Case Name:
Drouillard v. Cogeco Cable Inc.
Between
Kevin Drouillard, plaintiff, and
Cogeco Cable Inc. and Phasecom Systems Inc., carrying
on business as Mastec Canada, defendant
[2005] O.J. No. 3166
[2005] O.T.C. 657
42 C.C.E.L. (3d) 222
[2005] CLLC para. 210-040
141 A.C.W.S. (3d) 147
2005 CarswellOnt 3257
Court File No. 01-GD-52346
Ontario Superior Court of Justice
R.C. Gates J.
Heard: December 23, 2004.
Judgment: July 26, 2005.
(144 paras.)
Tort law -- Interference with economic relations -- Interference with business relationship -- Contracts -- Damages -- For torts -- Pure economic loss -- General damages -- Loss of income -- Exemplary or punitive damages.
Action by Drouillard against Cogeco Cable and Phasecom Systems for damages for unlawful interference with contractual and economic relations. Drouillard worked at Cogeco for 15-years before he left to pursue other opportunities in another city. His employment record was exemplary. Upon his return two years later, Drouillard sought and obtained employment with Phasecom as a network installer and servicer for its primary customer, Cogeco. However, prior to the commencement of employment, Drouillard was informed on two separate occasions that he was terminated because representatives of Cogeco did not want him working on its property or equipment. Drouillard claimed that Cogeco interfered with his contractual relationship with Phasecom because of his prior attempts to unionize Cogeco. He submitted that Cogeco's dominance in the marketplace meant that no other similar employment was available. Drouillard's family obligations tied him to the area in which he lived. He submitted that his annual salary in his chosen field was approximately $80,000. He subsequently worked as a railway conductor for $44,000 per year. Drouillard sought loss of future income damages in the amount of $800,000.
HELD: Action allowed in part. Cogeco wrongfully interfered with Drouillard's economic relations in a manner that caused his employment contract with Phasecom to be rescinded on two separate occasions. Cogeco had no legal justification for its actions. There was no evidence that Drouillard's employment by Phasecom adversely affected Cogeco's business interests. Cogeco's actions caused Drouillard an economic loss. Phasecom acted out of a legitimate business concern to keep its primary customer satisfied. Drouillard failed to establish a case for future income loss. The maturation of the industry and the decline of available local work reduced Drouillard's potential salary by approximately $45,000. Drouillard satisfied his obligation to mitigate his damages. He was entitled to damages of $113,000 based on his income loss between the termination by Phasecom and the commencement of his new employment. He was further entitled to non-pecuniary damages in the amount of $62,000 for the humiliation and loss of reputation he suffered as a result of Cogeco's malicious conduct.
Counsel:
Raymond G. Colautti and Anita Landry, for the Plaintiff
Adrian Miedema and Kerry Williams, for the Defendant
[Editor's note: A corrigendum was released by the Court July 26, 2005; the correction has been made to the text and the corrigendum is appended to this document.]
REASONS FOR JUDGMENT
R.C. GATES J.:--
1. Overview
1 The Plaintiff Kevin Drouillard ("Drouillard") is a former employee of Cogeco Cable Inc., ("Cogeco") who worked there for approximately 15 years until he resigned in December 1999, in order to pursue other employment opportunities in the Cable Industry in the United States.
2 About two years later he returned to his hometown of Windsor hoping to resume his career in the Cable Industry here as an independently employed technician.
3 Cogeco, which is the successor of the Trillium and Shaw Cable Companies, enjoys a virtual monopoly on the Cable Television and fibre optic businesses, in Windsor and Essex County.
4 Mastec is an independent outside contractor which supplies highly skilled technicians such as the Plaintiff to undertake cable and fibre network installations and servicing for Cogeco in Windsor/Essex County. It also conducts cable installations and servicing for other customers in Kent and Middlesex Counties. In Essex County, however, Cogeco is by far its largest customer.
5 Drouillard sought and obtained employment offers from Mastec Canada ("Mastec") in February and May 2001 but on each occasion either at the point of hiring or almost immediately thereafter, he was advised by Mastec that it could not let him continue working and he was therefore terminated.
6 On the two occasions referred to, representatives of Cogeco told representatives of Mastec that it did not want the Plaintiff working on Cogeco property although it acknowledged that Mastec could employ the Plaintiff elsewhere in its operations, so long as this did not involve any plant, premises or equipment of Cogeco.
2. The Issue
7 The central issue from the Plaintiff's perspective is whether or not there has been an unlawful interference with his contractual and economic relations with Mastec, for which he says, he has suffered damages.
8 Subsequent to his resigning from Cogeco in 1999, the Plaintiff earned approximately $80,000.00 Canadian per annum as a piecework contractor-technician working for a company called T.S.I. in the United States. When he decided to return to Ontario he applied to work for Mastec in February 2001. He says that he was prevented from doing so because of the interference of Cogeco. He unsuccessfully endeavoured to find alternate employment in his chosen field but ostensibly, because of the dominance of Cogeco in the Essex County market place, there was no other similar employment available to him.
9 Eventually he was able to obtain a job with Canadian Pacific Railways where, after suitable training, he became certified as a Conductor, with an annual salary of approximately $44,000.00 before trial. However, after several months he was laid off from that position and at the time of trial, he was subsisting on Employment Insurance benefits. There is some indication that he might be recalled in 2005 by C.P.R.
10 Drouillard is married and has two children. His wife suffers from a disability which prevents her from sitting or standing for prolonged periods of time and as a consequence, the Plaintiff has had to remain fairly close to home in order to take over household and homemaking duties ordinarily performed by his wife. Additionally his 17-year-old daughter is an accomplished hockey player and as such, this has meant that most weekends during hockey season are spent by the Plaintiff travelling with his daughter and her team to various games and tournaments, in addition to practice and game commitments during the week. Apparently he also provides assistance to his 85-year-old grandmother and her 65-year-old developmentally challenged son as well as his 75 year-old father-in-law.
11 All of the foregoing means, therefore, that from the Plaintiff's perspective at least, he is somewhat tied to the Windsor/Essex County area which would make the prospect of him travelling very far in order to carry out employment, somewhat problematic for he and his family members.
3. The Facts
12 From the evidence of the various witnesses called on behalf of both parties, it is apparent that the employees of Cogeco and its predecessors were a very close and harmonious group who, it was stated by several, really interacted like a family unit. In addition to their shared employment experiences, they would frequently enjoy a beer after work and as well, they socialized at employee-organized company events such as house parties, barbecues, and the like.
