DICARLO v. LEONE, LIUNA LOCAL 1089

File No. S1186/00

SUPERIOR COURT OF JUSTICE

ANNA DICARLO

-and-

ROBERT LEONE as representative of the members of the LABOURER'S INTERNATIONAL UNION OF NORTH AMERICA LOCAL 1089

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE DONOHUE on the 31st of May 2002, at SARNIA, Ontario.

APPEARANCES: D.J.C. Elliott - Counsel for the Plaintiff A. Huggins - Counsel for the Defendant

FRIDAY

MAY 31, 2002

UPON RESUMING

...HIS HONOUR THANKS COUNSEL

REASONS FOR JUDGMENT

DONOHUE, J: (Orally) As November began in 1999 everything was going well at Union Local 1089. The elected bosses were attending meetiongs down in Florida secure in the knowledge that the office was in the capable hands of its veteran manager, Mrs. Anna Di Carlo. Their tranquility was shattered by an anonymous letter to the membership. It disclosed confidential information and posed sensational arguments about the bosses. They rushed back to Sarnia and before the month was out Mrs. Di Carlo found herself out the door without a job and without severance pay.

Did the executive have just cause for dismissing her and if not what damages in lieu of notice is she entitled to ? This three week trial has coincerned those two questions.

The Background

In 1985 when Robert Leone got elected as business manager of Local 1089 he and his new executive found the office in a shambles. Having no clerical training themselves they recruited Mrs. Di Carlo who had worked in the office for five years in the 70's. Under her direction the chaos subsided and the office came to be run in a satisfactory manner with additional employees coming in as required.

Not everyone in the labouring community was happy with the way the Local was being run. One Joseph Portiss, particularly, felt aggrieved by much of the policies and conduct of the executive. He waged what could only be described as a one-man war against it. This consisted of civil, criminal and labour board proceedings, media attacks and picketing to mention only a few of his stratagems. One of his sources of documentation was the Local's weekly garbage. Over the years he accumulated from various sources approximately 30, 000 documents to fuel his cause.

November 1999

For his own reasons Mr. Portiss launched a new campaign in November 1999. This took the form of an anonymous broadside mailed to the membership. It referred to unsigned copies of executive paycheques from early September 1998 and then applying some magic math to the figures, extrapolated them to suggest that excessive and unwarranted renumeration was being taken from the Local's funds. The clarion calls to action which concluded the missive were worthy of political manifestos launched to bring down dictatorships.

The embarrassment of this letter brought the executive rushing back from the sunny south to a general membership meeting called for 11th November 1999. At the meeting a resolution was passed calling for the expulsion of any employee responsible for releasing the cheque copies. Mr. Leone wrote the membership on 15th November 1999 promising to root out and deal with the offender. The energies of the executive and staff became fully devoted to investigating the matter. Everythign was checked. Files were turned inside out and theories were developed to coincide with the thin documentary trail. By 22nd November Mr. Leone's suspicions fixed on Mrs. Di Carlo and she was suspended in a rather brusque fashion. The ransacking of the records for a case against her then proceeded in earnest and on the 28th of November she was dismissed without further pay.

The documentary searchfor improprieties continued. The net result of all this digging has been Exhibits 1 to 3 containing hundreds of pages broken down into 181 tabs of documentation, a feat of compilation worthy of Mr. Portiss himself. I refer to the extensive documentary record because it needs to be weighed against the stark fact that until November of 1999 there was no recorded mention of any dissatisfaction with Mrs. Di Carlo.

The allegations of cause are found in paragraph eight of the statement of defence.

a) Unauthorized and improper use of the signature stamp of the Union's executive for her personal benefit;

b) Inappropriate posting of Union dues, including the giving of credit for dues received on behalf of her husband and brother when such dues were not, in fact, received;

c) Inappropriate posting and accounting practices with respect to statements prepared by the Plaintiff;

d) Inapporpriate use of petty cash for the purposes of balancing the ledgers of the Union;

e) The making of inappropriate and unauthorized pension contributions and credits for non-pensionable earnings relating to janitorial income received by the Plaintiff;

f) Uncivil and unbusinesslike dealings with members; and

g) The inappropriate and unauthorized disclosure of confidential information."

