COURT OF APPEAL FOR ONTARIO

CITATION: Wasinski v. Norampac Inc., 2016 ONCA 309

DATE: 20160428

DOCKET: C60058

Hoy A.C.J.O., Benotto and Roberts JJ.A.

BETWEEN

Jerzy Wasinski

Plaintiff (Appellant)

and

Norampac Inc.

Defendant (Respondent)

D. Jared Brown and Lauren Findlay, for the appellant

Jordan D. Winch and Julia Bassett, for the respondent

Heard: April 20, 2016

On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice, dated January 21, 2015.

By the Court:

[1] The appellant, Jerzy Wasinski, appeals the dismissal of his action alleging that he was wrongfully dismissed by the respondent, Norampac Inc. For the reasons that follow, we dismiss the appeal.

Background

[2] The appellant had worked as an electrician for the respondent for 21 years before his dismissal. The respondent used a Smart Cart – a machine used to transport work-in-progress material – in its plant. The Smart Cart could operate in manual mode (i.e. with an individual operating it) or automatic mode (i.e. without an individual operating it).

[3] On November 3, 2010, the Smart Cart malfunctioned. The appellant contacted the company that assisted with the installation, repairs, and maintenance of the Smart Cart. Leswald Konczyk, a representative of that company, attended at the respondent’s premises.

[4] Mr. Konczyk told the appellant that the encoders on the Smart Cart were faulty and that it would take a couple of weeks to replace them. Encoders are safety devices that measure the physical speed, direction, and position of the Smart Cart. They were designed to permit the Smart Cart to operate in automatic mode and were added to the Smart Cart in December 2009.

[5] Mr. Konczyk agreed, on the appellant’s suggestion, to re-install software that had been used to operate the Smart Cart before the encoders were added and fully functional. There was no dispute that the effect of re-installing the old software was to permit the Smart Cart to operate in automatic mode without the encoders.

[6] Mr. Konczyk testified that, after installing the old software, he suggested that he and the appellant speak to a supervisor about the change. According to Mr. Konczyk, the appellant told him that he would do so. Exactly what the appellant told his supervisors between then and the morning of November 5, 2010, was in dispute.

[7] On the morning of November 5, 2010, the appellant’s supervisor, Leonard Chopin, saw an email from Mr. Konczyk’s employer stating that the Smart Cart was running on the old software and was in a “semi-safe” condition. He immediately inspected the Smart Cart and found that it was operating in automatic mode without safety encoders. He stopped it and had the switch on the Smart Cart that permitted it to operate in automatic mode disabled.

[8] The respondent’s safety rules specifically prohibited tampering with or defeating any safety device. The trial judge found that the appellant had received extensive and ongoing health and safety training, and that he was aware of these rules.

[9] The respondent summarily dismissed the appellant. The respondent asserted that – in light of a disciplinary record over the preceding three-year period that contained many safety rule violations and progressively serious disciplinary responses, including several suspensions – the appellant’s decision to knowingly by-pass a safety device on the Smart Cart gave it cause to dismiss the appellant.

The Trial Judge’s Decision

[10] The trial judge agreed with the respondent. She accepted the respondent’s evidence illustrating the appellant’s progressive disciplinary record of safety violations and its position that the appellant’s cumulative misconduct gave the respondent cause to dismiss him.

[11] At paras. 36 and 37, the trial judge found that the appellant made the decision to disregard the respondent’s safety standards and did not have the authority to do so without the respondent’s consent. At para. 38, she concluded as follows:

I agree with [the respondent’s] submissions that the [appellant’s] misconduct, considered cumulatively, justifies his termination for cause. The [appellant] knew the applicable safety standards, rules and laws. He received extensive, ongoing health and safety training. He had faced significant disciplinary action in the past for not following the [respondent’s] safety rules, yet his safety violations continued. The evidence shows the [appellant’s] inability or unwillingness to correct his behaviour with respect to observing the safety standards set by [the respondent]. I agree that compliance with safety rules and standards set by [the respondent] is critical. I also agree that, in the circumstances of this case, there cannot be a viable continuing employment relationship with [the appellant]. The [appellant’s] termination for just cause must be upheld.

Issues on Appeal

[12] The law governing dismissal for cause was not at issue on appeal. The appellant argues that the trial judge: (1) erred in relying on a ground for dismissal not pleaded by the respondent in its Statement of Defence or argued at trial; (2) made a palpable and overriding error of fact; and (3) erred in law by failing to resolve contradictions in the evidence.

[13] We address these arguments in turn.

Alleged Reliance on a Ground of Dismissal that had not been Pleaded

[14] In its Statement of Defence, the respondent pleaded that the appellant was terminated for cause as a result of his repeated failure to perform work in a safe and professional manner and for acting contrary to the respondent’s policies and procedures, as well as health and safety legislation. It further pleaded that these repeated failures came despite the respondent’s ongoing training, coaching, and corrective action. The respondent pleaded that on or about November 3, 2010, the appellant knowingly by-passed a safety device on the Smart Cart, placed it into automatic mode, and then advised the respondent that the machine was safe to operate.

