COURT OF APPEAL FOR ONTARIO

DATE: 20050317

DOCKET: C40795

RE:

STEFANO NICOLA DE SANTIS (Plaintiff (Appellant)) and BRIAN MYERS GRIMES INDUSTRIAL PRODUCTS GROUP (Defendants (Respondents))

A N D B E T W E E N

GRIMES ABRASIVES LIMITED, operating as GRIMES INDUSTRIAL PRODUCTS GROUP (Plaintiff (Respondent)) and STEPHANO DE SANTIS and PERFORMANCE ABRASIVES INC. (Defendants (Appellants)) and BRYAN AYLES AND DEREK MOON (Defendants)

BEFORE:

MOLDAVER, GOUDGE AND BLAIR JJ.A.

COUNSEL:

William M. Sharpe

for the appellant Stefano N. De Santis

Connie Reeve and Pauline Wong

for the respondent Brian Myers et al.

HEARD & ENDORSED:

March 15, 2005

On appeal from judgment of Justice Randall S. Echlin of the Superior Court of Justice dated September 22, 2003.

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 that the respondents sought to transfer the appellant to a position entailing some new duties but also found that none were material changes. He further found that this position was intended to have comparable compensation and carry no loss of status for the appellant. Finally the respondents were found to have acted in good faith and in the best interests of the company.

[2] There was ample evidence to support these findings. None of them constitute palpable and overriding errors. There is therefore no error in the trial judge’s conclusion that the appellant was neither dismissed nor constructively dismissed.

[3] While it is not necessary for our decision, we should say that we do not agree with the view that for there to be a constructive dismissal, there must be both a unilateral and fundamental change going to the root of the contract and also an employer intention to end the relationship.

[4] The finding of the appellant’s liability is based on his competing with the respondent company using confidential information, in breach of his duty to the respondents. The extent of such a duty depends on the context, including the employee’s former position, the nature and extent of the confidential information and the resulting risks to the former employer. These were all matters before the trial judge and we see no basis to interfere with either his findings of fact or conclusions of law in connection with them.

[5] The appellant takes no issue with the quantum of damages awarded.

[6] Finally we see no error in the exercise by the trial judge of his discretion in the fixing of trial costs.

[7] The appeal is dismissed. Costs to the respondents fixed at $14,000 inclusive of disbursements and G.S.T.