COURT OF APPEAL FOR ONTARIO

CITATION: DelBianco v. Vrancor Hospitality Corp., 2012 ONCA 62

DATE: 20120130

DOCKET: C53517

Cronk and Blair JJ.A. and Strathy J. (ad hoc)

BETWEEN

Neil DelBianco

Plaintiff (Respondent)

and

Vrancor Hospitality Corp. and SSM 208 St. Mary’s River Inc. operating as Holiday Inn Sault Ste. Marie and Peter Tosh

Defendants (Appellants)

Stephen A. McArthur and Janet M. Callfas, for the appellants

Hugh N. MacDonald, for the respondent

Heard and released orally: January 27, 2012

On appeal from the judgment of Justice E.E. Gareau of the Superior Court of Justice, dated February 22, 2011 and from his costs judgment dated September 20, 2011.

ENDORSEMENT

[1] The appellants challenge the trial judge’s holding in this wrongful dismissal case that the respondent met his obligation to mitigate his damages. They argue, first, that the respondent’s failure to accept an oral “offer” of re-employment from the appellants in January 2009 was unreasonable.

[2] The trial judge considered and rejected this argument. In his reasons, he reviewed the evidence on this issue from all the witnesses called at trial. Having done so, he held that the respondent did not refuse the re-employment offer. Rather, the respondent said that he wanted the offer to be made in writing and wished to speak to his lawyer before making a decision about it, the latter as recommended by the Chief Financial Officer of the appellant companies. The trial judge held that this response was not unreasonable – indeed, that it was the prudent approach to take in the circumstances. We agree.

[3] This court has limited authority to interfere with the factual findings of a trial judge. Absent palpable and overriding error with respect to those findings, appellate intervention is precluded.

[4] We see no palpable and overriding error by the trial judge in his assessment of the reasonableness of the respondent’s response to the re-employment offer. On the contrary, given the history of the dealings between the parties, the circumstances surrounding the making of the offer, and the lack of clarity regarding the respondent’s prospective employment with the new operator of the appellants’ hotel, we agree that the respondent’s conduct was reasonable.

[5] The appellants also complain that the respondent made inadequate efforts overall to obtain new employment and that his failure to attend a job interview for a full-time janitorial and maintenance position with a local school board was fatal. We disagree.

[6] The trial judge described the respondent’s efforts to find new employment during the notice period as “extensive”, “exhaustive” and “diligent”. The record supports that characterization. Given the respondent’s overall course of conduct in aid of mitigation, we agree with the trial judge that he should not be penalized for his perhaps unwise decision to decline to attend one particular job interview.

[7] The appellants also attack the trial judge’s finding of the reasonable notice period. Whether that finding is viewed as 22 months in total or 20 months plus 8 weeks pay on account of the mandatory requirements of the Employment Standards Act, we are not prepared to interfere with the trial judge’s assessment of what constitutes a reasonable notice period in all the circumstances of this particular case.

[8] Nor do we accept the appellant’s various grounds of appeal regarding the costs awarded at trial. The trial judge’s costs reasons indicate that he considered and applied the governing legal principles. He reduced significantly the total costs claimed by the respondent (by almost $26,000). We are not persuaded that he erred in principle in his costs assessment or that his costs award is clearly wrong.

[9] At the end of the day, we view this appeal – in the main – as an effort to relitigate the issues at trial and the trial judge’s factual findings. The high threshold required to succeed on appeal on the latter ground has simply not been met notwithstanding the able efforts of appellants’ counsel.

[10] The appeal, therefore, is dismissed. The respondent is entitled to his costs of the appeal in the total amount of $15,000, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“R.A. Blair J.A.”

“G.R. Strathy J. (ad hoc)”