Court of Appeal for Ontario

CITATION: Dziecielski v. Lighting Dimensions Inc., 2013 ONCA 565

DATE: 20130916

DOCKET: C55379

MacPherson, MacFarland and Rouleau JJ.A.

BETWEEN

Jaroslaw Dziecielski

Plaintiff/Appellant

and

Lighting Dimensions Inc., Lighting Dimensions Ltd., Terrance Horner, and David Sacks

Defendants/Respondents

Counsel: Orie Niedzviecki, for the appellant Courtney Raphael, for the respondent

Heard and released orally: September 11, 2013

On appeal from the order of Justice Kevin W. Whitaker of the Superior Court of Justice, dated March 22, 2012.

ENDORSEMENT

[1] The determination of just cause is essentially factual. Here the trial judge found that the employee’s conduct in these circumstances, amounted to serious misconduct despite his unblemished employment record to that point. We see no error, let alone a palpable and overriding error which must be demonstrated on appeal in order to interfere with the trial judge’s finding. The employee here on route back to work in a company vehicle, which he was operating without required authorization at the time, stopped for lunch and drank four beers in an hour. He then got into that company truck, lost control of it, destroyed the truck and sustained serious injuries. He pled guilty to having a blood alcohol reading in excess of eighty milligrams of alcohol in one hundred milligrams of blood. This alone was serious misconduct and the trial judge weighed it with other factors, including the long-term employment relationship between the parties and nevertheless concluded that dismissal was appropriate in the circumstances.

[2] The appeal is dismissed.

[3] Costs will be to the respondent fixed at $11,469.51 inclusive of HST and disbursements.

“J. C. MacPherson J.A.”

“J. MacFarland J.A. ”

“Paul Rouleau J.A.”