Although this seems like an extensive list of pales in comparison to the plethora of allegations made in the course of the evidence. Perhaps too much liberty was allowed the defence to raise improprieties which couldn't possibly be said to fit under any of these seven subheadings. However, the defence evidence is all in and the plaintiff has dealt with each factual allegation in her evidence so I am prepared to deal with the extensive catalogue of allegations as amplified. At times during this trial it seemed that Mrs. Di Carlo was having to defend herself against 20 counts without ever having seen the indictment.

In deciding this case there are two paramount considerations.

1. Onus of proff: On the issue of just cause for dismissal the defence must persuade the court on the balance of probabilities that such cause existed.

2. Credibility: Where a finding of fact depends on the testimony of a witness the court must make a determination with respect to the credibility of that witness. Put another way, the testimony of a witness found to be incredible on a particular fact adds no weight to proving that fact.

There are of course three possibilites with respect to the entirety of a witness' testimony. A court may be led to believe all, some or none of a witness' testimony.

Assessment Of The Witnesses In This Case
In assessing the credibility of the witnesses in this case I have had regard to all the classic criteria applicable to every trial and routinely explained to juries. I have also relied on the experience acquired in 31 years at the bar and bench.

Mrs. Di Carlo
I was very favourably impressed by her evidence. The abiding impact was of an honest, sincere witness who was openly trying at all times to oblige the questioner with her best recollection of what actually happened. She was unfailingly polite and patient in the face of a seemingly endless series of questions.

In that regard it is worth commenting on the uneviable situation of a plaintiff facing allegations of cause in a civil case. Were the allegations being made in a criminal context she would enjoy the right to hear her accusers first before she called upon to defend herself. In the civil context, however, she is required to endure cross-examination before hearing the testimony against her. In that sense the process becomes inquisitorial. I mention this because her candor and frankness were even more remarkable in the circumstances.

Her demeanour was refreshing considering the blizzard of allegations she was facing. There was nothing evasive about her responses. On the contrary she gave the clear impression that she had nothing to hide.

Mrs. Di Carlo was cross-examined for the better part of three days. Throughout that time Ms. Huggins, for the defence, bore down upon her with very mental power. It was clear that extensive preparation by a sharp legal mind had gone into this cross-examination. Mind for mind the witness was not equal to the lawyer. That mismatch, however, merely exemplifies Mrs. Di Carlo's honesty. Were there the slightest flaw in her position it would have exposed. She would have wilted under pressure.

However, as she stepped down from the stand at the end of her week long ordeal I was driven to the conclusion, "There goes an honest woman".

The Defence Witnesses
I was not impressed by their evidence. Consider the matter bias. The positions of Mr. Leone, his new office manager, Mrs. Lataweic, and Mr. Guerette, are all subject to political instability. Unlike the usual situation in which the boss' security is unaffected by the firing of the employee, in this situation the positions of these three could end abruptly if the Union membership were to reject the two men at the polls.

In castigating Mrs. DiCarlo these three witnesses were all protecting their own interest, the preservation of their jobs. This bias shone through in the testimony of all three.

Mr. Leone
In the membership resolution of 11th November '99, Mr. Leone was mandated to find and fire the person responsible for leaking the confidential information that found its way into the anonymous letter. The heat was on him to display prompt action. Having obtained his position in 1985 by turning out the old executive he was fully aware of the potential consequences of not dealing decisively with the situation.

I find that this perspective undermines the reliability of all his testimony with respect to Mrs. Di Carlo. Were he to admit to having authorized some unusual renumeration for Mrs. Di Carlo he would have a tough time explaining it to his rivals in the membership.

Until November of '99 there was not a hint or suggestion recorded anywhere of dissatisfaction with Mrs. Di Carlo's work.

The entire case against her is based on records which were in existence and handled by other in the office including Mr. Leone throughout the time that he was perfectly satisfied with her performance.

His denials of authorizing her salary perks are tainted through and through with his need to appear blameless himself.

I do not accept the evidence of Mr. Leone. Where his evidence conflicts with Mrs. Di Carlo's I prefer hers.

Mrs. Latawiec
I was not impressed by her evidence. Mrs. Lataweic acquired Mrs. DiCarlo's job as a direct result of the firing. She is now loyal partisan to Mr. Leone.

This loyalty displayed itself to an amazing extent in the witness stand. I detected her adding emphatic adverbs to simple answers, thus underlining how strenuously she wanted to make the point. She was also given to going beyond what she was being asked, to taking over the argument from the lawyer. She was in this respect more of an advocate than a witness.