13 It is the Plaintiff's impression that he got along well with everyone and was a respected member of the Cogeco team and he was not aware that anyone harboured any ill will toward him.
14 When he resigned his job in December 1999, he was presented with a going-away present and a "goodbye card" from his fellow employees, which was signed by virtually everyone at the office, including one Leo D'Agostini ("D'Agostini") who, as the facts unfolded, became the Plaintiff's nemesis. Because his United States-based work in the Metropolitan Detroit and Chicago areas was due to wind down in June 2001, the Plaintiff decided to return to Windsor. In preparation for his return, Drouillard approached Mastec and spoke with one Jim Vine about the possibility of obtaining employment there. He was requested to return on February 8th, 2001, to see Don Lacharite, Vine's Supervisor.
15 The Plaintiff testified that both Vine and Lacharite were excited about the prospects of his coming to work for Mastec because his experience and skill level meant that their company could bid on bigger and higher end jobs in the cable and fibre optic business.
16 He was hired and instructed to report for work the following Monday. However, when he showed up at that time, Vine advised him that the company did not in fact have a job for him. When the Plaintiff questioned this, he was told that he was on a "need to know" basis and Vine could not tell him anything further. However, in that conversation Vine inquired of the Plaintiff why D'Agostini did not like him. This apparently came as a complete surprise to Drouillard. The implication was that Cogeco had, behind the scenes, told Mastec not to employ him.
17 Having quit his Detroit job in order to return to Windsor and because he was unemployed, the Plaintiff sought the advice of Peter Hrastovec a Windsor lawyer who commenced correspondence with Cogeco, taking the position that what had occurred was in effect, an interference with Drouillard's contractual relationship with Mastec and that the result of D'Agostini's actions amounted to a "black-listing" of the Plaintiff in the local cable and fibre optic industry.
18 When he similarly attempted to apply for work at Silverline Cable a Windsor cable subcontractor similar to Mastec he was advised by its owner one Paul Saldon, that although he would be very interested in hiring the Plaintiff, there was a rumour floating around that he could not do so. Silverline like Mastec, was an independent contractor, which supplied technical services to Cogeco.
19 When he was dismissed by Mastec, the company offered the Plaintiff a job in its Kitchener or London operations, however it would not pay his for commuting expenses. The Plaintiff stated that he elected not to pursue this opportunity because he could not afford to (quite apart from the fact that it would require a minimum 2 to 3 hours in each direction per day to commute) and as previously described, the state of his wife's health made it necessary for him to be closer to home as often as he could, in order to attend to her needs and as well run the household. At that time she was considered totally disabled and she was receiving a Canada Pension disability pension.
20 Following the initial letter written on his behalf by Mr. Hrastovec, a response was received on or about April 16th, 2001 from one Michael McGuire, the Human Resources Director of Cogeco in which he stated that there had not been any direct instructions given by Cogeco to Mastec not to employ Drouillard in the Windsor area.
21 The Plaintiff took the letter to Mr. Vine at Mastec and he in turn consulted Cogeco to confirm whether or not there would be any problems in hiring the Plaintiff once again. Because this did not appear to be a problem, Drouillard was hired by Mastec for a second time, to commence work on May 28, 2001. He would be paid on a piecework basis. Because his previous job for Technical Services Inc., in Detroit (where he worked similarly on a piecework basis), earned him the equivalent of $80,000.00 Canadian funds for 8 months work, he anticipated a similar income here. However, there was no concrete evidence led by the Plaintiff to confirm this income potential.
22 Following the commencement of his employment on May 28th, while he was in the Town of Tecumseh working on a Cogeco piece of equipment for Mastec, a problem developed with it. He therefore called Cogeco and briefed it of the problem. Shortly after, one Tim Brooks showed up at Drouillard's work site and questioned why he was working on Cogeco equipment. In response, Drouillard told him he was working for Mastec.
23 By the time he had proceeded to his next work assignment, Jim Vine appeared and told Drouillard that once again Cogeco made it known that he was not permitted to work for Mastec if he was going to be working on Cogeco property. Therefore he was instructed by Vine to take his truck back home while Mastec attempted to straighten the issue out.
24 This proved to be unsuccessful because a short time later he was told once again that he was terminated. Mastec paid him not only for the half day that he had worked, but for two additional days.
25 Subsequently, in a letter dated May 30th, he was informed by Mastec management that its customer (Cogeco) objected to his working on their system but that it had no such objection about the Plaintiff working for Mastec elsewhere. Because he had been hired in good faith, by Mastec, it was prepared to offer him work in other locations such as London or Kitchener. However, because of his expressed family obligations (previously described), there was no other employment that could be offered to him by Mastec.
26 It is beyond question that in the ensuring months the Plaintiff undertook a prodigious amount of work in order to attempt to find similar employment elsewhere in Essex County without success.
27 He finally was able to secure a job at Canadian Pacific Railway, where he ultimately succeeded in becoming certified as a Conductor on or about February 26, 2004. He continued to work there on a full-time basis until August 2004 when he was laid off with no anticipated return date before 2005. His annual salary approximated $44,000.00.
28 In the years 1998 and 1999, while employed on a full-time basis by Cogeco, Drouillard earned the sums of $47,009.03 and $50,071.26 respectively. The year after his resignation in order to pursue his line of work as a sub-contractor, he earned $86,196.99 principally in the United States.
4. The Plaintiff's Employment Evaluations
29 On a number of occasions while employed at Cogeco, the Plaintiff underwent annual evaluations by his Supervisors, and from the documentation and his trial testimony, it is very obvious that he was thought of as a highly skilled and competent employee and technician.
30 Wayne Hills who is a former Construction Supervisor with Cogeco, was the Plaintiff's direct Supervisor in 1992 and had an occasion therefore to observe him both in the field and in the office and he stated as follows in his evaluation;
"His nature was always positive, that during work other employees always went to him to get answers to questions, socially he got along well with everyone; there were no negatives; that the Plaintiff would mentor new hires and he had hands on skills."
He also commented that Drouillard had a great attitude with constructive and useful concerns, he possessed good inter-personal skills and possessed a very high technical skill level. He was always described as being always courteous and reliable, he demonstrated a good drive and initiative and consistently demonstrated good judgment and was always reliable.
31 During the course of his trial testimony, Mr. Hills elaborated on a number of other issues pertaining to the Plaintiff's work habits and skills and, he was very positive. There were in fact no negative connotations or comments from him.
