DATE: 20050316

DOCKET: C42036

COURT OF APPEAL FOR ONTARIO

RE:

SIGPRO WIRELESS INC. (Appellant/Defendant) v. EDWARD CHEN (Respondent/Plaintiff)

BEFORE:

DOHERTY, LASKIN and MACFARLAND JJ.A.

COUNSEL:

P. Pooran

for the appellant

Andrew Lister

for the respondent

HEARD & ENDORSED:

March 11, 2005

On appeal from the judgment of Justice Morin of the Superior Court of Justice dated June 1, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The trial judge found as a fact that the purported temporary lay-off of the respondent in February was in fact a termination of the respondent’s employment. He also found that the termination was without notice or cause (para. 12). These findings are fully supported by the evidentiary record and we cannot interfere with them.

[2] On appeal, counsel agreed that it was an implied term of the contract arising out of the nature of the industry that the appellant could dismiss the respondent without notice. This implied term was not pleaded and has no support in the evidence.

[3] The notice period (five months) was within the reasonableness range. Even if the economic circumstances of the appellant are relevant to the assessment of the appropriate notice period, we still regard five months as a reasonable notice period.

[4] The appeal is dismissed. Costs to the respondent on a partial indemnity basis fixed at $10,000.00, inclusive of disbursements and GST.