Bryczkowski v. Dennison Associates, 2017 ONSC 6384

CITATION: Bryczkowski v. Dennison Associates, 2017 ONSC 6384

DIVISIONAL COURT FILE NO.: 530/16 DATE: 20171024

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

LAURA LOTKA BRYCZKOWSKI

Laura Lotka Bryczkowski acting in person

Appellant ( Plaintiff)

– and –

DENNISON ASSOCIATES

Gillian Howe, for the Respondent (Defendant)

Respondent (Defendant)

HEARD at Toronto: October 24, 2017

L.A. PATTILLO J. (Orally)

1This is an appeal by Laura Bryczkowski (the “Appellant”) from the judgment of Deputy Judge Prattas of the Small Claims Court dated October 18, 2016, dismissing the Appellant’s claim against the respondent Dennison Associates (the “Respondent”) for wrongful dismissal.

Background

2The Respondent is a small patent and trade-mark agent firm with about 13 employees in Toronto.

3On September 22, 2014, the Appellant commenced work at the Respondent as a patent administrative assistant pursuant to a written contract of employment dated September 21, 2014 (the “Contract”). The Contract provided, among other things, for a period of six months’ probation and attached a copy of the Respondent’s current office policy which set out a number of matters including dress, office hours, lunch hour, absences and tardiness, overtime, vacation and sick days. Included in the office policy was a requirement that the office was a scent-free environment.

4On December 2, 2014, two months and 10 days after she commenced employment, and during the probation period, the Respondent terminated the Appellant’s employment because she was having difficulty working with people in the office.

5The evidence at trial essentially focused on three issues that gave rise to the Respondent’s decision that the Appellant was having difficulty working with others in the office: the Appellant’s failure to comply with the Respondent’s no scent policy; the Appellant’s inability to work with the other senior patent assistant, Sarah Hennessy; and the Appellant’s inability to work cooperatively and support the patent agents in the firm.

The Trial Judge’s Decision

6In his reasons for decision, the Trial Judge set out the basic background facts. He then reviewed the facts concerning the Respondent’s position that the Appellant was unsuitable to work in the firm: specifically the issues concerning the Respondent’s no-scent policy and the Appellant’s revising of patent applications. The Trial Judge next reviewed the law justifying an employer’s termination of employment during probation. He noted that the cases described probation as a testing period or a period of tentative employment during which the employer can assess the probationary employee’s suitability to work in harmony with the organization. Relying on the decisions of Jadot v. Concert Industries Ltd., [1997] BCJ No. 2403 (B.C.C.A.) and Markey v. Port Weller Dry Docks Ltd. (1974), 1974 671 (ON SC), 4 O.R. (2d) 12 at para. 63, the Trial Judge held that in the absence of bad faith, an employer is entitled to dismiss a probationary employee without notice and without giving reasons. Finally, the Trial Judge reviewed the evidence based on his summary of the law and stated, at para. 27 of his reasons that he was “unable to conclude that the employer [Respondent] did not act in good faith in terminating the plaintiff [Appellant] in this case. It was open to the defendant to determine in its discretion, acting in good faith, whether the plaintiff was suitable to fit in with the firm and carry out her duties without rancor or disagreement. In my view this is precisely what the defendant did.”

7In reaching that conclusion, the Trial Judge found that the Appellant was given several opportunities to comply with the Respondent’s no-scent policy and failed to do so. He further found that the Appellant was not always ready to follow prescribed office procedures concerning patent applications. Specifically, contrary to instructions, she had changed patent applications in the past, and that given her approach, the Respondent’s assessment that it could not be assured it would not happen in the future was appropriate.

Standard of Review

8On an appeal from a judge’s decision, the standard of review on a pure question of law is correctness. On findings of fact, it is palpable and overriding error. On questions of mixed law and fact, the standard of review is palpable and overriding error unless there is an extricable legal principle in which case the standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31 (SCC).

The Issues

9On this appeal, the Appellant submits that the Trial Judge’s reasons were inadequate and that he failed to consider all relevant evidence.

Inadequacy of Reasons

10Inadequacy of reasons invokes the correctness standard.