32 Hills also confirmed that on December 15, 1993, a group of 8 Managers and Supervisors of the Defendant, in a Memorandum signed by each of them, characterized the Plaintiff's performance as consistently above "expected" and where required, he troubleshoots cable problems with minimal down time and that he was an excellent employee who brought to Trillium Communications (the successor to Cogeco) a positive attitude and that he was an asset for both the company and its subscribers. They also acknowledged that he was looked up to by his peers and was capable of constructively helping and training other technicians who constantly came to him for answers to field questions.
33 In 1994, Leo D'Agostini whose involvement in this case is not only problematic but arguably represents the significant basis upon which the Defendant acted against the interest of the Plaintiff in the manner in which it did, was the immediate Supervisor of Wayne Hills who had conducted the evaluation. When he was cross-examined, D'Agostini confirmed that he did not disagree with any of the comments (all of which were positive), which were listed in Hill's evaluation of the Plaintiff.
34 D'Agostini himself conducted an evaluation of the Plaintiff in 1994, which like the others, was glowing, complimentary, and very positive. During his trial testimony he did not retract any of these comments.
35 Peggy Pagliaroni worked at Cogeco and with the Plaintiff for approximately 10 years from 1985 to 1995. During the course of her evidence, she likewise assessed him in very positive terms, using such words as "ideal employee"; "self-taught", "loyal", "articulate", "dedicated", "positive", "highly regarded by management", "team leader", "motivator" and "good people skills".
36 She also stated that the Plaintiff and his wife were the first ones to welcome any new technicians at the company and that Drouillard had excellent working relationships with employees and management.
37 The witness, Rudy Dauncey, was the Plaintiff's Supervisor during the period September 1, 1998 to August 31, 1999 and during this time D'Agostini was the Technical Operations Manager.
38 Dauncey was the Construction Lead Hand at that time and he remains so employed with Cogeco. In his evaluation of the Plaintiff he too gave a very positive and glowing summation of him and his employment at Cogeco.
39 In it he complimented the Plaintiff on the nature and quality of his record keeping, as well as his truck and equipment. From the technical side of the job Drouillard was described as being very effective in trouble shooting on outages and that he had developed an excellent knowledge of the optical receivers that the company was then using in the field and that they had all come to depend on his knowledge of the installation and activation of new nodes.
40 He also described the Plaintiff as having good communication and inter-personal skills and that he worked well with the staff.
41 Dauncey also testified that when he received a telephone call from Jim Vine at Mastec, with respect to that company hiring the Plaintiff, he told Vine that the Plaintiff was a good Technician and that he was excited to see him have the opportunity to work at Mastec. He described the Plaintiff as highly skilled and that an ongoing project, known as the 860 Upgrade, needed his skills and abilities. This was being performed by Mastec for Cogeco.
42 In his capacity as Technical Operations Manager, D'Agostini confirmed that he reviewed all the evaluations of the Supervisors who reported to him and that after reviewing Dauncey's evaluation of the Plaintiff, D'Agostini confirmed that he had no issues nor did he take any exception with any of the comments made on behalf of the Plaintiff by Dauncey and that he made no changes to Dauncey's evaluation of Drouillard.
43 However, notwithstanding his own positive evaluation of the Plaintiff in 1994, and his ratification of Dauncey's evaluation in 1988-1999, D'Agostini testified that Dauncey's evaluation represented a marked departure of his own views about the Plaintiff.
44 With respect to the relationship of the Plaintiff with Cogeco, from a different perspective, Drouillard testified about a memorandum dated May 7, 1996, which he sent to one Rick Therrien, following an April 16th, 1996 meeting. The document was prepared by the Plaintiff as a point-by-point rebuttal of the allegations being made and orchestrated against him by the then local manager of Cogeco as well as D'Agostini. The Plaintiff categorized these as a retaliation against him for his attempts to bring a union to the company, to address some of the issues that had arisen following the take-over of Trillium by Shaw Cable, both of which were ultimately taken over by Cogeco.
45 Following that meeting and the Plaintiff's memorandum, Peter Bissonette a Senior Executive with Cogeco came to Windsor from Toronto to personally apologize to the Plaintiff for this incident and as well, he fired the local Manager Pat Kiely. He further ordered that two memos pertaining to criticisms of the Plaintiff (one of which concerned the April 16, 1996 meeting), be removed from his personnel file and destroyed. He also cancelled a probation order, which had been imposed on the Plaintiff.
46 Against this background of overwhelming positive assessments and evaluations of the Plaintiff not only as a person but as an employee and as a skilled Technician, it is useful to examine the involvement of D'Agostini in order to piece together the factual matrix which serves as the context in which Cogeco, at the behest and direction of D'Agostini treated the Plaintiff in the manner in which it did.
47 It is not beyond reason to infer as I do, that D'Agostini harboured some resentment or dislike of the Plaintiff (which was the evidence of several witnesses) and that this was probably heightened by the fact that the Plaintiff's May 7, 1996 memorandum to Rick Therrien went over the head of D'Agostini and resulted in Peter Bissonnett, D'Agostini's boss, arriving in Windsor to personally apologize to Drouillard and fire the local Manager. This no doubt amounted to a rebuke of D'Agostini's activities and probably in the process, heightened his resentment of the Plaintiff.
48 During the course of his cross-examination, D'Agostini testified that he did not want the Plaintiff working either at Cogeco directly or indirectly through its sub-contractor Mastec because of the concerns from a management perspective, which he had. This was substantially if not completely, based on a discussion he allegedly had with two Cogeco employees whom he could not even identify. D'Agostini testified that they stated to him, that they thought the Plaintiff was bad for the morale of the company. Apart from his own observations about the apparent negative appearance of the Plaintiff's body language on several occasions and his negative mood, this appears to be the sole basis upon which D'Agostini proceeded to work against the interests of Drouillard. One cannot help but reflect that the analysis or investigation by D'Agostini lacked even the minimal of due diligence. This all struck me as being somewhat Kafkaesque in the sense that the Plaintiff was being judged and convicted by accusers unknown to him, largely because his principal antagonist D'Agostini, would not or could not identify them. In the circumstances and observing the hearsay nature of the evidence, I reject D'Agostini's evidence on this point.
