Court of Appeal for Ontario

CITATION: Davidson v. Walden 2007 ONCA 262

DATE: 20070416

DOCKET: C44787

WEILER, ROSENBERG and SIMMONS JJ.A.

BETWEEN:

KEITH DAVIDSON, TINER HOMES LIMITED AND 668918 ONTARIO LIMITED

Plaintiffs (Appellant)

And

J. PHILIP WALDEN, WILLIAM FOX, MARTIN BROWN, DORCHESTER GOLF AND COUNTRY CLUB INC., AARON DeFORE HAYTER AND JESSE DeFORE HAYTER

Defendants (Respondents)

Thomas F. Delorey for the appellant

Ronald W. Dickie for the respondents

Heard and Released Orally: April 11, 2007

On appeal from the judgment of Justice Roland J. Haines of the Superior Court of Justice dated December 20, 2005.

ENDORSEMENT

[1] This case turned on the findings of fact. The trial judge found that the appellant refused to take direction from the manager, engaged in angry confrontations with the manager, left on vacation with the keys to the storage area and finally, on June 8, drove the tractor at the manager.

[2] This course of conduct and especially the June 8 incident constituted a sufficient basis for finding that the appellant had engaged in misconduct that was incompatible with the fundamental terms of the employment relationship. That course of conduct fits comfortably within the test relied upon by the appellant being acts wilfully carried out by the employee in defiance of clear and unequivocal instructions of his superior.

[3] We do not accept the appellant’s submission that the trial judge misconstrued the contract. The appellant was under the supervision of the manager and openly and repeatedly defied the manager’s instructions. His belief, even if honestly held, about the interpretation of the contract, did not mean that his acts of insubordination were not wilful.

[4] With respect to oppression, the trial judge found in effect that while there were deficiencies in the conduct of the business, they did not prejudice the appellant’s position. The remedy for oppression is in the discretion of the trial judge. Given those findings of fact the trial judge was entitled to find that this was not a proper case for any remedy.

[5] Accordingly, the appeal is dismissed with costs fixed at $21,342.83 inclusive of G.S.T. and disbursements..

Signed: “K. M. Weiler J.A.”

“Marc Rosenberg J.A.”

“Janet Simmons J.A.”