Court of Appeal for Ontario

Date: 2017-12-07 Docket: C63459

Judges: Strathy, C.J.O., Juriansz and Huscroft JJ.A.

Between

Peter Chhina Plaintiff (Appellant)

and

Commercial Spring & Tool Company Limited Defendant (Respondent)

Counsel

Howard Markowitz, for the appellant

Maurice J. Neirinck, for the respondent

Heard: December 5, 2017

On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice, dated February 7, 2017.

Reasons for Decision

[1] This is an appeal from the trial judge's decision dismissing the appellant's action for wrongful dismissal.

[2] The appellant worked for Commercial Spring & Tool Company Ltd. for over 21 years, rising to the position of general manager of its heat treating division. He reported to Gurmail Gill, the General Manager of operations, who in turn reported to Frank Martinitz, the company president.

[3] The trial judge found that the appellant quit his employment on January 22, 2010. She rejected the appellant's evidence that he had taken a leave of absence to wind up his father's estate in India. The appellant submits that she erred in doing so, and erred in failing to address the appellant's alternative argument that he had resiled from any such resignation in any event.

[4] We disagree.

[5] The trial judge accepted the evidence of Gurmail Gill that he was told by Frank Martinitz, in the appellant's presence, that the appellant was quitting and asked to take care of it. The trial judge stated that Gill's evidence was unchallenged and uncontradicted, but the appellant says that is in error: he denied Gill's account in his testimony.

[6] The trial judge made no error in this regard. Read in context, her point was that Gill's evidence was not challenged by the appellant in cross-examination. The trial judge was entitled to accept Gill's evidence in support of her conclusion that the appellant had resigned. This conclusion was supported by a wealth of circumstantial evidence that was not contested. We list some of it here:

• the appellant's final pay cheque included vacation pay;
• a record of employment was prepared showing that he had quit;
• his benefits were terminated on January 23, 2010;
• in defending the respondent's small claims court action for repayment of a loan of $10,000, the appellant pleaded that he had resigned his position;
• the appellant did not leave for India until March 16, 2010;
• although the appellant returned to Ontario on April 26, 2010, he did not inform the respondent that he had returned until August 2, 2010; and
• at no point did the appellant seek to return to work.

[7] This evidence provides ample support for the trial judge's conclusion that the appellant had resigned.

[8] The appellant's arguments in this court are, in essence, an attempt to retry the case. That is not the function of this court on appeal. The court cannot intervene in the absence of a palpable and overriding error, and the appellant has failed to establish one.

[9] The appellant did not press the second ground of appeal. There is no merit to it. It is inconsistent with his position that he did not resign, and there was no evidence of resiling in any event.

[10] The appeal is dismissed. The respondent is entitled to $12,500 in costs, inclusive of taxes and disbursements.

"G.R. Strathy C.J.O."

"R.G. Juriansz J.A."

"Grant Huscroft J.A."