49 During the course of his testimony, Drouillard described and confirmed the contents of his May 7th, 1996 memorandum. In it he apologized that, on some occasions, following the then recent death of his mother and his wife's continuing disability and potential health-threatening condition of blood clots in her legs, these factors all combined to affect his mood from time to time. When questioned about this, D'Agostini in a somewhat insensitive manner for a manager, dismissed this out of hand and stated that one should leave one's personal problems at home and not bring them to the office; a suggestion which I found in the context of his remarks, to be shallow, insensitive, and unrealistic, ignoring as it did, the reality and frailty of human emotion and experience. This is hardly the type of support an employee could reasonably expect to receive from a caring and interested supervisor.
50 The defence called four witnesses (Umuru, Haggins, Schooley, Brooks) who all testified that they heard the Plaintiff make negative comments about the company. However there was no evidence as to what if at all, affect the comments had on the operation of the company, the performance of the Plaintiff, or the morale of these four or any other employee. Accordingly I place little, if any, probative value on this evidence.
51 On another occasion, it appears that D'Agostini for some unknown reason went searching for the Plaintiff and encountered him in one of the company's trucks with two other employees at a Tim Horton's parking lot at 9:00 in the morning. The three of them were having a cup of coffee and going over their daily assignments. D'Agostini took the rather strident position that the employees in question had no business taking their coffee break at that time of the day and that they should conform to company standards. In response, the Plaintiff testified, that from the experience of he and those he was working with, this was a far more effective and less time consuming method of reviewing the daily work assignments, than travelling all the way downtown to the Cogeco offices, before proceeding on their respective ways. While this sounded eminently reasonable it seems to have fallen on deaf ears from D'Agostini's point of view. He seemed to be more interested in policing the Plaintiff than according him, as a highly skilled and motivated senior technician, some reasonable flexibility in the manner in which he carried out his employment responsibilities for the betterment of the company. There was absolutely no evidence from the defence that company policy mandated the taking of a coffee break in any specific manner as to time and place.
52 Dan Lacharite, the Vice-president of Operations for Mastec, testified that the Plaintiff was recommended to him for employment by his previous Supervisor, Rudy Dauncey. On the basis of this recommendation as noted earlier, he hired the Plaintiff effective February 2001. However, on the day the Plaintiff was due to commence work, D'Agostini called him and suggested, rather ominously, that it would be in Mastec's best interest if Drouillard did not work for it. When Lacharite asked why, D'Agostini apparently responded that he could not disclose the reason but he reiterated that it was definitely in Mastec's best interest to ensure that Drouillard was not employed there. This resulted in the first of the two terminations by Mastec of the Plaintiff.
53 Subsequently, and following a series of exchanged correspondence between the Plaintiff's solicitor Mr. Hrastovec and the Human Resources Director of Cogeco, McGuire, the Plaintiff was again offered employment by Mastec on or about May 28, 2991. Ostensibly, because Cogeco could not find any substantiation of the claim made by the Plaintiff that Mastec was not to employ him in the Windsor area, Lacharite then contacted two senior people at Cogeco, Mike Heinbuch, and Kevin Barnard, to inquire about the problem. He was advised by Heinbuch that Cogeco did indeed have a problem with the Plaintiff being employed by Mastec. He also offered the comment that an internal letter, which spelled this out, should never have been sent to Lacharite, all of which heightens the suspicion that Cogeco was not dealing with the Plaintiff in a fair or forthright way. It certainly appears that something sinister was afoot with respect to Cogeco and Drouillard.
54 On further inquiry by Lacharite as to the basis for this objection against employment, Barnard told him that the Plaintiff knew the reason and that he in effect "set Mastec up".
55 The Defence called neither Heinbuch nor Barnard, with the result that the evidence of the Plaintiff and his witnesses on these points remains un-contradicted and I accept it.
56 Therefore, based upon this meddling by Heinbuch and Barnard, Lacharite once again terminated the Plaintiff's employment with Mastec.
57 With respect to this second termination, Vine testified that the Plaintiff had been hired with a start day of May 30, 2001. He and Drouillard attended at the Cogeco offices at which time they met and chatted with Rudy Dauncey and one Bill Sorrell both of whom acted in a positive manner toward the Plaintiff as if they were welcoming him home. However, after this encounter, Vine received a telephone call from Sorrell who instructed him to immediately remove the Plaintiff from Cogeco work and on that basis he was terminated the second time.
58 Again, the defence did not call Sorrell to testify as to the circumstances and the context of his involvement (in the Plaintiff's termination by Mastec) on behalf of Cogeco.
59 Michael McGuire the former Human Resources Manager of Cogeco who is now a self-employed Consultant, testified that he dealt with the Kevin Drouillard issue for the first time in February 2001. This was in response to a telephone call he received from D'Agostini questioning whether or not Drouillard could be prevented from working for one of Cogeco's sub-contractors. After speaking with the Vice-president of Operations it was McGuire's advice to D'Agostini that Cogeco could advise the sub-contractor that it did not want certain employees working on its facilities, if it had "reasonable cause". D'Agostini was also advised to tell Mastec that with respect to hiring the Plaintiff, Cogeco had no problem with this because Drouillard was technically competent, but that he was not to work on Cogeco's system.
60 When McGuire was examined for discovery on June 28, 2002 he was asked a series of questions dealing specifically with Cogeco policy relating to employment of individuals by its sub-contractors. In response and through counsel, he provided a series of written answers in which he confirmed that Cogeco did not have any standard agreement which gave it authority to say who could or could not work on its system. He was unable to provide any information as to whether there was an established practice of dictating to the contractors, their employment practices. However, he did confirm that in the event it was desired that a sub-contractor not employ a certain individual that this position could be taken by Cogeco if there was "reasonable cause" for it to do so. Apparently the only other information he had about this type of practice was allegedly told to him by him by Jerry Marshall, the Vice-President of Operations of Cogeco who claimed that it was common practice in the industry. However, from Maguire's own experience, this was the first time he had ever heard of it.
61 It is obvious from McGuire's evidence that he relied completely upon the information provided to him by D'Agostini, who by now had arguably acquired something of a resentment or dislike of the Plaintiff. His reliance on D'Agostini is amplified by the fact that McGuire admitted in his cross-examination that he did review the Plaintiff's personnel file and acknowledged that it reflected the fact that he was possessed of good solid technical skills, had progressed in the ranks from a technical perspective, and had met all of the company's expectations. While there was a brief mention of attitude issues, this was nothing of any great consequence. Therefore, notwithstanding an overall excellent employee profile, but relying entirely on what D'Agostini was telling him, McGuire undertook no other independent investigation or due diligence of the issue (especially in light of Cogeco's policy of "reasonable cause") and communicated his instructions to D'Agostini that the Plaintiff was not work on Cogeco's property, while an employee of Mastec.
