REASONS FOR JUDGMENT

(On appeal from the decision of Deputy Judge C. VandenHoek, dated July 25, 2019)

Daley J.

[1] The respondent on this appeal was employed with the appellant car dealership from approximately 2008 to 2016.

[2] The respondent's employment with the appellant ended in November 2016, following which the respondent instituted an action against the appellant seeking damages for wrongful dismissal.

[3] The action proceeded to trial in the Small Claims Court at Guelph before Deputy Judge Carol VandenHoek and in her reasons for decision of July 25, 2019, the deputy judge concluded that the respondent had been dismissed without cause by the appellant, and that he had not resigned from his employment as was asserted.

[4] The appellant employer appeals from the deputy judge's decision and submits that the deputy judge erred in several respects, including in failing to provide adequate reasons for decision and in failing to address alleged inconsistencies in the testimony of witnesses as well as determining the credibility and reliability of certain witnesses and reconciling conflict in the testimony of witnesses.

Standard of Review:

[5] It was urged by counsel on behalf of the appellant that the applicable standard review was one of correctness, but he then further stated that it was one wherein appellant must establish a palpable and overriding error.

[6] The respondent submitted that the applicable standard of review was one that required an appellant to demonstrate a palpable and overriding error in keeping with the Supreme Court of Canada's Decision in Housen v. Nikolaisen, 2002 SCC 33 at paras 19 – 25.

[7] A palpable and overriding error has been described by the Federal Court of Appeal in its decision in Zero Spill Systems (Int'l) Inc. v. Heide, 2015 FCA 115 at para 49 as follows:

Palpable and overriding error is a highly deferential standard. "Palpable" means an error that is obvious. "Overriding" means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.

[8] The applicable standard of review in this case is one that requires the appellant to demonstrate a palpable and overriding error on the part of the trial judge that goes to the core of the decision in this case.

Applicable Legal Framework:

Sufficiency of Reasons for Judgement:

[9] The appellant takes the position that this Court must set aside the judgement below and order a new trial as a result of the deputy judge's errors in failing to address alleged inconsistencies in the evidence of various witnesses and as well due to her failure to provide adequate reasons including a discernible path of reasoning in reaching the decision she did.

[10] Counsel for the appellant acknowledged that while asserting the grounds of appeal advanced as to the inadequacy of the reasons for decision, the reasons were not so deficient such that they were incapable of proper appellate review. Thus the appellant bases its position on the alleged inadequacies or deficiencies in the reasons for judgement in seeking a new trial.

[11] It has been recognized by the Supreme Court of Canada that sufficiency of reasons is not a "free-standing" or standalone ground of appeal. In R. v. Walker, 2008 SCC 34, para 20, Justice Binnie stated as follows:

… [t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself" (para 26). Reasons are sufficient if they are responsive to the case's live issues and the parties' key arguments. There sufficiency should be measured not in the abstract, but as they respond to the substance of what was an issue

The duty to give reasons "should be given a functional and purposeful interpretation" and the failure to live up to the duty does not provide "a freestanding right of appeal" or in itself confer entitlement to appellate intervention" (para 53).

[12] A reviewing court cannot assume that a trial judge did not consider certain issues simply because they are not referred to in the written decision: Papp v. Stokes, 2018 ONSC 1598 [Div. Ct.].

[13] It has been further held that although reasons may be less than ideal, they may still meet the requirements for sufficiency of reasons: Nicholson v. Gemnay, 2017 ONCA 187 at para 7. Furthermore, the Court of Appeal has also confirmed that it is not enough to establish that a trial judge "could have been more expansive" to justify appellate intervention. The trial judge is not required to respond to every argument, nor is she or he required to recite all the evidence or specifically articulate every relevant inference that has been drawn: Trillium Motor World Ltd v. Cassels Brock & Blackwell LLP, 2017 ONCA 544 at para 354.

[14] As to the duty of a deputy judge to identify and deal with credibility concerns and to assess both the credibility and reliability of a witness' evidence, there is a high level of deference owed to a trial judge with respect to findings of credibility. In his decision in Palac v. Coppola, 2011 ONSC 623 at para 11, McDermot J. noted:

It is even higher standard when it comes to findings of credibility by the trial judge: Although the "palpable and overriding" standard of review applies to all factual findings, the findings of fact grounded in credibility assessments are particularly difficult to disturb on appeal. Credibility assessments are inherently partly subjective and reflect the life experience of individual judges and their own perception of how the world works. Credibility assessments are also grounded in numerous, often unstated considerations which only the trial judge can appreciate and calibrate.

