ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Jennings, Janet Wilson and Corbett JJ.
B E T W E E N:
CHARTRIGHT AIR INC.
Plaintiff
(Respondent in Appeal)
- and -
LOUIS DE PAOLI
Defendant
(Appellant)
James F. Diamond, for the Plaintiff (Respondent in Appeal)
James S. G. Macdonald, for the Defendant (Appellant)
HEARD at Toronto: September 25, 2009
JENNINGS J.: (Orally)
1The appellant appeals from judgment of Conway J. dated September 23, 2008, granting judgment to Chartright for $27,641.57 and dismissing the appellant’s claim for damages for constructive dismissal.
2Appellant’s counsel agreed that the standard of review from the decision of a trial judge is that set out in Housen v. Nikolaisen; that is palpable and overriding error on findings of fact and correctness on matters of law. This case was very much fact driven.
3We are unable to accept the appellant’s submission that the learned trial judge erred in placing the onus on Mr. De Paoli to prove that he was constructively dismissed. In Chartright’s action, it was for the airline to show that Mr. De Paoli resigned. This onus was discharged. The evidence that he resigned was overwhelming.
4The issue of constructive dismissal then became Mr. De Paoli’s to prove on a balance of probabilities. It is raised as an affirmative defence in the statement of defence and remained Mr. De Paoli’s issue to prove. We would add that, given the trial judge’s findings of fact and credibility, this case clearly did not turn on the issue of the onus of proof.
5The trial judge applied the correct test for constructive dismissal as established by the Supreme Court of Canada in Forber v. Royal Trust, [1997] 1 S.C.R. 846 (see her reasons at paragraph 30).
6She carefully analyzed the evidence on that issue in paragraphs 32-57 of her reasons. In her analysis, she disbelieved some of the testimony given by the appellant and generally preferred the evidence of the respondent. That was something she was entitled to do.
7After her full analysis of the evidence and a review of the cases upon which the appellant relied, she found in paragraph 82 of her reasons that the appellant “…has failed to discharge the legal burden of establishing that his resignation was constructive dismissal at law.” She did not believe the appellant’s evidence that he resigned due to unaddressed safety concerns.
8No palpable or overriding errors were made in her factual analysis. She correctly applied the law to her findings of fact. The appeal must be dismissed.
COSTS
9I have endorsed the Appeal Book and Compendium. “This appeal is dismissed for oral reasons delivered today. Costs payable to the respondent fixed at $6,000.00”.
JENNINGS J.
JANET WILSON J.
CORBETT J.
Date of Reasons for Judgment: September 25, 2009
Date of Release: October 9, 2009
COURT FILE NO.: 17/09
DATE: 20090925
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Jennings, Janet Wilson
and Corbett JJ.
B E T W E E N:
CHARTRIGHT AIR INC.
Plaintiff
(Respondent in Appeal)
- and -
LOUIS DE PAOLI
Defendant
(Appellant)
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: September 25, 2009
Date of Release: October 9, 2009