DATE: 20010917
DOCKET: C33958
COURT OF APPEAL FOR ONTARIO
RE:
GARY THOMPSON (Plaintiff/Respondent in Appeal) v. LEX TEC INC. (Defendant/Appellant)
BEFORE:
CATZMAN, DOHERTY AND GOUDGE JJ.A.
COUNSEL:
Christopher K. Leafloor
for the appellant
Alexander P. Torgov
for the respondent
HEARD:
September 13, 2001
RELEASED ORALLY:
September 13, 2001
On appeal from the decision of Justice J. Bryan Shaughnessy dated February 22, 2000.
E N D O R S E M E N T
[1] In deciding whether the employer had just cause to dismiss the respondent, the trial judge was correct in law in considering the respondent’s misconduct in the context of his overall employment relationship: McKinley v. BC Tel 2001 SCC 38. In the circumstances of this case, that context included the respondent’s employment history with his employer, his relationship with Mr. Foster, his immediate supervisor, Mr. Foster’s role in the relevant events, the actual nature of the misconduct, and the effect, if any, of the misconduct on the employer’s business. The trial judge considered these factors and concluded:
I find that the single instance of poor judgment demonstrated by the plaintiff [respondent] on July 10, 1998 in the context of an otherwise unblemished employment record does not constitute just cause for immediate termination of his employment.
[2] While some might regard this as a charitable assessment of the respondent’s misconduct, we are satisfied that it is an assessment that was open to the trial judge on the facts as he found them.
[3] Counsel for the appellant has challenged various findings of fact made by the trial judge on which he based his ultimate conclusion. We are satisfied that the findings of fact made by the trial judge were open to him on the evidence. We are also satisfied that he made the necessary findings of credibility, either explicitly or implicitly, necessary to support his ultimate conclusion.
[4] The appellant has also challenged the notice period assessed by the trial judge. We are satisfied that the period set by the trial judge was within the range appropriate in the circumstances.
[5] The appellant has also argued that the respondent’s alleged dishonesty in his subsequent dealings with the Unemployment Insurance Commission should somehow have resulted in a reduction of that notice period. We see no error in the trial judge’s finding that there should be no reduction. In coming to that conclusion, we should not be taken to agree with the premise of the appellant’s submission, that is, that the subsequent conduct could somehow result in a reduction of the notice period.
[6] The trial judge’s ruling with respect to costs was within his discretion as set out in Rule 49.10 and we see no reason to interfere with that ruling.
[7] In the result, the appeal is dismissed, leave to appeal costs is granted but that appeal is also dismissed. The respondent is entitled to his costs in this court forthwith after their assessment.
“M.A. Catzman J.A.”
“Doherty J.A.”
“S.T. Goudge J.A.”