Ontario Civil


Contracts

PERFORMANCE AND BREACH
Failure of management not directed toward employee but toward company itself

Defendant was wholesaler and distributer and plaintiff was sales representative with income on commission basis. Defendant had National Standing Offer (“NSO”) in order to supply equipment to Borden that was historically renewed on annual basis. Defendant failed to renew NSO. NSO slipped through cracks. Plaintiff was former employee of defendant. Employment contract did not guarantee specific levels of sales to Borden. Defendant and plaintiff lost Borden sales for nine months. Plaintiff claimed loss of income during specified period. Plaintiff claimed negligence of defendant’s management caused plaintiff losses. Action was dismissed. Failure to renew contract NSO was not breach of contract by defendant. Failure of management was not directed toward employee but toward company itself. Where loss was to profitability of employer, it would take some argument to convince court to extend employer’s duty of care to employee. Plaintiff did not adequately prove losses.

Lochran v. Duro-Test Canada Co. (Jan. 31, 2013, Ont. S.C.J., E.M. Morgan J., File No. 06-CV-324305PD1) 228 A.C.W.S. (3d) 297.

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