Court File and Parties

Citation: Qubti v. Reprodux Ltd., 2011 ONCA 651 Date: 2011-10-18 Docket: C51741 Court of Appeal for Ontario Before: Blair, LaForme JJ.A. and Benotto J. (ad hoc)

Between: Elias Qubti, Plaintiff (Appellant) and Reprodux Ltd., Defendant (Respondent)

Counsel: Davit D. Akman and Richard A. Levin, for the plaintiff/appellant Nancy M. Shapiro, for the defendant/respondent

Heard & released orally: October 13, 2011

On appeal from the judgment of Justice Denise Bellamy of the Superior Court of Justice sitting without a jury, dated February 4, 2010.

Endorsement

[1] Mr. Qubti appeals from the judgment of Bellamy J. dated February 4, 2010, granting him damages for constructive dismissal in the amount of $9,462.00 but dismissing his claim for aggravated damages, punitive damages and damages for the intentional inflection of mental distress.

[2] Mr. Akman submits on his behalf that the trial judge erred in law by concluding that the verbal abuse Mr. Qubti suffered at the hands of Reprodux was not the sole cause of his mental distress and therefore, that aggravated damages were not appropriate. He further submits that the trial judge made numerous palpable and overriding errors in arriving at her findings of fact, but that even on the findings she made and on her own characterization of Reprodux’s conduct toward Mr. Qubti, aggravated and punitive damages and damages for intentional inflection of mental distress must follow.

[3] We do not agree.

[4] Bellamy J. heard evidence over a 14 day trial. She formed her opinions as to the reliability and credibility of the witnesses she heard and accepted some, but not all of each witness’ testimony. Her findings were open to her on the record – including her findings that Mr. Qubti tended to exaggerate events and their impact and that Dr. Boyrazian was more of an advocate for Mr. Qubti than an objective witness. She made no palpable and overriding error in her assessment of the evidence.

[5] The trial judge found that Mr. Qubti had been the object of inappropriate verbal abuse in the workplace. She did use strong language to describe why she did not condone it, calling it “objectionable” and “offensive” and at one point “reprehensible”. However, whether the impugned conduct was or was not a direct or contributing cause of Mr. Qubti’s mental distress, would not have affected the result here, in our view. That is because, at the end of the day, the trial judge concluded that while the impugned conduct was sufficient to create a hostile and poisoned work environment justifying a finding of constructive dismissal, it did not rise to the level sufficient to support a separate award for aggravated or punitive damages, or damages for infliction of mental distress. While another judge may have taken a different view of the evidence, these findings were available to the trial judge and we see no error in law or in fact in her determination.

[6] The appeal is therefore dismissed.

Cross-appeal as to costs

[7] Reprodux cross-appeals against the award of $40,000 in costs plus $11,360 in disbursements made by the trial judge in favour of Mr. Qubti. We see no reason to interfere and would not grant leave to appeal.

[8] The trial judge was fully aware of the provisions of rule 76.13(3). Her reasons make clear that she viewed the case as coming within the inception in rule 76.13(3)(b) however, namely that it was reasonable for the plaintiff to continue the proceeding under the ordinary procedure. This was her call.

[9] The cross-appeal is therefore dismissed.

Costs

[10] Taking into account both the appeal and the cross-appeal, costs to Reprodux are fixed in the amount of $12,500 all inclusive.

“R.A. Blair J.A.”

“H.S. LaForme J.A.”

“M.L. Benotto J. (ad hoc)”