Court of Appeal for Ontario
Date: 2018-03-19 Docket: C63659
Judges: Simmons and Pepall JJ.A. and Fragomeni J. (ad hoc)
Between
Michael Lemesani Plaintiff (Appellant)
and
Lowerys Inc. Defendant (Respondent)
Counsel
Jordan Lester, for the appellant
Roderick W. Johansen, for the respondent
Heard: March 16, 2018
On appeal from: the judgment of Justice H.M. Pierce of the Superior Court of Justice, dated March 20, 2017.
Appeal Book Endorsement
[1] The appellant appeals from a judgment dismissing his claim for wrongful (constructive) dismissal and related relief. He raises several issues on appeal.
[2] His first argument is that the trial judge erred in finding the employment agreement frustrated. We disagree.
[3] As acknowledged by appellant's counsel, this was essentially a fact-driven question. The trial judge gave lengthy and considered reasons assessing the appellant's many arguments. Among other things, she found there was no evidence supporting his claims of workplace harassment and that, as at the time of the termination of the contract, there was no reasonable likelihood of the appellant's being able to return to work within a reasonable time. On our review of the record, these findings were amply supported and we see no palpable and overriding error.
[4] The appellant also argued that the trial judge erred in failing to find he was constructively dismissed due to the termination of his employment benefits. We reject this argument. Counsel acknowledged that the benefits terminated as of June 30, 2013. However, as found by the trial judge, this was the date on which the employment contract was frustrated. It follows that there was no constructive dismissal through termination of the employment benefits.
[5] The appellant raised a number of other issues which, either he did not plead and therefore were not addressed by the trial judge in her reasons, or which are inconsistent with the trial judge's finding concerning the appellant's inability to return to work within a reasonable time. We reject these claims.
[6] Despite the able arguments made by appellant's counsel, the appeal is therefore dismissed.
[7] Costs of the appeal are to the respondent on a partial indemnity scale fixed in the agreed upon amount of $11,300 inclusive of HST and disbursements.