Mr. Leone may well find her to be a reliable assistant. I do not find her to be a reliable witness. Where her evidence conflicts with Mrs. DiCarlo's I prefer Mrs. DiCarlo's.

Mr. Guerette
I was not impressed with his evidence. He is also an elected official of the Local and his position is subject to the same volatility as Mr. Leone's. Mr. Guerette had difficulty giving a simple answer to a simple question. He was prone to make speeches.

He purported to recall extensive dialogues many years ago for which he could specify no particulars and on which he created no written record. I do not accept his recollections. Where his evidence conflicts with Mrs. Di Carlo's I prefer hers.

MR. Latawiec
I was not impressed with his evidence. As the husband of Mrs. Latawiec I found his evidence infected by the bias to support her evidence.

He projected a cocky, if not disdainful, attitude to the serious role of a witness. This was apparent in his body language and tone. The clear impression he conveyed was that he considered the whole process a waste of his valuable time. I do not accept the evidence of Mr. Latawiec. Where it conflicts with the evidence of Mrs. Di Carlo I prefer hers.

Conclusions Respecting Credibility
I accept the evidence of Mrs. Di Carlo. I do not accept the evidence of Mr. Leone, Mrs. Latawiec, Mr. Latawiec or Mr. Guerette. Where the evidence of the defence witness's conflicts with the evidence of Mrs. Di Carlo I prefer hers.

Turning now to specific allegations. I turn back to the statement of defence, paragraph eight. I will deal with these in a different order from which they are set out in paragraph eight.

"f) Uncivil and unbusinesslike dealings with members."

There was not a shred of evidence for this scurrilous accusation. This allegation is without foundation.

"d) Inappropriate use of petty cash for the purposes of balancing the ledgers of the Union."

This accusation was abandoned late in the proceedings. There was nothing to support it.

"g) The inappropriate and unauthorized disclosure of confidential information."

I find as a fact that Mrs. DiCarlo did not disclose any confidential information.

It is plain and obvious that Joseph Portiss, the Local's "Bette Noir" obtained documents by sifting the office garbage. Quite likely he used other means and allies to assist him in his crusades to topple the management. I am not persuaded that Mrs. Di Carlo assisted him in any way whatsoever. A fanciful theory has been posited by the defence that Mrs. Di Carlo aided and abetted Portiss' schemes in order to somehow advance the political ambitions of her brother, Mr. Iafrate. Such speculation is nonsense ‚ the stuff of conspiracy novels.

Throughout this trial there has been an unanswered question: What possible motive could Mrs. Di Carlo have for undermining the stability of the Union Hall ? None has been shown.

Considerable time and energy has been expended by the defence on the cheques disclosed by Portiss. The attempt has been to persuade me on the basis of everyone's whereabouts during the time in question that only Mrs. Di Carlo had the exclusive opportunity to release the cheques to Portiss. I am not persuaded.

As in much of the defence evidence the witnesses were clearly attempting to recreate memories of what must have happened based on scraps of documentation that were available 15 months later.

Mrs. Di Carlo says she had nothing to do with it. I believe her. This allegation is without foundation.

"a) Unauthorized and improper use of the signature stamp of the Union's executive, for her personal benefit."

This seems rather frivolous allegation. Clearly the Local's executive were so busy that they required signature stamps and an assistant, Mrs. Di Carlo, with authority to use them. Mr. Leone claims long after the fact that in all the countless numbers of times the stamp was used there were a few instances when she acted without authority.

The only evidence I accept with respect to use of the stamp is Mrs. Di Carlo's. She testified that on all occasions she had authority. I believe her. This allegation is without foundation.

"b) Inappropriate posting of Union dues, including the giving of credit for dues received on behalf of her husband and brother when such dues were not, in fact, received."

There was not a shred of evidence with respect to the dues of her brother. Perhaps this allegation was in line with adage, "if you throw enough mud, some of it's gonna stick". This allegation is without foundation.

With respect to her husband's dues it is alleged that on one occasion in April of '99 Mrs. Di Carlo jiggered the records and the computer to show that Mr. Di Carlo had paid $38 dues whereas no cash was received.

She has sworn that she didn't do any such thing. I believe her.

The defence evidence on this point was a torturous trek through a jungle of receipt cards, computer programming, daily journals and petty cash overages all with a view to bringing me into a clearing of certainty that Mrs. Di Carlos must have cheated the system for her husband's benefit.