62 D'Agostini later reported back as instructed and confirmed his communication of the "no employment" message to Mastec, by which Cogeco from a technical perspective had "no difficulty" with the Plaintiff, but that he would not be accepted on Cogeco's work site. This conversation is at direct variance from the testimony of Lacharite who as noted earlier, stated that he was, in effect, ominously warned by D'Agostini not to employ the plaintiff with respect to Cogeco work. I prefer the evidence of Lacharite.
63 During the course of the trial and in particular the testimony of McGuire, an issue arose with respect to McGuire's evidence. It became obvious that he had made notes relating to his conversations of February 2001 with D'Agostini and others at Cogeco's head office pertaining to the hiring of the plaintiff by Mastec. However, none of this was disclosed in the Affidavit of Documents previously sworn by him. During the course of his examination-in-chief McGuire testified that he in fact did make notes of these discussions both with D'Agostini and plaintiff's counsel Mr. Hrastovec.
64 When confronted at the trial during the course of his cross-examination, with the contents of a letter written by Cogeco's counsel to Drouillard's counsel to the effect that McGuire made no such notes, this obvious contradiction could not be explained by him except that he "always" made notes. The implication which arose is that either the witness was being untruthful about the notes' existence in which case his credibility becomes suspect, or alternatively, if notes were made then they have been lost, suppressed or destroyed by the defendant Cogeco.
65 After considering the evidence of McGuire, I choose to reject it on the basis of an adverse finding on his credibility because his failure to disclose the existence of any such notes (in his Affidavit of Documents) and later through his counsel, denying that he made any such notes. This was contradicted by him during his cross-examination.
66 More troubling however and the second reason for rejecting his evidence is the issue as to whether the notes have gone missing because of their being suppressed or destroyed, given that he quite clearly stated in his evidence that he did in fact make notes of the conversations with D'Agostini and Hrastovec. The potential for the plaintiff's counsel to be able to cross-examine this witness about any conversations which his client had at this critical period of time as to whether or not the plaintiff could continue to be employed by Mastec, is of no small significance to his case.
67 Plaintiff's counsel argued that the second alternative, involving the suppression or destruction of the documents amounts to a spoliation of the evidence and in support of his position cited the case of Spasic State v. Imperial Tobacco Limited 49 O.R. (3d) 699 a decision of the Ontario Court of Appeal, which held that this doctrine is a rule of evidence. Referring to the earlier case of St. Louis v. the Queen 1895, 25 S.C.R. 649 it stated that; "The destruction of evidence carries a presumption that the evidence destroyed would have been unfavourable to the party who destroyed it, but that presumption may be rebutted."
68 Similarly the later case of Carrel v. Randy Laur Burner Services (2004) Carswell Ont. 66 holds that the spoliation of evidence is an evidentiary rule that raises a rebuttable presumption that the evidence destroyed would have been unfavourable to the party who destroyed it.
69 In circumstances of this case therefore I choose to follow these decisions. I find that the destruction presumption has not be rebutted and will therefore presume that McGuire's notes would not have been of assistance to the defendant and that accordingly an adverse inference can be drawn from their non-disclosure at this time. Furthermore, because of the non-disclosure I therefore choose to reject the evidence of McGuire insofar as it conflicts with any testimony of the plaintiff and/or his witnesses including his solicitor at the time, Mr. Hrastovec.
70 In passing I also hold that the earlier non-disclosure of this information in McGuire's Affidavit of Documents will be considered as evidence of malice or unfair dealing on the part of the defendant in acting against the plaintiff's attempt to obtain employment with Mastec.
5. Damages
71 The Defence argues that the plaintiff's obligation here is to prove his damages, contrary to a wrongful dismissal case (which this is not) where a plaintiff need only prove that he was discharged without cause and that from that point forward, he is entitled to a fairly well-defined set of damages subject to any mitigation that should be applied against those damages.
72 I agree that because this case is, strictly speaking, a tort case the onus rests with the plaintiff to firstly, prove his damages and secondly, prove that he has mitigated them where possible.
73 In the circumstances there is no doubt but that the Plaintiff endeavored through numerous responses and inquiries over about three and a half years to a great number of Windsor Star ads and so forth, to obtain employment, but he was unsuccessful. In my view he has satisfied any mitigation obligation.
74 The Defence denies that he could have earned $80,000.00 per year, because this is somewhat speculative based as it was, on his work from the U.S. While Drouillard has indicated he hoped to earn $80,000.00 a year elsewhere, there is no hard evidence of that before me.
75 After July 5, 2001 as testified by Rudy Dauncey the Construction Supervisor at Cogeco, the 860 Rebuild Project had effectively been finished and there was no more high-end work. However, there is no direct evidence from anyone at Cogeco about this. In any event, commencing September 2004 Cogeco began the 870 Rebuild Project, which would no doubt have benefited from the Plaintiffs' sophisticated skills.
76 The point here in response to the Defence is that the plaintiff did attempt to find work and he could not. He was criticized by the Defence in their argument that he never approached any of the other local contractors, all of whom he knew, (except for Mr. Saldon of the Silverline Company) with respect to finding work. It seems to me however that the problem that Cogeco has is that when it "blackballed" the plaintiff from working at Mastec it effectively precluded him from working for any other contractor as well who might have done work for Cogeco. Therefore, it does not really matter that he didn't talk to any of those other contractors because arguably if he had tried to work for any of them on Cogeco projects, Cogeco would have raised the same objection it did when he tried to work for Mastec.
77 Therefore the Plaintiff is left in the position of having nowhere to turn in the Cable technology field in Essex County.
78 From the point of view of damages the evidence is clear that because of the maturing of the industry and the decline in the amount of high-tech work available locally, the salaries for the sophisticated high-end technicians like the plaintiff would be reduced to somewhere in the mid-thirty thousand to mid-forty thousand dollar range as opposed to his hoped-for eighty thousand dollars.
79 The Defence also argued that not only did the work dry up after July 2001 but in-house people at Cogeco were handling the work. The point that troubles me however is the fact that there is ample evidence that 50-60 Cogeco employees were laid off (who were mostly if not completely technical employees), following the acquisition by Cogeco of Shaw and Trillium. Because the Cogeco system would constantly require maintenance, upgrades, service and repairs, it is reasonable to assume that this work would have to be delegated to the independent contractors.
