CITATION: Stone v. SDS Kerr Beavers Dental, 2007 ONCA 543

DATE: 20070726

DOCKET: C45702

COURT OF APPEAL FOR ONTARIO

LASKIN, MACFARLAND JJ.A. and BENOTTO J. (ad hoc)

BETWEEN:

NORMAN STONE

Plaintiff (Respondent)

and

SDS KERR BEAVERS DENTAL A division of SYBRON CANADA LTD.

Defendant (Appellant)

Counsel: Landon P. Young and Nadia Z. Pazzano for the appellant Barry D. Laushway and Scott D. Laushway for the respondent

Heard and released orally: July 19, 2007

On appeal from the judgment of Justice Catherine D Aitken of the Superior Court of Justice dated June 22, 2006.

ENDORSEMENT

[1] The appellant argues four grounds of appeal: (1) The trial judge erred in failing to find that the appellant had just cause to dismiss the respondent, Mr. Stone; (2) The trial judge erred in failing to admit the statement of Tanya Whitteker, who had died before trial; (3) The trial judge erred in awarding a Wallace extension of the notice period; and, (4) The trial judge erred in awarding compensation for lost benefits.

1. Just Cause

[2] The appellant terminated Mr. Stone’s employment because it alleged that he had sexually harassed four female co-workers over a weekend in late February 2004. The trial judge heard the evidence of fourteen witnesses, all company employees, over the course of a five-day trial. She extensively analyzed this evidence and, in thorough and thoughtful reasons, concluded that Mr. Stone did not sexually harass his co-workers. Instead she concluded that he had consumed alcohol at work that led to annoying and harassing conduct, which was non-sexual and not overly serious. The trial judge then found that Mr. Stone’s conduct did not amount to just cause for termination but instead warranted some form of progressive discipline in accordance with the company’s internal policy.

[3] The appellant contends that in concluding just cause of termination did not exist, the trial judge applied the wrong legal test, failed to give enough weight to the seriousness of Mr. Stone’s conduct and failed to assess all the evidence objectively. We reject all these contentions.

[4] The trial judge articulated the correct test for just cause at para. 90 of her reasons. She exhaustively considered all the evidence and concluded, reasonably in our view, that Mr. Stone’s conduct warranted discipline but not dismissal. In so concluding, we are satisfied that she assessed the evidence objectively, weighed it appropriately and made findings of fact that are well supported by the record. This ground of appeal fails.

2. Tanya Whitteker’s Statement

[5] Sadly Ms. Whitteker died in a car accident before trial. The trial judge excluded her written statement because it was replete with hearsay and did not meet the requirements of necessity and reliability. We see no error in this ruling.

3. Wallace Extension

[6] The trial judge did not segregate the period that she awarded for a Wallace extension. However, she awarded thirteen months notice overall for a sixteen-year employee, so the Wallace component must have been small. We are not persuaded that we should interfere with this modest extension.

4. Benefits

[7] The question of Mr. Stone’s entitlement to benefits did not appear to have been seriously contested at trial. We see no basis to interfere with the award.

[8] Accordingly, the appeal is dismissed, with costs fixed in the amount of $15,000, plus G.S.T. and disbursements.

“John Laskin J.A.”

“J. MacFarland J.A.”

“M.L. Benotto J. (ad hoc)”