Whatever happened on that occasion was from furtive clandestine act by Mrs. Di Carlo. Records were created. The bookeeper and the computer programmer were both involved.

I am completely satisfied that this episode was nothing more than a routine complication with record keeping that required the assistance of others to rectify. Such incidents occur regularly in day to day business. The defence has elevated clerical error to the level of dark conspiracy to defraud. I reject such interpretation utterly. This allegation is without foundation.

"c) Inappropriate posting and accounting practices with respect to statements prepared by the Plaintiff."

On its face it is difficult to understand what this refers to. Although there is no mention in the statement of defence of RRSP's and their treatment there was considerable evidence led on the subject so I will deal with that evidence under this allegation.

Three members of the Di Carlo family had an RRSP account with the Union. Mrs. DiCarlo, Mr. Di Carlo and their daughter Cindy Di Carlo. A variety of alleged irregularities were unearthed concerning Mrs. Di Carlo's handling of these accounts. I take it that the pleading herein was meant to as follows:

1. The opening of Cindy's account was not authorized as she was a non-member.

2. Incoming funds from Mr. Di Carlo's employers were wrongly directed to Mrs. Di Carlo's RRSP.

3. False credits were allocated to Mrs. Di Carlo's RRSP when no funds were sent.

4. Direct deposits were improperly made by Mrs. Di Carlo to her RRSP.

5. In order to repay a loan Mrs. Di Carlo had once made to Mr. Di Carlo funds belonging to him were redirected to her RRSP.

As this allegation was never pleaded I am unsure whether the foregoing subheadings cover all the allegations or not. The strategy of the defence seems to have been to throw up every possible impropriety at trial regardless of their pleadings.

Mrs. Di Carlo has testified that she had Mr. Leone's authority to make the RRSP transactions in question. I believe her. Mr. Leone has testified she did not. I don't believe him.

MR. Rickert, the forensic accountant of the defence, in paragraph two, three and four of his findings, Exhibit 20 states:

"No additional funds were diverted from the Labourers Union Local 1089 (Sarnai) by Anna Di Carlo by these actions."

Given these conclusions by Mr. Rickert I am perplexed to understand what all the fuss was about.

No evidence from RRSP fund manager or Union officials outside Local 1089 was called to establish any harm caused by Mrs. Di Carlo's actions. This allegation is without foundation.

"e) The making of inappropriate and unauthorized pension contributions and credits for non-pensionable earnings relating to janitorial income received by the Plaintiff."

In 1994 Mrs. Di Carlo took on the janitorial duties at Mr. Leone's request. She would do these at the end of her working day and on the weekend. It is interesting to note in passing that according to Linda Latawiec Mrs Di Carlo took only one week vacation between 1994 and 1999. In return for taking on the janitorial chore Mrs. Di Carlo was paid $300 per month.

To delineate the allegation in this regard I will quote finding number one of Mr. Rickert at Exhibit 20 and insert the adverb allegedly before his conclusive word overstated. His finding number one accordingly would read as follows:

"Anna Di Carlo allegedly overstated her wages by including the amounts received for janitorial services for purposes of calculations of gross wages for the 17% and 12% pension contribution. Anna Di Carlo created receipts for herself for voluntary RRSP contributions to the Group RRSP. We were not able to locate any documentation to support these contributions to Clarica."

"The janitorial services and RRSP contributions allegedly overstated the 17% (and 12% after 1994) contribution to the pension plan. Anna Di Carlo also allegedly overstaed her gross payroll for purposes of the 5% set aside in a similar manner to what was calculated for the pension plan. As seen on Schedule 1, the total net over contributions for the pension and payments set aside from 1994 to 1999 is $3, 866.18."

In other words it is alleged that by improperly treating the janitorial income as wages she gained an inappropriate contribution from the Local to the pension and set aside funds. The value of this over five years was $3, 866.18. Mrs. Di Carlo swears that this treatment of her janitorial income was approved by Mr. Leone from the outset. I believe her. Mr. Leone says it was not. I do not believe him. For at least a two year period after the attribution was in place Mr. Leone received on a monthly basis a handwritten summary from Mrs. Latawiec which showed which amounts the pension contribution for each employee was based upon. Mrs. DiCarlo's $300 was there for him to see on the same page as his own pension contribution. I find that he saw the figures and made no inquiry about them because he had authorized the procedure in the first place. It is completely disingenuous of Mr. Leone to pretend that in 1999 this was a startling discovery to him. Perhaps it is politically expedient for him to react in this fashion. It is not honest. I refer to Exhibit 6, tab four, page two, which is an example of the figures for March of 1997. On a full eight by five piece of paper in Linda Latawiec's handwriting, as I understand it, we see a column of names of the people from the Union Hall, Mr. Leone, Mr. Vani, Ms. Di Carlo, Ms. Latawiec and Mr. Guerette. About three inches away from Mr. Leone's figures, and very legibly, are the figures for Anna Di Carlo and there shows the $300 on which she was ascribed a pension attribution.

