DATE: 20040513
DOCKET: C39551
COURT OF APPEAL FOR ONTARIO
RE:
HOWARD SURES (Plaintiff/Appellant) –and– CALIAN TECHNOLOGY LTD. (Defendant/Respondent)
BEFORE:
CATZMAN, MOLDAVER and GOUDGE JJ.A.
COUNSEL:
Janice B. Payne
for the appellant
Charles V. Hofley and Andrew J. McCreary
for the respondent
HEARD AND ENDORSED:
May 12, 2004
On appeal from the judgment of Justice Michel Z. Charbonneau of the Superior Court of Justice dated January 15, 2003.
A P P E A L B O O K E N D O R S E M E N T
[1] In our view, there was a clear basis in the evidence to make the findings of fact that constituted employee misconduct (see paras. 35-45 of Charbonneau J.’s reasons for judgment), and we can find no palpable and overriding error on the basis of which those findings should be disturbed. Highlighted among those findings are the appellant’s deception of his supervisor, the effect of which deprived the employer of significant sums of money it was entitled to receive, and his use of the respondent’s equipment, space and time to pursue his own business opportunities.
[2] The trial judge’s determination that these rise to the level of cause for dismissal is due considerable deference in this court because the damage done to the employment relationship by this conduct was being evaluated in the context of the trial. The trial judge made no error in the principles of law that he applied, and his conclusion represents a finding of mixed fact and law in which the facts are of paramount importance.
[3] In these circumstances, we need not deal with the question of mitigation.
[4] The appeal is dismissed with costs fixed in the amount of $12,500.00, inclusive of G.S.T. and disbursements.