80 If he had been allowed a freedom of choice he might have then decided to continue working in the short-term at a lower salary on less sophisticated jobs, in the hope that a project like the 870 Rebuild would come along in the future which would require his skill set and presumably at a higher income level. Alternately he might have pursued employment somewhere else in Essex County, but this too was an option that was denied to him by Cogeco's actions.
81 The Defence argues that the Plaintiff has failed in his obligation to mitigate his damages in that,
(i) He rejected an offer of a job in London both in February 2001 and May 2001 would require a daily commute from Windsor.
(ii) Piece rates paid for the work in London by the Rogers Company, were higher than what Cogeco was paying in Windsor, as testified by Lacharite of Mastec.
(iii) Both Vine and Lacharite of Mastec testified that it would pay him to commute; that it has paid on other occasions a "drive rate" of $8.60 per hour in addition to providing a vehicle and a gas card.
(iv) Furthermore the Plaintiff had previously commuted there for about three months where he worked for Vistacomm, which paid his travel expenses.
82 Therefore, the Defence says, his refusal to commute to London is unreasonable.
83 In support of this position both Lacharite and Vine had confirmed that because the Plaintiff possessed such good and valuable skills they very much wanted him to work for Mastec. Because Lacharite was "embarrassed" on behalf of Mastec for what happened to the Plaintiff "for the second time" in May 2001, it is reasonable to assume that Mastec would do whatever was reasonable to help him in order to secure his services to work in London. In other words, he was practically assured of a job there; one, which Cogeco argues, would potentially earn him much more than the market in Windsor was then paying. However, I heard no evidence as to what income this London opportunity would generate.
84 Furthermore a co-worker Andy Schooley who quit Cogeco at the same time as the Plaintiff, testified that he went to work in London for Vistacomm for a few months and that his travel expenses were paid.
85 Underscoring the commute issue, it is clear from a number of witnesses on both sides that the cable business is by its nature very mobile and that one has to follow the work, which inevitably involves living away from one's family. The Plaintiff himself had previously elected to work in Michigan, Maryland and Illinois before deciding to return to Windsor. While he did return home from Michigan and Illinois on the weekends, during his absences his wife and family were ostensibly able to look out for themselves.
86 The Plaintiff also admitted that his new C.P.R. job took him "all over" southern Ontario and that, because of rail track capacity utilization issues, the typical trip to London would take between 8 and 10 hours during which he would be away from his family. Arguably, one such trip by train would approximate the length of a day's work including commuting time, from Windsor to London, by motor vehicle.
87 It is fair to say that on a comparative basis, the potential work and income available to the Plaintiff in Windsor, as opposed to London, subsequent to the termination of the 860 Rebuild Project by Cogeco in July 2001, was considerably less. The witness Dauncey and others also confirmed the significant decrease in income potential for technicians after that date in the Windsor area.
88 Similarly, the witness Paul Saldon of Silverline Inc. testified that since July 2001 his company had not hired anyone new because of a lack of work. Interestingly however, he also confirmed that outside the Cogeco area of operations there was other fibre work available from Bell Canada, various School Boards, satellite companies and the like. However technicians are presently paid only $15.00 per hour, (approximately $30,000.00 per annum) considerably less than the approximate $38.00 per hour the Plaintiff earned in the United States the year after he left Cogeco.
89 Erik Jones a former contractor and a friend of the Plaintiff testified that in each of the three years 1997-2000 he earned $70,000.00, $101,000.00 and $120,000.00 respectively, but subsequent to that because of the drop-off in work he is presently earning only $35,000.00 as the regional manager of his company. He also confirmed that at present installers only earn $35,000.00 or less annually.
90 The Windsor employment picture was somewhat further complicated in Jones' experience by the fact that in recent times Cogeco is reducing the number of external technicians it sub-contracts work to, to just a few thereby diminishing further the employment and income potential for technicians such as the Plaintiff.
91 Lacharite of Mastec had earlier testified on this point as well and stated that Mastec people earn in the range of $30,000.00-$45,000.00 as installers. He described this work as being harder and it requires weekend work. He also testified that the technicians earn only about $40,000.00 at present.
92 It is reasonable to assume therefore that subsequent to July 2001, the Plaintiff might only be earning approximately $45,000.00 as a technician or installer. There was no evidence led by the Plaintiff to specifically contradict this.
93 Carl Hooper, a litigation accountant, was called by the Plaintiff to estimate his past and future income losses. However, his evidence was not all that helpful. His report is based on the assumption of an $80,000.00 a year income which approximates $38.00 an hour. While this income might have been available to the Plaintiff from his American employment before returning to Windsor, the evidence before me clearly establishes that similar work in Windsor after July 2001 would generate an income of only approximately one-half of that figure.
94 Furthermore, the Plaintiff testified that his annual income at C.P.R. approximates $44,000.00, which is roughly equal to what could be earned in the fibre tech industry and it appears this is the present income level for technicians in Windsor and Essex County since July 2001.
95 At the heart of the Plaintiff's damage claims is the allegation that the Cogeco has wrongfully interfered with his economic relations in the manner in which it caused his employment contract with Mastec to be rescinded by it on two separate occasions, in February and May 2001.
96 At first glance, one might be tempted to impose some liability on Mastec for hiring and then almost immediately terminating his employment on those occasions. However, I am satisfied from the evidence that it had a legitimate business concern to keep its primary customer happy and this concern was no doubt heightened in the sinister threat or warning issued by D'Agostini when he spoke with Mastec in February 2001.
97 The case of Reach M.D. Inc. v. Pharmaceutical Manufacturers Association of Canada, et al., 65 O.R. (3d) 30 a decision of the Ontario Court of Appeal released May 29, 2003, is particularly applicable in the case at hand.
98 There, the Plaintiff "Reach" created a calendar for distribution to the medical community, but the Defendant ("P.M.A.C.") warned its members that advertising in such a calendar could jeopardize an individual's membership in P.M.A.C.
99 P.M.A.C.'s actions were fatal to Reach's business and it sued P.M.A.C. for various economic torts.
100 While the trial judge held that the wrong caused by P.M.A.C. was cured in a subsequent business decision, on appeal this decision was overturned and the cross-appeal by P.M.A.C. against the finding that its conduct was tortious was dismissed.
101 In his Reasons, Laskin J.A. identified the three elements which have to be proved in order to establish the tort of intentional interference with economic relations and they are as follows:
(i) P.M.A.C. intended to injure Reach.
