took pains to conceal them.

All invoices for such orders were sent not by McCoy but by his wife, who operated a horse farm business. Following his departure from MM&T, McCoy sent invoices for such work himself without any involvement by his wife. He insisted that the change in invoicing practices was purely coincidental and in no way indicative of any furtiveness during his employment with MM&T. This strains credulity, particularly in light of the evidence that others told McCoy that what he was doing was wrong and that he was putting his job in jeopardy.

Several witnesses, including McCoy's own wife gave evidence that they would consider such behaviour wrong. I have no doubt that McCoy realized that he was acting wrongly vis a vis MM&T and that he was anxious to conceal his activities from MM&T. [32] Second, by these transactions, McCoy realized secret profits for which he never accounted to MM&T. It is black letter law that an agent may not use his position to make profits for himself that should go to his principal.

[33] Even the assertion that the jobs he took for himself were not suitable for MM&T's presses has no substance. The evidence discloses that where a customer had work that was too small or otherwise unsuitable for MM&T's presses, MM&T would accept the order and subcontract the work to another printer, taking a mark-up on that printer's price to MM&T. McCoy was aware of that practice and to the extent that he diverted work away from MM&T and into his own pocket, he was clearly depriving MM&T of an opportunity to make a profit and taking that profit for himself. [34] The law is clear and of very long standing that where an employee acts in a way that is incompatible with the faithful discharge of his duties to his employer, his employment may be summarily terminated.

And it is of no consequence that the improper conduct was not known to the employer at the time that he terminated the employee's employment. Subsequently-discovered misconduct may be relied upon to establish that cause existed for the dismissal: Lake Ontario Portland Cement Co. v. Groner (1969), 28 D.L.R.(2d) 589 (S.C.C.) at p.

598; Bannister v. General Motors of Canada Limited (1998), 40 O.R.(3d) 577 (C.A.). [35] There is no doubt in my mind that McCoy's diversion of orders away from MM&T to his own advantage while he was employed by MM&T was in breach of his duty to MM&T. He owed a duty of loyalty which involved a duty to avoid bringing his own interests into conflict with those of MM&T.

That duty does not need to be reduced to writing in an employment contract to be binding. It arises out of the employer/employee relationship and means inter alia, that McCoy could not use for his own benefit special information that came to him by virtue of his position as an employee of MM&T. I refer to Bee Chemical Co. v.

Plastic Paint & Finish Specialties Ltd. (1979), 41 C.P.R.(2d) 175 (Ont. H.C.), aff'd 47 C.P.R.(2d) 133 (C.A.). Here, McCoy had access to valuable information concerning MM&T's business.

He knew not only who MM&T's customers were but also the contact person for printing work at each of those customers. He knew a great deal about MM&T's costs and quoting practices. And he knew about the pricing practices of MM&T's suppliers, some of whom he used as his own suppliers for work that he diverted away from MM&T to himself. He had all of this information by virtue of his employment with MM&T and he was under a duty not to use the information contrary to the interest of MM&T.

[36] I am satisfied that McCoy's conduct in the matter of these intercepted business opportunities was a violation of the duty that he owed to MM&T and constituted sufficient cause for his summary dismissal. I conclude, therefore, that McCoy's claim that he was improperly dismissed fails. I have said that in my view there was no dismissal, actual or constructive, by MM&T. But even if MM&T did dismiss McCoy, if had sufficient cause to do so and has no liability therefor.

[37] If, however, MM&T were liable to McCoy for damages for wrongful dismissal, I would assess those damages as follows. McCoy claims that he was entitled to eight months' notice of termination. If he had been wrongfully dismissed after the approximately eleven years service that he had given to MM&T, an eight month notice period would not have offended me. Indeed, I would have accepted that claim.

The difficulty comes in trying to translate that notice period into dollars. McCoy had no steady flow of income. He had a draw that, at the end of his time with MM&T, equaled his demonstrated earning capacity. On the basis of his performance during the last eight months prior to his departure, there is nothing to justify any projection of an increase of those earnings into the notice period.

I therefore take as the appropriate starting point the then weekly amount of $760. That becomes a monthly amount of $3,293 and, over an eight month period, amounts to $26,347, before income tax. But against that amount, there must be applied the sum of $26,551 which McCoy owed to MM&T in respect of unearned draws against commissions. Clearly, even before tax, and without deducting any revenue received by McCoy as a result of his mitigation of damages, McCoy would thus be in another deficit position.

