Court File and Parties

Leach v. IBM Canada Ltd., 2008 ONCA 317

Date: 2008-04-28 Docket: C47094

Court of Appeal for Ontario O’Connor A.C.J.O., Doherty and Armstrong JJ.A.

Between:

Stephen Leach Plaintiff (Appellant)

and

IBM Canada Ltd. and Great-West Life Assurance Company Defendants (Respondents)

Counsel: Barry L. Evans for the appellant Paul V. McCallen for the respondents

Heard and orally released: April 21, 2008

On appeal from the judgment of Justice M.L. Lack of Superior Court of Justice dated April 10, 2007.

Endorsement

[1] After a thorough review of the evidence, the trial judge concluded that the appellant’s failure to respond in any way to IBM’s direction that he file a claim for short-term disability benefits amounted to wilful disobedience of a reasonable direction from his employer. Unfortunately, the trial judge did not provide any reasons for her further conclusion that such misconduct was sufficient to justify the appellant’s termination for cause without notice.

[2] Despite the trial judge’s failure to provide reasons on this material issue, we are of the view that the appeal must fail. The appellant has not satisfied us that the trial judge’s error occasioned a substantial wrong or a miscarriage of justice. Based on the trial judge’s findings of fact to which we defer, we are satisfied that the result at trial would necessarily have been the same.

[3] The findings of fact that lead us to this conclusion include the following:

• By the time of his termination, the appellant had been absent from work for three months. The appellant was medically fit to return to work approximately five weeks before his termination.

• The appellant was dissatisfied with his job at IBM and during his absence from work, he engaged in part-time employment elsewhere.

• Despite repeated requests, the appellant provided only one unsatisfactory note from his doctor to justify his absence.

• The appellant failed to challenge the deadline set by IBM for the submission of his short-term disability application.

• The appellant failed to contact IBM when it was apparent that he would not meet the deadline and failed to take any reasonable steps to meet the deadline.

• The appellant was made aware of the potential serious consequences if he failed to submit the application.

[4] The totality of these facts and the circumstances support a finding that there had been a breakdown of the employment relationship such that dismissal was a proportionate response by the employer. Accordingly, the appeal is dismissed.

[5] Costs are fixed in the amount of $15,000, inclusive of disbursements and GST.

“D. O’Connor A.C.J.O.” “Doherty J.A.” “Robert P. Armstrong J.A.”