DATE: 20031118

DOCKET: C37507

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., GOUDGE AND SIMMONS JJ.A.

B E T W E E N:

RYAN HOUSTON

Ian A. Johncox for the appellant

Plaintiff/Appellant

• and -

ADVANTAGE CAR & TRUCK RENTALS LTD.

Gerard V. Thompson for the respondent

Defendant/Respondent

Heard: October 7, 2003

On appeal from the judgment of Justice Edwin B. Minden of the Superior Court of Justice dated December 4, 2001.

BY THE COURT:

[1] The written agreement that the respondent made with the appellant on October 7, 1996 authorized it to make deductions from the appellant’s wages for cash shortages it suffered. The respondent acknowledges that persons in addition to the appellant had access to the cash.

[2] Once the agreement was signed, the respondent took the position that it was entitled to make the deductions called for in the agreement. Section 14(2) of the Regulations under the Employment Standards Act, R.S.O. 1990, c. E.14 is to the opposite effect. It provides, inter alia, that no written authorization entitles an employer to make deductions from wages for cash shortages where a person other than the employee has access to the cash. The respondent fairly acknowledged in this court that the written agreement is contrary to the Regulations, although it argued that the breach is merely technical because the respondent had increased the appellant’s wages by the exact amount of the deduction in order to minimize the adverse impact on the appellant.

[3] The appellant indicated to the respondent a few days after signing the authorization that he would no longer agree to the arrangement and could not continue to work under those circumstances. When he did so, the respondent, Mr. Thomas, said, “[F]ine I accept your resignation.” That ended the appellant’s employment.

[4] In our view, it was not open to the respondent to treat as a resignation the appellant’s refusal to work under an arrangement that contravened the Employment Standards Act. The appellant’s refusal was justified in law. Section 14(2) of the Regulations is clear and unqualified and is not confined to circumstances where the employer’s motivation is harsh or malicious.

[5] By treating the appellant as having resigned the respondent effectively dismissed him. The respondent does not assert that there was cause to do so.

[6] Thus we would conclude that the trial judge erred in dismissing the appellant’s claim for wrongful dismissal. We would allow the appeal to that extent. Damages for lost wages are agreed at $1,750.00.

[7] The appellant’s claim for aggravated and punitive damages was dismissed at trial and we would not interfere with that finding in this court. The appellant established no independent actionable wrong and the respondent’s conduct was found to lack the harsh and malicious dimensions that might yield punitive damages.

[8] The appellant also challenges the dismissal of his tort claims for deceit, intimidation, and defamation. All were dismissed based on findings of fact – that the respondent did not act deceitfully or threaten the appellant or say anything that could damage his reputation. We can see no palpable error in these findings and would dismiss these grounds of appeal.

[9] We would therefore allow the appeal to the extent set out in these reasons, set aside the judgment below and grant judgment to the appellant for $1,750.00.

[10] The parties will attempt to settle the costs of the trial and the appeal. Failing that they will file written submissions on these costs within two weeks of the issuing of these reasons.

Released: November 18, 2003 “RRM”

“R.R. McMurtry C.J.O.”

“S.T. Goudge J.A.”

“Janet Simmons J.A.”