Fedorowicz v. Pace Marathon Motor Lines Inc., 2007 ONCA 868

CITATION: Fedorowicz v. Pace Marathon Motor Lines Inc., 2007 ONCA 868

DATE: 20071210

DOCKET: C45004

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., CRONK and LaFORME JJ.A.

BETWEEN:

DEBORAH FEDOROWICZ

Plaintiff/Defendant by Counterclaim (Respondent)

and

PACE MARATHON MOTOR LINES INC. and GEORGE MALLOUK

Defendants/Plaintiffs by Counterclaim (Appellants)

Jerry Herszkopf, for the appellants

Mark A. Klaiman, for the respondent

Heard and released orally: November 30, 2007

On appeal from the judgment of Justice J.R. Sproat of the Superior Court of Justice dated January 31, 2006.

ENDORSEMENT

[1] The appellants appeal from the trial judge’s findings that the respondent was constructively dismissed and that the appellants were motivated by malice in respect of the criminal proceeding initiated by them against the respondent. The appellants submit that these findings are tainted by palpable and overriding error. We disagree.

[2] In respect of the constructive dismissal finding, the appellants maintain that the trial judge improperly anchored this finding in the evidence of Mr. Fedorowicz, a witness whom the trial judge otherwise found to be incredible and partisan. On our reading of the trial judge’s reasons and this record, this argument must be rejected.

[3] As the appellants properly acknowledge, it was open to the trial judge to accept some, all or none of Mr. Fedorowicz’s evidence. The trial judge was entitled, therefore, to accept his evidence as to what transpired in his discussion with Mr. Mallouk regarding Ms. Fedorowicz’s terms of employment, although the trial judge declined to accept Mr. Fedorowicz’s evidence on other issues.

[4] Perhaps more importantly, there was evidence before the trial judge apart from Mr. Fedorowicz’s testimony that supported a finding of constructive dismissal. This included evidence from Mr. Mallouk himself as to the terms of Ms. Fedorowicz’s compensation that was consistent with Mr. Fedorowicz’s claim that Mr. Mallouk unilaterally purported to change Ms. Fedorowicz’s terms of employment. Moreover, when Ms. Fedorowicz wrote to Mr. Mallouk asserting that the terms of her employment had been altered and seeking clarification, Mr. Mallouk failed to respond. As the trial judge indicated, this failure supports an adverse inference against Mr. Mallouk regarding the conditions of employment in issue.

[5] We also reject the appellants’ claim that the trial judge’s finding of malice was not supported by the evidence. Mr. Mallouk commenced criminal proceedings against Ms. Fedorowicz alleging fraud only after she sued the appellants for wrongful dismissal. In so doing, Mr. Mallouk failed to disclose to the Crown or to the police that he had approved some of the very payments in issue in the criminal proceeding. Then, when asked about these payments during his testimony at the respondent’s preliminary inquiry, Mr. Mallouk denied that he knew about the payments or that he had approved them. This was untrue. Finally, even when Crown counsel withdrew the charges, for reasons given by him, Mr. Mallouk sought to persuade the Crown to reconsider through the production of further documents.

[6] In the end, the trial judge’s challenged factual findings are amply supported by the record and are dispositive of this appeal. We see no basis for appellate intervention with them.

[7] The appeal, therefore, is dismissed. The respondent is entitled to her costs of this appeal, fixed in the total amount of $7,570.85, inclusive of disbursements and G.S.T.

[8] The appellants’ request for a stay of this judgment, made at the conclusion of oral argument, is denied without prejudice to their right to seek such a stay on proper motion and associated materials, in accordance with the applicable rules of procedure.

“Dennis O’Connor A.C.J.O.”

“E.A. Cronk J.A.”

“H.S. LaForme J.A.”