Court File and Parties
COURT FILE NO.: 590/06 DATE: 2008-07-08
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Before: Chapnik, Ferrier and Swinton JJ.
BETWEEN:
Sean Beard Plaintiff/Respondent
- and -
Suite Collections Canada Inc. Defendant/Appellant
Counsel: Kevin Fox, for the Plaintiff/Respondent Jane E. Sirdevan, for the Defendant/Appellant
HEARD at Toronto: July 8, 2008
Oral Reasons for Judgment
CHAPNIK J.: (Orally)
[1] The appellant, Suite Collections Canada Inc., appeals from the judgment of Thorburn J., dated November 6, 2006, granting the respondent damages for wrongful dismissal and costs.
[2] The respondent was employed as Manager of Legal Collections for the appellant at the time of his dismissal from the company on February 7, 2005. While the respondent claimed at trial that he was wrongfully dismissed, the appellant contended that he was dismissed for just cause.
[3] The parties agree that the appropriate standard of review is as set out by the Supreme Court of Canada in Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577. The general rule is that where the issue on appeal involves a question of mixed fact and law, as this does, and the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.
[4] After a comprehensive review of the evidence, the learned trial judge found, in summary, at page 9, paragraph 66 of her reasons that “only the claims of racial and sexist slurs, loss of at least one possible business opportunity and breach of the Company email policy, can be supported on the evidence”. She particularly noted at pages 10 and 11 that in the case of the racial slurs, an employee overheard a conversation that took place with an unknown party; that there was no evidence that the company’s email policy was enforced; and that although Mr. Beard, the respondent, did fail to follow-up on at least one business opportunity, he was generally regarded by his employer as a diligent worker, and the precise reasons for failing to follow-up on the business opportunity were not canvassed at trial.
[5] Turning to the law, the trial judge set out the legal test for wrongful dismissal enunciated in McKinley v. B.C. Tel. 2001 SCC 38, [2001] 2 S.C.R. 161 at paragraphs 33-4, 39 and 53. At paragraph 53, Iacobucci J. stated:
“An effective balance must be struck between the severity of an employee’s misconduct and the sanction imposed. The importance of this balance is better understood by considering the sense of identity and self-worth individuals frequently derive from their employment”.
[6] Applying these principles and a contextual approach, Thorburn J. found no just cause for the respondent’s summary dismissal, stating at para. 72:
“While I find the behaviour of Mr. Beard to be inappropriate, particularly given his role as a supervisor, he should have been given a clear warning that his behaviour was unacceptable and would not be tolerated”.
[7] She refused the plaintiff’s request for Wallace damages, assessed his damages at $13,525.00, representing three months pay in lieu of notice, (net of mitigation earnings) and awarded him $10,000.00 in costs.
[8] We find no palpable or overriding error in the judge’s findings of fact, and no error in principle or in her application of the law. What the appellant is asking us to do is, in effect, to retry the case.
[9] In our view, the trial judge’s decision was well-reasoned and amply supported by the evidence.
[10] Accordingly, this appeal is dismissed.
COSTS
[11] I have endorsed the Record as follows: “In accordance with oral reasons given this day, this appeal is dismissed with costs to the respondent in the all-inclusive sum of $6,000.00.”
CHAPNIK J.
FERRIER J.
SWINTON J.
Date of Reasons for Judgment: July 8, 2008 Date of Release: July 11, 2008
COURT FILE NO.: 590/06 DATE: 2008-07-08
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Before: Chapnik, Ferrier and Swinton JJ.
BETWEEN:
Sean Beard Plaintiff/Respondent
- and -
Suite Collections Canada Inc. Defendant/Appellant
ORAL REASONS FOR JUDGMENT
CHAPNIK J.
Date of Reasons for Judgment: July 8, 2008 Date of Release: July 11, 2008