DATE: 20020117 DOCKET: C33064
COURT OF APPEAL FOR ONTARIO
RE:
SERENA TABAK (Plaintiff/Respondent) –and– KELLERS SYSTEMS INC., c.o.b. as TRAILER LEASING COMPANY and TRANSPORT INTERNATIONAL POOL, INC. and GE CAPITAL VEHICLE AND EQUIPMENT LEASING INC. (Defendants/Appellants)
BEFORE:
MORDEN, CATZMAN and ROSENBERG JJ.A.
COUNSEL:
Thomas McRae, for the appellant
Richard J. Worsfold, for the respondent
HEARD:
January 14 and 15, 2002
RELEASED ORALLY:
January 15, 2002
On appeal from the judgment of Justice Douglas H. Lissaman dated September 30, 1999.
E N D O R S E M E N T
[1] Mr. McRae made three submissions in support of this appeal:
- The respondent’s refusal to return the balance of the licensing fund was cause for dismissal;
- The respondent was given notice of termination on December 9 and 10, 1997; and
- The notice period awarded was inordinately high.
Dismissal for cause
[2] Lissaman J. found as a fact that the respondent was a good employee who worked hard and well for her employer, and Mr. McRae did not dispute that finding. If her dismissal was for cause, it could arise only from her single act, on the last day of her employment, in refusing to turn over to her employer $2,780 from the licensing fund under her control.
[3] The Supreme Court of Canada has recently held that a single act of dishonesty – in that case, misrepresentation of the employee’s medical status – does not, as a matter of law, in and of itself amount to just cause for dismissal, but rather must be assessed in the context of the relationship between the parties: McKinley v. BC Tel (2001), 2001 SCC 38, 200 D.L.R. (4th) 385. That principle is equally applicable to the present case. Lissaman J. found it “unfortunate that [the respondent] took the position of self-help”, but expressed “some sympathy with the position that she took”. While unquestionably not commendable, her retention of this money was, in context, comprehensible from her perspective and was supported by her solicitor’s advice. In these circumstances, Lissaman J. was not prepared to find that that single act constituted just cause for dismissal. These were findings of fact, and we have not been persuaded that they were unreasonable.
Notice
[4] At trial, the respondent’s counsel invited Lissaman J. to disregard Mr. Templer’s letter of December 9, 1997 and the dinner meeting attended by him, the respondent and her fiancé on the following day. Lissaman J. declined that invitation, but expressed his intention to “pay some attention to those events”. In the end, he concluded that those events indicated to the respondent that things were changing and that her former employer was purchasing the business of Trailer Leasing Company, her current employer, but that it did not constitute notice “within the strict legal sense”. In our view, those findings were reasonably supported by the evidence before him, and we would not disturb them.
Notice period
[5] The respondent was employed by Trailer Leasing Company as its Canadian branch manager, and performed capably in that position, from March 1997 to January 1998, a period of about 11 months. Following her termination, she was unemployed for 6½ months. There is no suggestion of failure to mitigate. Lissaman J., taking into account that (as he found) she had been induced to leave her earlier secure employment for her new position with Trailer Leasing Company, awarded her damages for wrongful dismissal for a 6½ month period. Although on the high side, this period was, on the authorities, within the range of notice awarded to similarly placed employees over similar periods of time and reflected no error in principle, and we do not find it so inordinately high as to warrant intervention.
[6] For these reasons, the appeal is dismissed with costs.
Signed: “J.W. Morden J.A.”
“M.A. Catzman J.A.”
“M. Rosenberg J.A.”