It is worthy to note that although all the cheques also had to be signed by Mr. Vani who would be presumably also shown the supporting calculations, the court has not heard from Mr. Vani.

I find as a fact that these contributions were a modest increment to Mrs. DiCarlo's renumeration which was authorized by Mr. Leone. At least Mr. Leone, Mrs. Latawiec and Mr. Vani knew about it because they were all handling the documents. This allegation is without foundation.

In summary then, until Mr. Portiss sent his package of vitriol out to the membership Mrs. Di Carlo was performing her duties without criticism in a fashion beyond reproach. The embarassment of the letter led to the 11th November '99 member's resolution to fire whomever was responsible. The search for a culprit began in earnest. Regrettably unsubstantiated theories of conspiracy led to Mrs. Di Carlo being scapegoated. Without any hard evidence that she was responsible for the documents in the letter the office was ransacked to find other evidence against her. Distant memories were reshaped to fit the documents uncovered and by the end of a couple of weeks her 15 year career of service was abruptly terminated. The defence has the burden of persuasion on the balance of probabilities that there was just cause for dismissal. It has failed to meet that burden. There was no juust cause for dismissal.

I turn now to the assessment of damages. What is required here is to establish a notice period that would be fair. I have regard to the usual factors, which are set out in the classic Bardal case.

Mrs. Di Carlo is 53 years of age now. Shw was experienced in the clerical workings of a Union Hall, quite experienced in that area of pursuit, but inexperienced in other types of business settings. Her total of 20 years experience with Local 1089, when adding together her original five years plus the later 15 years, would equip her with expertise only in working inside a Union Hall. Some of her skills are transferable to toher types of businesses, but primarily the skills she acquired would be useful to the management of a Union Hall.

She characterized her position in her own words rather humbly. She said that she was the office manager in name only. On the other hand the defence characterized her in glowing terms at paragraph four of the statement of defence this way :

"As office managerr, the Plaintiff was reposed with the utmost trust and confidence, having significant discretion and authority over confidential information, security, finances and accounting."

So, the situation for me is rather unusual. The defence has poited her qualifications at a higher level than she has herself. She had 15 years service as of 1999. It is important to note that she rescued this raw executive with no experience whatsoever in their time of dire need. In 1985 this group were just elected to fill the responsibilities of the executive and they desperately needed someone who knew something about the runnings of the office and she came to their rescue. She was paid for it, but it was a rather unique way of taking on a job. I find her position can be characterized as something between senior clerical and junior management. Some of her responsibilities involved opening and closing the office for everyone else, dealing with all the members with respect to the payment of their dues and the assignment to jobs.

I have considered the list of cases referred to me by each side with respect to the appropriate notice period. I won't read the schedule of their list but those are available to anyone seeking the reasons for this judgment. The case of Minott in the Ontario Court of Appeal deserves special consideration. In that case Mr. Justice Laskin referred to the oft sited passage of Chief Justice McRuer in the Bardal case and that passage reads as follows:

"There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant, the age of the servant and the availability of similar employment, having regard to the experience training and qualifications of the servant."

Applying all those factors to the unique circumstances of Mrs. Di Carlo's position I find that an appropriate notice period is 13 months. I will come to the subject of a Wallace extension on that in a moment, but first I wish to deal with the subject of mitigation. The defence has urged upon me that Mrs. Di Carlo did not make sufficient efforts to maintain other employment so as to minimize the damages. I am satisfied with her efforts. Tab nine of Exhibit 5 is a list of all the places she attempted to get work with. I keep in mind the personal devastation she was experiencing at the way she had been treated. She found a position about eight months after she had been fired. I reject the defence arguments in this regard. Considering the blows to her self-esteem in the manner of her sacking, she made courageous efforts to re-establish herself.