He has suffered no damages. [38] I turn, then, to the counterclaim. So far as it relates to matters and events that occurred prior to McCoy's departure from MM&T, the situation is very clear. First, McCoy still owes to MM&T the amount that he received as draws in excess of his entitlement to commissions.

As at August 19, 1998, that amount stood at $26,551.52. MM&T shall have judgment against McCoy for that amount together with interest at the statutory rate from August 19, 1998 until this date. [39] In addition, the revenues he received from work diverted from MM&T while McCoy was employed by MM&T. must be disgorged.

Seven invoices for such orders were in evidence. They totaled, exclusive of G.S.T., $7601.90. MM&T shall have judgment for that amount, plus interest at the statutory rate. The interest will run, not from the dates of the respective invoices but, for ease of calculation, from the date of McCoy's departure from MM&T, i.e.

August 7, 1998. [40] The situation with respect to printing jobs obtained and billed by McCoy after he left MM&T is not so clear. His contract of employment contained no restrictive covenant or any other provision restricting his activities away from MM&T. In my view, however, he had a continuing duty not to use for his own benefit confidential information that had come to him in his employment with MM&T.

To the extent that he did so, he, in effect, misappropriated assets of his former employer and the fruits of that misappropriation must be disgorged. [41] A limiting factor here, however, is in the pleadings. In its counterclaim, MM&T claimed "an accounting of all revenues earned in connection with print work done or any orders received during the term of the plaintiff's employment and for two months thereafter, together with payment to the defendant of that amount which the defendant would have earned had it performed the work in place of others" (my emphasis). [42] At the opening of trial Mr.

Colson, for MM&T, filed an Amended Trial Record. No amendment had been made--and none was sought--to the paragraph that I have quoted. In my view, MM&T has placed its own limit on the period for which it seeks an accounting. In argument, Mr.

Colson took the position that revenues for an eight-month period should be accounted for and disgorged. That would provide an attractive symmetry with the same number of months that was claimed by McCoy as the proper notice period, but there is no basis for it, in my view. In my opinion, MM&T is bound by its own pleading and is restricted to an accounting for a two-month period. [43] There were only two invoices to clients or former clients of MM&T in the two months after August 7, 1998.

There was no evidence of any other sales to or dealings with such clients. The two invoices, exclusive of G.S.T., aggregated $7,328 and MM&T shall have judgment for that amount also, together with interest at the statutory rate from the date of the second invoice, viz. August 28, 1998. [44] I have said that MM&T is to have judgment for the amounts derived from business improperly done by McCoy.

It remains, however, to determine against whom that judgment should go. [45] I do not believe that McCoy's wife (who is also a defendant by counterclaim) was involved in--or even fully aware of--the impropriety carried on by McCoy. But she was not totally ignorant of it. She, after all, wrote out the invoices for printing jobs that McCoy had taken for himself while he was still employed by MM&T.

It is not clear on the evidence who was the recipient of the payments made on the invoices. McCoy and his wife were partners in Nadean Services, in whose name the invoices were apparently sent. And there was some evidence that the revenues derived from the printing jobs and from the other activities of Nadean were split between McCoy and his wife for tax purposes. In the result, therefore, in my view, judgment on the counterclaim should go (a) against McCoy in the amount of $26,551,52 in respect of the unpaid deficit in his commission account; and (b) against McCoy and Nancy M.

Van Dorp jointly and severally for $14,929.90 (comprising the two amounts of $7,601.90 and $7,328) together with pre-judgment interest at the rates and for the periods stated in these Reasons. [46] Notwithstanding the able argument of Mr. Colson, I do not consider this to be an appropriate case for an award of aggravated or exemplary damages. [47] The defendant is to have its costs against McCoy on a party and party scale.

If Counsel are prepared to have me fix the costs, I invite their written submissions as to quantum at their early convenience but certainly before the end of this month. Order accordingly.

Editor: Eric B. Appleby [End of document]

Show me the money....... we play with your money.....this is beautiful!

This is gonna be a good week......!! Cha Ching$

Hey.......where are all the Gazette / Sue / Irv postings you had?? Good thing we had copies and sent them to Bernard and William.....LOL.

And don't forget........ Cha Ching$