11The functions of reasons for decision are three-fold: to inform the parties of the basis of the verdict; provide public accountability; and permit meaningful appeal: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 98

12In determining whether the reasons for decision are sufficient, an appellate court must read the reasons as a whole, in the context of the evidence, the arguments and the trial. The reasons must show what the judge decided and why the judge decided as he or she did. Further, a trial judge is not required to set out every finding or conclusion in the process of establishing the why. See: R. v. R.E.M., 2008 SCC 51, [2008] 3 SCR 3 at paras. 16 – 18 and 35.

13Nor does a judge have to address every contentious issue. In Canadian Broadcasting Corporation Pension Plan v. BF Realty Holdings Ltd., (2002), 2002 44954 (ON CA), 160 O.A.C. 72, [2002] O.J. No. 2125 at para. 114, the Court stated:

Trial judges do not err merely because they do not give reasons for deciding one way or another on each problematic point. The question is whether the trial judge came to grips with the issues and explained sufficiently his or her conclusions and the reasons and basis for them.

14In G & P Procleaners and General Contractors Inc. v. Gore Mutual Insurance Company, 2017 ONCA 298 (Ont. C.A.) at para 28, the Court of Appeal noted that “alleged inadequacy of reasons is not a freestanding ground of appeal”. Notwithstanding, I will address the Appellant’s arguments on adequacy of reasons.

15The Appellant raises a number of concerns with the Trial Judge’s reasons.

16The Appellant submits that the reasons were too short and refers to Cao v. SBLR, [2012] O.J. No. 3328, a decision of the Trial Judge in a prior wrongful dismissal case which was much longer and more detailed.

17Adequacy of reasons is not based on the length of the reasons or the number of pages used. Each case and the issues presented dictate the length of the reasons. What is important is that the chain of reasoning is apparent and that the functions of providing reasons as I have noted above have been dealt with. See: G & P Procleaners , supra, at paras. 26-29.

18The Appellant submits that the Trial Judge did not deal with every aspect of her evidence which was contrary to the Respondent’s evidence. As noted, the Trial Judge is not required to address every point of evidence. In dealing with the issue of bad faith, the Trial Judge focused on the Respondent’s reasons for terminating the Appellant – her failure to abide by the Respondents scent policy and to follow instructions about not revising patent applications. In considering those issues, it is clear from his reasons that he considered the Appellant’s evidence. Further, his conclusion that both incidents occurred was supported by the evidence.

19The Appellant submits that the Trial Judge failed to deal with the contradiction between the Respondent’s concession that it had no quarrel with her work or technical skills and that she altered patent applications. I disagree that there is a contradiction. The Appellant was clearly qualified to do the work assigned; the problem was that she failed to follow instructions to not alter the applications. As the Trial Judge found, the issue lead to inevitable clashes and differences of opinion.

20In looking at the reasons for judgment in this case, when read as a whole, I am satisfied that the Trial Judge addressed the central issue before him - whether the Respondent terminated the Appellant in bad faith and determined that it did not. Further it is clear what the Trial Judge’s reasons were for coming to that conclusion. He considered both the Appellant’s failure to abide by the scent policy and not following instructions in respect of patent applications to be sufficient to establish that the Respondent was acting in good faith in terminating the Appellant’s employment. Further, by addressing the evidence, his factual conclusions and the law in respect of the dismissal of an employee on probation, the Trial Judge’s reasons are more than sufficient to enable appellate review. I therefore dismiss that ground of appeal.

Failure to Consider Relevant Evidence

21The Appellant further submits that the Trial Judge failed to consider relevant evidence. The standard of review in respect of this ground is palpable and overriding error.

22Overall, neither the decision nor the record as a whole disclose a lack of appreciation or disregard for relevant evidence.

23The Appellant’s submissions essentially amount to alleging error on the Trial Judge’s part because he accepted the Respondents evidence rather than the Appellant’s position. I am satisfied from a review of the decision and the evidence that the Trial Judge considered all of the evidence in coming to his conclusion. The Appellant has demonstrated no palpable and overriding error.

24The Appellant takes no issue with the legal principles set out by the Trial Judge in respect of termination of employees on probation. Rather she attacks the Trial Judge’s application of those principles to the facts as found by him. There was evidence to support those findings. The Appellant has failed to establish that the Trial Judge committed a palpable and overriding error.

25For the above reasons, therefore the appeal is dismissed.

26I have endorsed the Appeal Book and Compendium of the Appellant as follows: “For oral reasons given in court today, the appeal is dismissed. Costs to the Respondent fixed at $5,000 in total, with three months to pay.”

___________________________ L.A. PATTILLO J.