(ii) P.M.A.C. interfered with Reach's business by illegal or unlawful means.
(iii) As a result of the interference Reach suffered economic loss.
102 In discussing each of the elements separately, Laskin J.A. stated that it was not necessary to prove that P.M.A.C.'s predominant purpose was to injure the Plaintiff, but that the first element of the tort would be met so long as P.M.A.C.'s unlawful act was in some measure directed against Reach. The Defendants' manoeuvre must have been targeted against the Plaintiff although its predominant purpose might well have been to advance its own interests thereby, rather than to injure the Plaintiff.
103 From the facts at hand, it is beyond question but that the actions of Cogeco were directed against the Plaintiff personally. The initial warning given by D'Agostini in February 2001 might by itself be sufficient to meet this element, but the Defendant then compounded its position in May when Drouillard was ordered off an assigned job task from Mastec, working with Cogeco Equipment.
104 The primary and only target of Cogeco's actions was the Plaintiff. This conduct will satisfy the first element of the tort on its own, even if the predominant purpose might have been to advance Cogeco's interests rather than injure the Plaintiff. Here there is no evidence before me that Cogeco had any other motive but to engineer the Plaintiff's termination by Mastec. Nor is there any evidence that the Plaintiff's employment by Mastec would, in any way, adversely affect Cogeco's business interests.
105 In considering the second element of the tort, namely interference with the Plaintiff's business by illegal or unlawful means, by his interpretation Laskin J.A. prefers the broader view of this as being an act without legal justification. This was originally discussed by Lord Denning in Torquay Hotel Co. Ltd. v. Cousins [1969] 1 All E.R. 522 where he stated:
"I must say a word about unlawful means, because that brings in another principal. I have always understood that if one person deliberately interferes with the trade or the business of another, and does so by unlawful means, that is, by an act, which he is not at liberty to commit, then he is acting unlawfully, even though he does not procure or induce any actual breach of contract. If the means are unlawful, that is enough."
106 In the Reach case, the trial judge adopted this principal and found the letter written by P.M.A.C. to its various members against advertising in the Plaintiff's calendar was "an improper and unwarranted act". He concluded that it satisfied the second element of the tort.
107 In this case, while Cogeco may have had some right to dictate who works on its equipment, it is the way that it went about this that is all wrong. The secret and unsupported evidence that D'Agostini convinced McGuire to act on and which clearly did not pass the smell test of "reasonable cause" (a policy of the company) amounts, in my view to an illegal act or one without legal justification and as such I find that the second element of the tort has been met. I would also add in support of my conclusion on this point that in taking this action against the Plaintiff Cogeco has breached its own corporate policy of not doing so without there being reasonable cause and then failing to investigate this issue.
108 The third element, involves the consideration of whether Drouillard has suffered an economic loss. In Reach, it was found that without dispute, the Plaintiff had suffered an economic loss when the letter was sent by P.M.A.C. to its members and therefore that Plaintiff met the third element.
109 In the case at hand, there can similarly be no dispute but that the Plaintiff has suffered an economic loss commencing February 2001 when he was first offered a job by Mastec which almost immediately at the threat from D'Agostini, it withdrew. As a consequence, he was placed in a state of limbo and to make matters worse, he suffered a second humiliating experience at the hands of Cogeco in May when he was once again hired by Mastec on its reasonable belief that there would be no objection from Cogeco, and then he had to be re-terminated the following day.
110 On two occasions he had a job and on two occasions it was taken from him. That he has suffered an economic loss is obvious.
111 In my view therefore, he has established the third element of this tort.
112 As noted elsewhere in these Reasons, despite these two embarrassing and demoralizing experiences at the hand of Cogeco, the Plaintiff nevertheless persevered over the next three years endeavouring to find work in his chosen field. It was not until February 2004 that he succeeded securing employment (as a result of which he had to retrain in a completely different field) with C.P.R.
113 But for the tortious conduct of Cogeco, it is reasonable to assume he would have remained employed by Mastec on a full-time basis. This is particularly so, given his exemplary work record at Cogeco before leaving to work in the United States, his highly developed skills level and the very positive professional and technical regard with which he was held by his Cogeco Managers, not to mention the affection from his fellow employees.
114 By analogy to the Gershman v. Manitoba Vegetable Producers Marketing Board, 69 D.L.R. (3d) 114, a decision of the Manitoba Court of Appeal, the damages to which Drouillard is entitled in tort are not for the breach of his employment contract with Mastec, but for the wrongful act of procuring its breach and as a consequence he is entitled to be compensated for all the damages that flow from the tortious conduct of Cogeco.
115 The violation by Cogeco of the Plaintiff's employment agreements with Mastec resulted in damages to him; not remote, but immediate and intended.
116 Given that Cogeco,from the evidence, was by the far the largest fibre optic cable organization in Essex County, there can be little doubt but that such an action would cause immediate and significant economic harm to the Plaintiff.
117 Furthermore, from the evidence it is fair to infer that in taking such an action against Drouillard, Cogeco effectively "blackballed him" and that he would not likely find work with other independent cable technician and installing companies who were also doing Cogeco work.
118 Cogeco had to have known that the Plaintiff would suffer loss of income when it took away his employment opportunities based, from the evidence, solely on the rather dubious input from D'Agostini.
119 One has to assume that the senior management of Cogeco, particularly the Human Resources Director, McGuire, were also alive to the economic loss consequence to the Plaintiff and that's why D'Agostini was counselled and cautioned by McGuire that such interference could be undertaken, but only if there was reasonable cause. Given the Plaintiff's impressive technical and employment background and the manner in which his two employment opportunities with Mastec were cut off, Cogeco has the onus of explanation here and in my view it has not been met.
120 Damages for the tort of inducing breach of contract are said to be "at large". By this is meant that their assessment is "a matter of impression and not addition", per Lord Hailsham, L.C. in the case of Broome v. Cassell [1972] A.C. 1027 at p. 1072.
121 In that case His Lordship stated that the expression "at large" should be used in general to cover all cases where awards of damages may include elements for loss of reputation, injured feelings, bad or good conduct by either party or punishment and where, in consequence no limit can be set in extent.
122 There is no question but that in an appropriate case, an amount exceeding the pecuniary loss can be assessed for the claim in tort. See: Gersham v. Manitoba Vegetable Producers Marketing Board and Jones v. Fabbi (1973) 37 D.L.R. (3d) 27.
