Court of Appeal for Ontario

CITATION: Menagh v. Hamilton (City), 2007 ONCA 244

DATE: 20070405

DOCKET: C44379

BEFORE: LABROSSE, LANG and ROULEAU JJ.A.

BETWEEN:

ROBERT MENAGH

Plaintiff (Appellant in Appeal)

and

CITY OF HAMILTON

Defendant (Respondent in Appeal)

Counsel:

Jack F. Fitch and Jay M. Sibler, for the Appellant

Ronald G. Slaght, Q.C. and Nadia Campion, for the Respondent

Heard: March 30, 2007

On appeal from the judgment of Justice Joseph C.L. Scime of the Superior Court of Justice dated October 4, 2005.

ENDORSEMENT

[1] The appellant, Robert Menagh, appeals the judgment of Scime J., dated October 4, 2005, which dismissed his action for wrongful dismissal. The trial judge concluded that the City of Hamilton was justified in its termination of the appellant, without notice.

[2] The issue to be determined on this appeal is whether the trial judge erred in finding that the respondent employer had just cause to terminate the appellant. First, it must be determined whether the appellant engaged in misconduct, and second, it must be determined whether this misconduct warranted his dismissal.

[3] At the outset, there is a finding by the trial judge that the appellant was not a credible witness. This finding is not attacked and is amply supported by the evidence.

[4] The evidence is overwhelming that the appellant did engage in both personal and sexual harassment of Ms. Wilson. He persisted in trying to be in a romantic relationship with Ms. Wilson after she repeatedly told him that she was no longer interested. In order to achieve this end, the appellant communicated with Ms. Wilson’s colleagues, superiors (he tried to have her employment terminated) and family members, as well as with Ms. Wilson directly. He also harassed her by going to her home, watching her in her office and parking beside her car.

[5] The trial judge did not err in finding that on the totality of the evidence, the City had established misconduct consisting of harassment, harassment in the workplace and sexual harassment in the workplace in violation of the City’s harassment policies. Critical to the trial judge's decision, the City had also established misconduct involving retaliation, conflicts of interest, abuse of authority and insubordination that were disruptive of the workplace.

[6] The next question is whether the nature and degree of the misconduct warranted the appellant’s dismissal without notice. As noted by the trial judge, it is clear from McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161, that courts must employ a contextual approach to determine whether just cause exists for termination. In this case, the character of the appellant’s employment is a key factor. The appellant was responsible for labour relations for the City of Hamilton. As such, he was in a senior position that required him to be familiar with all workplace policies (including policies relating to harassment). His misconduct is therefore more serious in light of his particular employment responsibilities. As the trial judge concluded, the cumulative effect of the appellant's misconduct was not reconcilable with sustaining his employment relationship with the City.

[7] The City was justified in terminating the appellant without notice.

[8] We find no error or misapprehension of evidence on the part of the trial judge that would justify interference by this Court.

[9] The appeal is dismissed with costs fixed at $23,344.53, all inclusive.

"J.M. Labrosse J.A."

"S.E. Lang J.A."

"Paul Rouleau J.A."