Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230613 DOCKET: COA-22-CV-0126

Doherty, Hoy and Favreau JJ.A.

BETWEEN

Darryl Ian Morey Plaintiff (Appellant)

and

C.A.T. Inc. Defendant (Respondent)

Counsel: Lluc Cerdà and Stephen Lemesurier, for the appellant Christine M. Krueger, for the respondent

Heard and released orally: June 7, 2023

On appeal from the order of Justice Carole J. Brown of the Superior Court of Justice, dated August 19, 2022, with reasons reported at 2022 ONSC 4621.

Reasons for Decision

[1] The trial judge dismissed the appellant’s action alleging that he was constructively dismissed from his employment with the respondent trucking company.

[2] The appellant was an unsalaried, short-haul truck driver. He alleged that the new compensation plan introduced by the respondent substantially and detrimentally changed his terms of employment and constituted constructive dismissal. The trial judge found that there was no, or no sufficient, evidence to establish that his new compensation structure would be detrimental to him or would result in a reduction in his compensation.

[3] The appellant argues that a new trial should be ordered for three reasons:

(1) The trial judge improperly admitted what he characterizes as hearsay evidence by Julie Laurendeau, who was the respondent’s Vice-President of Human Resources at the material time;

(2) The trial judge struck the affidavit of his colleague, Richard Appleton, who had brought a separate action for constructive dismissal, under r. 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, without applying Farber v. Royal Trust Co., [1997] 1 S.C.R. 846, which governs the admissibility of ex post facto evidence in constructive dismissal claims; and

(3) The trial judge erred in refusing to allow him to impeach Ms. Laurendeau based on an affidavit.

[4] We are not persuaded that this court should order a new trial.

[5] The appellant’s action proceeded as a summary trial under r. 76 of the Rules of Civil Procedure. Ms. Laurendeau was the respondent’s representative at trial. She both deposed and testified as to the information about which she had knowledge. As the trial judge wrote,

She obtained from her corporate colleagues, data and statistical and other information relevant to the case that they had access to in their departments, and provided that in her affidavit and in viva voce evidence as her [sic] information and belief.

[6] While appellant’s trial counsel had Ms. Laurendeau’s affidavit before trial, he did not object to Ms. Laurendeau’s evidence as hearsay either before trial or during her testimony; he only claimed it was hearsay during closing argument. This was improper. The effect of this was that the respondent had no opportunity to lead further or better evidence. In these circumstances, that is enough to dispose of this ground of appeal.

[7] Moreover, the trial judge did not rely on the alleged hearsay evidence in deciding the trial. She concluded that the appellant had not met his burden of showing he was constructively dismissed.

[8] As to the appellant’s second ground of appeal, he did not raise the applicability of Farber during the respondent’s motion under r. 25.11 at the outset of trial to strike Mr. Appleton’s affidavit.

[9] In any event, we are not persuaded that this court should interfere with the trial judge’s assessment that the marginal probative value of Mr. Appleton’s evidence was outweighed by its prejudicial effect in the context of this summary trial. It was the evidence of only a single employee, and one also involved in litigation against the respondent.

[10] Turning to his final ground of appeal, the appellant sought to impeach Ms. Laurendeau on her evidence about how many trucks were currently at the Nappanee terminal by putting to her a prior statement in an affidavit. The appellant did not comply with s. 20 of the Evidence Act, R.S.O. 1990, c. E.23, in how he proceeded. In any event, the point on which impeachment was sought was at most peripheral. Further, as noted above, the trial judge’s ultimate decision turned on the insufficiency of the evidence proffered by the appellant, not on the credibility of Ms. Laurendeau.

[11] Finally, we note that the appellant brought a motion for the admission of fresh evidence. The proposed fresh evidence is the affidavit of Ms. Laurendeau which he had wanted to use to impeach her at trial. That affidavit should have been marked as a lettered exhibit for identification at trial, and we have considered it on that basis. The motion to adduce fresh evidence is dismissed as unnecessary.

[12] Accordingly, the appeal and the motion to adduce fresh evidence are dismissed.

[13] The respondent is entitled to its costs of the appeal, fixed in the amount of $25,000, including disbursements and HST.

“Doherty J.A.”

“Alexandra Hoy J.A.”

“L. Favreau J.A.”