COURT OF APPEAL FOR ONTARIO

CITATION: Bellehumeur v. Windsor Factory Supply Ltd., 2015 ONCA 473

DATE: 20150624

DOCKET: C57727

MacFarland, Rouleau and Lauwers JJ.A.

BETWEEN

Fred Bellehumeur

Plaintiff/Appellant

and

Windsor Factory Supply Ltd.

Defendant/Respondent

James A. Renaud, for the appellant

Leonard P. Kavanaugh, Q.C. and Anna M. Vannelli, for the respondent

Heard and released orally: June 18, 2015

On appeal from the judgment of Justice Terrence L.J. Patterson of the Superior Court of Justice, dated August 8, 2013.

ENDORSEMENT

[1] Patterson J. concluded that the respondent was not aware of the appellant’s mental disability and had no indication of such until after he was terminated for cause on November 8, 2005, as a result of violent threats made to fellow employees when he left the place of employment after being disciplined on November 1.

[2] The record supports this finding. The respondent had been accommodating to the appellant for the various “disabilities” he reported to them over time: his alcoholism, his thyroid and cardiac issues. The respondent also permitted the appellant to work in the warehouse as opposed to the counter because he found it less stressful upon returning to work after being off for his reported medical issues.

[3] The trial judge concluded the threats made on November 1, 2005 were workplace violence. The respondent being unaware of the appellant’s mental disability did not engage in discriminatory conduct under the Ontario Human Rights Code when it fired the appellant. They fired him as they would any employee who engaged in such workplace misconduct. In British Columbia (Public Service Agency) v. British Columbia Government and Services Employees’ Union, 2008 BCCA 357 an alcoholic employee was fired for theft. The Court of Appeal succinctly dealt with the issue as follows:

I can find no suggestion in the evidence that Mr. Goodings termination was arbitrary and based on preconceived ideas concerning his alcohol dependency. It was based on his conduct that rose to the level of crime. That his conduct might have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer’s decision to terminate his employment and he suffered no impact for his misconduct greater than that another employee who suffered for the same misconduct.

[4] The appellant’s mental disability, unknown to the employer, at the time he was terminated played no role in the reason the appellant was terminated. He was terminated because he made violent threats against fellow employees.

[5] The trial judge concluded this amounted to just cause for dismissal. The trial judge followed the analysis in the McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161 and Dowling v. Ontario (Workplace Safety and Insurance Board), 2004 CanLII 43692 (ON CA), [2004] O.J. No. 4812 (C.A.) and concluded in the particular circumstances of this case, the employment relationship could no longer exist. We see no basis to interfere.

[6] Accordingly, the appeal is dismissed.

[7] Costs to the respondent fixed at the agreed sum of $15,000.00 inclusive of disbursements and HST.

“J. MacFarland J.A.”

“Paul Rouleau J.A.”

“P. Lauwers J.A.”