DATE: 20030903

DOCKET: C37288

COURT OF APPEAL FOR ONTARIO

RE: RON GIANCOLA (Plaintiff/Appellant) – and – JO-DEL INVESTMENTS LIMITED CARRYING ON BUSINESS AS DA VINCI BANQUET HALL & RESTAURANT, VIN-DEL INVESTMENTS LIMITED CARRYING ON BUSINESS AS DA VINCI BANQUET HALL & RESTAURANT, DEL-GER INVESTMENTS LIMITED CARRYING ON BUSINESS AS DA VINCI BANQUET HALL & RESTAURANT and OCRAM FINE FOODS INC. (Defendants/Respondents)

BEFORE: ROSENBERG, GOUDGE and SHARPE JJ.A.

COUNSEL: Enzo Di Iorio for the appellant

Michael E. Caruso for the respondents

HEARD: August 15, 2003

On appeal from the judgment of Justice Harriet E. Sachs of the Superior Court of Justice dated October 22, 2001.

E N D O R S E M E N T

[1] We are not persuaded that the trial judge erred in finding that the respondents had cause to terminate the appellant. The decision of the Supreme Court of Canada in McKinley v. B.C. Tel., 2001 SCC 38, [2001] 2 S.C.R. 161 appears not to have been drawn to the trial judge’s attention. However, we are satisfied that, especially in paras. 44 to 48 of her reasons for judgment, she carefully considered whether the appellant’s conduct - taking a lengthy vacation with no notice and without arranging a replacement in the face of a clear warning not to do so - was incompatible with his duties and gave rise to a breakdown in the employment relationship sufficient to justify termination for cause. The trial judge carefully considered the many factors in the appellant’s favour, including his lengthy period of service, the lack of formality adopted by the respondents with respect to vacations and warnings, and the failure of the respondents to allege cause at the time of termination, before concluding that the conduct was sufficiently serious to constitute cause for termination. Her findings are entitled to deference on appeal and we see no error that could justify interference.

[2] The appellant submits that the respondents condoned any misconduct on his part. Reliance is placed on the termination letters of September 11, 1998 and October 9, 1998, purporting to terminate him because of restructuring and offering him a period of notice or payment in lieu of notice, and on the fact that, as the trial judge found, the respondents did not actually terminate his employment until October 9, 1998. We are unable to accept that submission for the following reasons.

[3] It has frequently been held that that an employer who first states that an employee is dismissed without cause will not necessarily be precluded from later asserting cause, especially where the employer’s initial position was taken out of concern for the feelings of the employee: see e.g. Matheson v. Matheson International Trucks, [1984] O.J. No. 306 (H.C.J.). The issue is whether or not the employer’s conduct amounts to condonation and, as stated in Tracey v. Swansea Construction 1964 271 (ON SC), [1965] 1 O.R. 203 at 220, (H.C.J.), aff’d 1965 644 (ON CA), [1965] 2 O.R. 182n (C.A.): “Intention is an essential element of condonation.”

[4] The appellant was warned that if he took the vacation on such short notice he should not return to work. Upon his return, he was told that there was no longer a place for him with the respondents and he was given an unsigned letter of termination. As the trial judge found, the respondents told the appellant they no longer had a place for him, but they “did not have the courage to actually throw him out” when he refused to listen. The reasons they gave for the termination, the offer of severance pay and the delay in finally carrying through with their stated intention to terminate the appellant, were found by the trial judge to be acts of generosity and good faith. The respondents’ lack of resolve did not, in the face of their consistent assertion that they wished to terminate the appellant, reflect an intention to condone his misconduct. It certainly would have been preferable for the respondents to have clearly stated that they had cause for termination and that the notice package they were offering was without prejudice to their right to terminate for cause. However, their failure to put their position in these clear terms does not, in our view, support a finding of condonation in the circumstances of this case.

[5] Accordingly, the appeal is dismissed. The parties may make brief written submissions as to the costs of the appeal within ten days of the release of this endorsement.

“M. Rosenberg J.A.”

“S.T. Goudge J.A.”

“Robert J. Sharpe J.A.”