[15] The appellant argues that, in concluding that the respondent had cause to terminate the appellant, the trial judge relied on grounds that the appellant had not pleaded. Specifically, the appellant argues that the trial judge relied on her finding that: (1) the appellant had failed to clearly report his actions with respect to the Smart Cart and their effects to a person in charge of the respondent’s plant; and (2) the appellant did not have the authority to change the respondent’s safety standards without the respondent’s consent.

[16] We reject these assertions.

[17] There was conflicting evidence on what the appellant told Mr. Chopin on November 4, 2010. Mr. Chopin testified that the appellant told him that the Smart Cart was operating safely. The appellant, on the other hand, testified that he simply asked Mr. Chopin if he had received an email from the appellant about the problem with the encoders.

[18] At para. 20 of her reasons, the trial judge indicated that she did not need to resolve this conflict in the evidence. It was in the context of addressing this conflicting evidence that she wrote the following: “However, I do find that the [appellant] did not clearly report his actions with respect to the Smart Cart and their effects to a person in charge of the plant.”

[19] The trial judge recorded her reasons for finding that the respondent had just cause 16 paragraphs later, at paras. 36-38, referred to earlier in these reasons. The trial judge’s reasons refer to grounds that were pleaded by the respondent. Moreover, the transcripts of the closing arguments show that the trial judge was clearly alive to the need for the respondent to rely only on grounds for dismissal pleaded in its Statement of Defence. In our view, the trial judge did not rely on the failure of the appellant to clearly report his actions as a ground of dismissal.

[20] The appellant sought to justify his actions by saying that his intentions were good. In responding to that submission, at para. 36 of her reasons, the trial judge stated that the appellant did not have the right to change his employer’s safety standards, even if his intentions were to get the plant running by fixing the Smart Cart. Her statement was responsive to the appellant’s argument. Further, it is clearly implicit in the respondent’s Statement of Defence that the respondent was taking the position that the appellant did not have the authority to make changes to the respondent’s safety standards without its consent. The impugned statement does constitute improper reliance on a ground of dismissal not pleaded by the respondent.

Alleged Palpable and Overriding Error

[21] The appellant argues that the trial judge’s finding, at para. 2 of her reasons, that the Smart Cart was only run in manual mode until December 2009 was a palpable and overriding error.

[22] We reject this argument.

[23] While the appellant testified that the Smart Cart operated in automatic mode before the encoders were installed in December 2009, he also conceded that he knew that the encoders were being added to the Smart Cart as part of a new software program that was designed to allow the Smart Cart to operate in automatic mode.

[24] Mr. Konczyk testified that the Smart Cart ran in manual mode when it used the “old program” and that the encoders were added to permit the Smart Cart to operate in automatic mode. When advised that the appellant said that the Smart Cart operated in automatic mode with the “old program”, he responded that he “didn’t think so”.

[25] The appellant further conceded that Mr. Konczyk’s employer was the “designer” of the Smart Cart and installed the encoders.

[26] In light of Mr. Konczyk’s evidence and the appellant’s concessions, the trial judge’s finding that the Smart Cart was only run in manual mode before December 2009 is not a palpable factual error.

[27] Even if it were a factual error, it was not an overriding error. As the respondent submits, the trial judge’s decision rested on her conclusion that the appellant engaged in misconduct by disregarding the respondent’s applicable safety rules which, after December 2009, required that the Smart Cart was to operate with an encoder when in automatic mode. At para. 36, the trial judge found that the appellant “made the decision to disregard this safety standard and to allow the Smart Cart to operate at a lower safety standard”. That conclusion would not be undermined if the Smart Cart had been operated in automatic mode before December 2009.

Failure to Resolve Conflicts in the Evidence

[28] The appellant testified that Mr. Konczyk left the plant knowing that the Smart Cart had been left to run in automatic mode. However, Mr. Konczyk testified that, on November 3, 2010, he discussed with the appellant that the Smart Cart would be run in manual made, tested the Smart Cart in manual mode after loading the old software, and left thinking that the Smart Cart would be run in manual mode.

[29] The appellant argues that the trial judge committed a legal error by failing to resolve the conflicting evidence of Mr. Konczyk and the appellant about what mode (automatic or manual) the Smart Cart was left in when Mr. Konczyk left the plant on the evening of November 3, 2010.

[30] We disagree.

[31] The trial judge was not required to resolve every conflict in the evidence. In this case, the conflict was not material to her final determination. Even if Mr. Konczyk had left the plant knowing that the Smart Cart had been left in automatic mode, such a finding would not have exonerated the appellant, who was subject to and who ignored the respondent’s safety standards.

Disposition

[32] This appeal is accordingly dismissed. The respondent shall be entitled to its costs of the appeal, fixed in the amount of $25,000, inclusive of disbursements and HST.

Released: “AH” “APR 28 2016”

“Alexandra Hoy A.C.J.O.”

“M.L. Benotto J.A.”

“L.B. Roberts J.A.”