DATE: 20010820 DOCKET: C34657

COURT OF APPEAL FOR ONTARIO

RE:

KARL E. WESELAN (Appellant/Plaintiff) v. TOTTEN SIMS HUBICKI ASSOCIATES (1997) LIMITED (Respondent/Defendant)

BEFORE:

MORDEN, AUSTIN AND BORINS JJ.A.

COUNSEL:

Catherine M. Patterson for the appellant

John W. Montgomery for the respondent

HEARD:

August 14, 2001

On appeal from the judgment of Justice Gordon G. Nicholls dated June 22, 2000.

E N D O R S E M E N T

Released Orally: August 14, 2001

[1] The trial judge found that, if the appellant had agreed to work in St. Catharines, the working conditions would not be substantially different from those experienced in Simcoe. In our view he erred in reaching this conclusion.

[2] Among other matters, the appellant would have been required to drive an hour and a half before beginning to work and an hour and a half after work, at an annual cost of $34,000 (before tax).

[3] It is reasonable to assume that, while the appellant had to drive as part of his job when based in Simcoe, this driving would be done during working hours and not before reaching work, nor after working hours.

[4] The salary in St. Catharines was to be “the same as in Simcoe”. That, however, is not the end of the inquiry. The cost of driving must be taken into account as well as the appellant’s commuting time. In our view, both the working conditions in St. Catharines and the net remuneration were going to be substantially different.

[5] With respect, the trial judge misapplied the law to the facts as found by him.

[6] There is no merit in the cross-appeal. The trial judge’s finding of constructive dismissal is unassailable. The cross-appeal is therefore dismissed without costs.

[7] The appeal is allowed, the trial judgment is set aside, judgment is granted in favour of the appellant on his claim for wrongful dismissal, and a new trial is directed to determine his damages. The appellant is entitled to the costs of the trial and of this appeal.

“J. W. Morden J.A.”

“Austin J.A.”

“S. Borins J.A.”