Court File and Parties
COURT OF APPEAL FOR ONTARIO
WEILER, BLAIR and ROULEAU JJ.A.
BETWEEN:
JEREMY BELL
(Plaintiff/Appellant)
and
COMPUTER SCIENCES CORPORATION
(Defendant/Respondent)
John D. Dempster for the appellant
Russel W. Zinn for the respondent
Heard and Released Orally: June 13, 2007
On appeal from the judgment of Justice W. J. Lloyd Brennan of the Superior Court of Justice dated April 12, 2006.
ENDORSEMENT
Introduction
1The appellant seeks to set aside the dismissal of his claim for wrongful dismissal.
Analysis
2The appellant argues that he was misled at the outset of his May 8 interview. We disagree. The appellant was put on notice that his employment was in jeopardy if he did not tell the truth. He knew that the content of emails between him and his subordinate was already part of the investigation from his prior discussion with his subordinate. As the trial judge found, contrary to the appellant’s duty to advise his subordinate against lying to the investigators about the content of her computer hard drive the appellant agreed to be a party to her falsehood and maintained the same story in the course of the investigation.
3The trial judge acknowledged that CSC did not follow its own policy in coming to the decision to fire the appellant but held that this case was similar to the Court’s decision in Dowling where the termination was nevertheless upheld although the employer had not followed its own policies. We see no reason to interfere with the trial judge’s conclusion on this point.
4The trial judge correctly applied the McKinley analysis. The dishonesty was maintained by the appellant not just on the day of the investigation but to the day of trial. The proportionality aspect of the McKinley test requires the trial judge to make a finding of fact. The trial judge did so and we must afford that finding deference.
5The dishonesty, lying about the content of emails between himself and his subordinate, and lying about his personal use of company equipment, was work related. While the trial judge found that there was no actual prejudice to the employer from the relationship, the potential for prejudice to the employer is however apparent given the premium placed upon the need for trust amongst managers in CSC’s business.
Disposition
6Accordingly we would dismiss the appeal.
Costs
7Costs to the respondent are agreed at $15,000 all inclusive.
“Karen M. Weiler J.A.”
“R. A. Blair J.A.”
“Paul Rouleau J.A.”