DATE: 20031212

DOCKET: C37965

COURT OF APPEAL FOR ONTARIO

RE: DOUGLAS MAIR (Appellant/Plaintiff) –and– RAYMOND AND HELLER LTÉE/LTD. (Respondent/Defendant)

BEFORE: CATZMAN, DOHERTY and LASKIN JJ.A.

COUNSEL: Peter F. Burnet for the appellant

Fay Brunning for the respondent

HEARD: December 9, 2003

RELEASED ORALLY: December 9, 2003

On appeal from the judgment of Justice Jean A. Forget of the Superior Court of Justice dated February 8, 2002.

E N D O R S E M E N T

The Appeal

[1] We accept the proposition that there should be a contextual approach in assessing whether an employee has been dismissed for just cause. The trial judge in this case followed such an approach. He reviewed at length the history of the relationship between the appellant and the respondent that culminated in the termination of the appellant’s employment on September 4, 1999. Following that review, he found (at para. 56 of his reasons) that the appellant had breached the respondent’s policies and directives on a number of occasions and that, “after the events of August and September 1999, [the respondent] was completely justified in dismissing the appellant for just cause”. The events to which that reference applies include the unauthorized posting of a sign by the appellant on the store door that the store was closed “due to owner/management dispute”, the appellant’s fax to the respondent that the entire staff of the Ottawa store had tendered their resignations when, in fact, no such resignations had been tendered, and the appellant’s advice to the respondent that the store had been closed and would remain closed.

[2] We see no error in the trial judge’s conclusion that these incidents, when viewed against the backdrop of the appellant’s prolonged record of insubordination, constituted just cause entitling the respondent to terminate his employment without notice.

[3] The appellant also submitted that the trial judge made factual errors in his review of the evidence concerning the policy breaches and that he failed to consider relevant evidence. We find no material misapprehension of the evidence and are satisfied that the trial judge’s failure to refer specifically to parts of the evidence does not warrant a conclusion that he failed to consider that evidence.

[4] We would dismiss the appeal.

The Cross-Appeal

[5] The respondent seeks leave to cross-appeal the trial judge’s order for the costs of the trial. In his reasons for judgment, the trial judge indicated that, had he awarded damages to the appellant for wrongful dismissal, the amount of such damages would have been $23,358.77. This amount was less than the $25,000 ceiling that then applied to cases that were subject to the Simplified Procedure provisions of Rule 76.

[6] The trial lasted 14 days and a number of witnesses were called. Counsel for the respondent filed a bill of costs, prepared by reference to the costs grid, totalling $113,647.14. In his written decision as to costs, the trial judge specifically considered the nature of the action, the complexity of the case both factually and legally, and the relationship between the respondent’s success as compared with its exposure, and fixed its costs at $60,000, inclusive of disbursements and G.S.T. In our view, that assessment of costs was appropriate in the exercise of the trial judge’s overriding discretion under rule 57.01, and we would not disturb it.

[7] Leave to cross-appeal against costs is granted, but the appeal against costs is dismissed.

Costs in this court

[8] The respondent is entitled to its costs of the appeal, and the appellant is entitled to his costs of the cross-appeal. Having heard the submissions of counsel, we direct that their respective costs be set-off against each other, and we award to the respondent the net figure of $9,000.00, inclusive of disbursements and G.S.T.

Signed: “M.A. Catzman J.A.”

“Doherty J.A.”

“John Laskin J.A.”