174 Davenport Road, Toronto, Ontario, M5R 1J2

Beaird v. Westinghouse Canada Inc.

In this matter Ken successfully represented a wrongfully dismissed plaintiff both at trial before the Ontario Court of Justice (General Division) and on appeal before the Ontario Court of Appeal.

The plaintiff, William Beaird, started to work as a motor winder at Westinghouse in June 1988. On November 20, 1989 he injured his back while at work and reported the accident to his supervisor. A report was sent to the Workers Compensation Board (“WCB”) noting that Mr. Beaird was covered under Westinghouse’s income protection plan. He continued to work after his injury and missed only two days.

On April 5, 1990 he was unable to work because he had trouble walking and driving. He began to receive WBC benefits.

On July 26, 1990 he was admitted to hospital and underwent back surgery.

After his surgery he attempted to return to work but was only capable of modified work. Westinghouse, WCB, and Mr. Beaird agreed that he would be retrained as a computer repair technician. The cost for his retraining was to be paid by WCB. Unfortunately, Westinghouse did not have any positions for a computer repair technician. Mr. Beaird could no longer return to work in any capacity, and he was fired in June of 1992. After his firing, Mr. Beaird retrained and obtained a diploma as a computer repair technician. He wanted to return to work at Westinghouse but there were no positions available and he sought work elsewhere.

After his dismissal, Mr. Beaird made a complaint with the Ontario Human Rights Commission stating that he was fit for work and that Westinghouse had failed to accommodate him. As part of his complaint, Mr. Beaird¬† sought long term benefit payments from Westinghouse. Westinghouse’s long term disability insurer, The Mutual Life Assurance Company of Canada would have been responsible for the payment of these benefits.

This matter was partially resolved before the start of trial and the following issues remained:

“2 The issues left to be determined at this trial are the general question of liability and the following questions:
(1) Whether interest is payable by Westinghouse on the amount of $36,000, paid out by Mutual as a lump sum payment in respect of the period April, 1994 to December 1996;
(2) Whether aggravated damages should we awarded in respect of the dismissal;
(3) Whether punitive damages should be awarded in respect of the dismissal;
(4) The term and rate of pre and post-judgment interest; and
(5) Costs.”

Ken won the trial and the Honorable Justice MacDonald awarded Mr. Beaird aggravated and punitive damages and costs:

“38 I shall endorse the record: judgment to the plaintiffs. Aggravated damages fixed in the amount of $15,000. Punitive damages fixed in the amount of $32,000. This adds up to a total of $47,000. Costs to the plaintiff to be on a party and party basis to August 31, 1997 and thereafter on a solicitor and client basis, to be assessed, unless otherwise agreed between the parties. Pre-judgment interest on the aggravated damages is fixed at the full applicable rate of 6.6 percent from August 29, 1994. Pre-judgment interest on the punitive damages is fixed at 3.3 percent from December 1, 1995. Post judgement interest is fixed at the rate of five percent.”

Westinghouse appealed the decision of Justice MacDonald, raising two issues:

“1. Was the respondent entitled to aggravated damages as a result of Westinghouse’s alleged failure to assist him in obtaining long term disability benefits?

2. Was the respondent entitled to punitive damages?”

The Court examined the law on aggravated and punitive damages and set aside the lower Court’s decision in favor of Mr. Beaird. However, the cost awarded to Mr. Beaird as a result of winning the trial were unheld:

“41 Accordingly, I would allow the appeal and set aside the judgment below awarding aggravated and punitive damages. I would allow the appellant its costs of the appeal. I would not, however, interfere with the award of costs below. The trial was necessary and the settlement with the appellant did not take place until all the evidence was in. A cost sanction for the failure to deliver the reports of Dr. Galway was also justified.”

Although Mr. Beaird’s was no longer entitled to aggravated and punitive damages, he was still successful in this lawsuit in claiming long term disability benefits against his former employer and its insurer.

This case serves as a reminder that employers may face serious consequences if they do not make meaningful efforts to accommodate an injured employee. Mr. Beaird retrained as a computer repair technician, but Westinghouse did not have a position for him. This rendered his retaining pointless, unless Mr. Beaird sought work elsewhere.  The law on the duty to accommodate a previously injured employee must be carefully considered when offering retraining programs to an employee on disability.

Full citations:
Beaird v. Westinghouse Canada Inc., 1997 CarswellOnt 6289, 1997 CarswellOnt 6289, [1997] O.J. No. 5630
Beaird v. Westinghouse Canada Inc., 1999 CarswellOnt 846, [1999] O.J. No. 893, 118 O.A.C. 120, 171 D.L.R. (4th) 279