123 "At large" damages has also been defined as meaning all cases where "the award is not limited to the pecuniary loss that can be specifically proved". See: Rookes v. Barnard [1964] A.C. 1129 at p. 1226-1227.
124 The Plaintiff also advances a claim for future income loss approximating $800,000.00 from the calculations of the witness Hooper based on the assumption that because his U.S. income in the year preceding his return to Windsor approximated $80,000.00 per annum, he was likely to earn a similar amount upon his return.
125 As I noted earlier, I am not satisfied that a case for future income loss has been made out by the Plaintiff. Although I did hear evidence from the defence to the effect that the London market looked like a better employment opportunity than Windsor, especially after July 2001's cancellation of the 860 Rebuild Project by Cogeco, I was provided with no evidence as to the basis by which one who is as qualified as the Plaintiff might earn income; either from the defence or from the Plaintiff. One would have thought that, for instance, if he had taken up the offer from Messiers Vine and Lacharite to commute to London with all expenses paid together with a drive-rate of $8.50 per hour and, say, he tried this for two or three months, he might be in a better position to assess firstly, what might be the reasonable income expectations from the London market, and secondly, he would be in a better position to assess any adverse consequences of absences from his family in the circumstances which he described at the trial.
126 I have no doubt as to the credibility of his evidence as to the unique family situation he faced but I am mindful of the fact that since commencing employment with C.P.R., he is away from the City for 8 to 10 hours a day. While I did not hear any evidence as to adverse consequences in this context, I am mindful of the fact that in all likelihood his conductor's duties would probably not take him out of town every day in the same way as commuting to London to work in the cable industry would.
127 I am satisfied from the evidence that his last year at Cogeco his income was $59,071.21, which would approximate $4,922.60 per month.
128 From the evidence, it would appear that he would have, but for Cogeco's interference, been able to work for at least 6 months to the point where the 860 Rebuild Project was terminated, and would have earned, therefore, the sum of $29,535.60.
129 I base my finding as to annual income and my calculations from the Plaintiff's evidence of his last year's income as an employee of Cogeco because there was no other evidence before the court as to what he could have been earned either as a direct employee of Cogeco or as an independent contractor employed by Mastec.
130 At the point of the termination of the 860 Rebuild Project in July 2001, the evidence from both sides is quite clear that there was a significant drop in income for technicians of the Plaintiff's calibre in that incomes for technicians and installers were in the range of $35,000.00 to $45,000.00 per annum.
131 Given his exemplary work history and his experience, I find that he would have been able to earn in the upper end of this range and therefore fix his annual income at $45,000.00.
132 The evidence also demonstrates, that his income from C.P.R. when he commenced employment approximated $44,000.00 which is virtually the amount that could be earned by technicians and installers in the cable industry in this area.
133 While it was argued on behalf of the Plaintiff that, but for Cogeco's interference, he would probably have been able to maintain his employment relationship with Mastec during the course of 870 Rebuild Project which was due to commence in September 2004, I had no evidence as to the extent of that project, or the money it would pay either in-house to Cogeco technicians or to the external sub-contractors such as Mastec who would then employ people like the Plaintiff.
134 From the evidence, what we do know however, is the fact that despite a very thorough effort on his part he was not able to obtain employment by way of his C.P.R. job until February 2004, three years after the date of the first cancellation by Mastec as a consequence of D'Agostini's conversation with the company at that time.
135 In February 2004, he elected, understandably, to change his career and as indicated, commenced employment with C.P.R. By the happening of this event, arguably, any claim against Cogeco for further income losses is virtually extinguished by reason of the fact that his projected income after 2001 was $45,000.00 per annum (at least until the commencement of the 860 Rebuild Project in September 2004) and this would leave in effect, no net income loss.
136 Therefore I find that he is further entitled to compensation for his income loss from August 2001 up to and including February 2004, a period of 30 months an annualized income of $45,000.00 which is the sum of $112,500.00.
137 His income loss for the period February to July 2001 of $25,035.00 together with the income loss from the period July 2001 to February 2004 in the sum of $112,500.00 makes a grand total of $137,535.00.
138 This however represents only his pecuniary loss.
139 As I have noted previously from the cases, the damages in question are to be considered "at large" damages which take into account not only the pecuniary, but non pecuniary damages as well, for loss for the humiliation and loss of reputation and most importantly, the loss of his career he suffered. They should also be reflective of the conduct of the Defendant toward him which in my view was malicious and punitive.
140 I also concur with comments of McFarlane J.A. in his Reasons in the case of Vale v. International Longshoreman's and Warehousemen's Union Local 508, [1979] B.C.J. No. 385 at p. 7 where he states that damages for the tort of inducing breach of contract are said to be "at large" and this means that their assessment as Lord Hailsham L.C. stated, "a matter of impression and not addition". In this respect they are similar to damages for libel. The Plaintiff is to be compensated for the invasion of a right and he need not be put to strict proof of specific damage. The court must assess a global figure approximating the harm it thinks he has suffered. It may take into account a number of factors, including any pecuniary loss that has been suffered.
141 As McFarlane J.A. also stated in that case, there is no doubt but that in an appropriate case an amount exceeding the pecuniary loss can be assessed for the claim in tort.
142 In my view, this is an appropriate case to consider "at large" damages, which are in excess of the demonstrated pecuniary loss sustained by the Plaintiff for the reasons to which I have already alluded.
143 In the circumstances therefore reflective of my overall impression of this case and the conduct of various employees and managers of Cogeco, I hereby fix the Plaintiff's damages "at large" (in addition to the pecuniary loss referred to) in the sum of $62,465.00 for a grand total of $200,000.00.
144 There will of course be costs payable to the Plaintiff. In view of the fact that this trial took place prior to the replacement of the Cost Grid, I award costs, on the substantial indemnity scale to lead counsel Mr. Colautti and on the partial indemnity scale to Ms. Landry.
R.C. GATES J.
* * * * *
Corrigendum
Released: July 26, 2005
[1] This shall serve as an Addendum to the Reasons for Judgment in this matter dated July 26, 2005. Paragraph 143 shall be deleted and the following substituted in its place:
[143] In the circumstances therefore reflective of my overall impression of this case and the conduct of various employees and managers of Cogeco, I hereby fix the Plaintiff's damages "at large" (in addition to the pecuniary loss referred to) in the sum of $62,465.00 for a grand total of $200,000.00.
R.C. GATES J.
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