I turn now to the Wallace principle regarding extension of notice period. I will read now from paragraph 95 of the Supreme Court of Canada decision. The citations for these cases are available. It reads as follows:

"The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need of protection. In recognition of this need, the law ought to encourage conduct that minimizes the damage and dislocation (both economic and personal) that result from dismissal. In Machtinger, supra, it was noted that the manner in which employment can be terminated is equally important to an individual's identity as the work itself (at p. 1002). By way of expanding upon this statement, I note that the loss of one's job is always a traumatic event. However, when termination is accompanied by acts of bad faith in the manner of discharge, the results can be especially devastating. In my opinion, to ensure that employees receive adequate protection, employers ought to be held to an obligation of good faith and fair dealing in the manner of dismissal, the breach of which will be compensated for by adding to the length of the notice period."

I also rely upon a passage in the Marshall v. Watson case, which has just been reported in the Ontario Reports. And here again Justice Laskin of the Ontario Courts of Appeal states as follows, and these are paragraphs 35, 36 and most of 37:

"Wallace established that when an employer dismisses an employee, it is obliged to deal with the employee fairly and in good fiath. Breach of that obligation may be compensable by extending the period of reasonable notice to which the employee is otherwise entitled. Underlying the employer's duty of good faith and fair dealing is the recognition that employment relationships differ from other commercial relationships because of the importance of work to a person's dignity and self worth and because of the power imbalance between the parties and the corresponding vulnerability of the employee. And employees are most vulnerable and most in need of protection when they are dismissed."

"Yet for many employees, the way they are dismissed is as important as the fact of their dismissal. Losing one's job is traumatic enough; when an employer compounds that loss by acts of bad faith and unfair dealing, the employee's self-esteem may be devasted. Thus, in colloquial terms, Wallace is a call for employers not to play hard ball with employees when dismissing them."

"To ensure that employees are adequately protected, a court may extend the notice period to compensate a dismissed employee for the intangible injuries to the employee's dignity and self-worth caused by the employer's unfair or bad faith manner of dismissal. Although showing an adverse effect on future job prospects would be a period, employees may be awarded an extension even if the unfair way they were dismissed did not adversely effect their ability to find other work."

I find that the defendants proceeded with extreme bad faith. The plaintiff was sacrificed on the altar of political expediency. The Union membership being such politicalized organization she has borne the brunt of being dumped as a paraiah by the elected executive. They acted in self-preservation following the classic lifeboat syndrome. If the boat is overloaded throw the weakest overboard. I have described the history of this firing in some detail and will characterize it no further. The plaintiff is entitled to a further three months notice by reason of the bad faith conduct of the defendants. Her total notice period, therefore, runs to the end of March 2001.

It is my ruling that until March 31st 2001 her pay should be calculated exactly as it was until her dismissal. This was her deal with Mr. Leone and she is entitled to the terms of the deal until the end of a reasonable notice period. Mr. Elliott's calculations of 30 May 2002 incorporate these terms and limit vacation pay to eight weeks as per statute. I do not accept the defence submissions that various componets of the calculations such as the $300 per month or the pension contributions thereon should be excluded. My decision is that these componets had always been a part of her renumeration package and severance pay is to be calculated in accordance with that package. As I read the schedule the appropriate figures for the end of March 2001 are $ 62, 335.40 from which must be subtracted the money earned on the other jobd of $10,379.79 leaving a net figure of $51,955.61. There will accrodingly be judgment for $51, 955.61. If there is a continuing dispute over these calculations counsel may arrange to reconvene the court before the formal judgment is taken out at which time I will hear a chartered accountant's evidence and re-determine the amount.

The plaintiff is entitled to interest in accordance with the Courts of Justice Act on her judgment. She is also entitled to costs which I will fix. The counterclaim is dismissed. It is my intention to fix costs in such a way that Mrs. Di Carlo's net recovery will not be reduced by her substantial expense in bringing this action.

Now, as I draw a breath, would counsel like to inidcate to me what their position is with respect to costs? But before I do that I am going to hand this letter of May 30, 2002 of Mr. Elliott to Madame Clerk and would make that an exhibit to this proceeding?

CLERK OF THE COURT : Exhibit 26.
THE COURT : All right. Exhibit 26.

EXHIBIT NUMBER 26: Letter from Mr. Elliott dated May 30, 2002
- Produced and marked.

SUBMISSIONS ON COSTS

COURT ADJOURNED


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