[15] As was stated in Housen it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence.

[16] It is not required that a trial judge detail every aspect of her decision if she prefers some evidence over other evidence and it is clear from the entirety of the record, the course of the proceedings or decisions on key evidence that by implication identify findings about other evidence: Urso v. Greater Sudbury (City), 2017 ONSC 1746 (Div. Ct.) at para 32.

[17] As to the sufficiency of reasons of a deputy judge sitting in the Small Claims Court the same principles as to the sufficiency of reasons apply even though that division of the Superior Court of Justice is a court of summary justice: Baptiste v. Obermuller, 2010 ONSC 6274 (Div. Ct.) at para 12.

[18] In Baptiste, Molloy J. stated as follows at para 12:

It is necessary to recognize the reality of a busy Small Claims Court. It must also be acknowledged that the delivery of a decision in a timely way is an important goal in that court. Nevertheless, fundamental principles of fairness and natural justice require a reasoned decision. As Binnie J. noted in the landmark Supreme Court of Canada decision R. v. Sheppard, 2002 SCC 26:

The delivery of reasoned decisions is inherent in the judge's role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large.

[19] Lauwers J.A. in the recent Court of Appeal decision in Bruno v. Dacosta, 2020 ONCA 602 at paras 13 – 25 thoroughly reviewed the governing principles on the sufficiency of trial reasons and the circumstances as to when appellate courts will intervene and salvage a judgement for which there are insufficient trial reasons.

[20] In this decision the court states that where the trial judge's reasoning is not apparent from the reasons or the record the appeal court ought not to substitute its own analysis for that of the trial judge: Bruno at para 23.

[21] In Bruno the court also observes that it is reluctant to order a new trial in civil matters and stated that a new trial should not be ordered unless the interests of justice plainly require that to be done and there must be find a real prospect that a substantial wrong or miscarriage of justice has occurred: Bruno, at para 20.

Resignation or Termination of Employment:

[22] A resignation from employment must be clear and unequivocal and in order for a court to have found that an employee has resigned, there must be evidence of an intention to resign followed by an action consistent with that intention: Kieran v. Ingram Micro Inc. (2004) 2004 4852 (ON CA), 32 ACWS (3d) 706 at para 32.

Analysis:

Sufficiency of Reasons:

[23] As stated above, counsel for the appellant acknowledged that the deputy judge's reasons were not so deficient as to be incapable of appellate review. Thus, with that concession, consideration must then be given as to whether or not the reasons disclose a palpable and overriding error that would justify appellate intervention.

[24] Quite apart from the appellant’s acknowledgement that the trial judge’s reasons are sufficient, in that they allow for appellate review, I have also reviewed the decision within the context of the issues at stake at trial and I am satisfied that they are sufficient in that the trial judge considered the lives issues as to whether or not the respondent resigned or was terminated without cause and in doing so she provided a functional and purposeful interpretation of the evidence presented by both parties.

Do the Reasons for Judgement Disclose Palpable and Overriding Error?

[25] The appellant asserts that the standard of review on this appeal is one of correctness, however it is also asserted that findings of fact or mixed fact and law can be reversed if it is established that the trial judge committed a “palpable and overriding error”. In my view given the issues raised on this appeal by the appellant, the applicable standard of review is one that requires the establishment of a palpable and overriding error: Housen at paras. 19 – 25.

[26] The appellant asserts that the trial judge fell into error in two respects, namely by failing to address inconsistencies in the testimony of witnesses as well as the credibility of the witnesses in assessing the reliability of their evidence, and secondly by failing to provide adequate reasons or an adequate path of reasoning to permit an appellate court to determine whether the conclusions reached were supported by relevant and reliable evidence.

[27] In her reasons, the trial judge made clear her findings of fact and how she reached those conclusions.

[28] Critical findings of fact and conclusions reached by the trial judge included:

(I) that the defendant had ample opportunity to meet with the plaintiff, clarify his intentions and document the arrangement, but it failed to do so;

(II) the termination letter created by the defendant was an opportunity for it to confirm a settlement agreement, but that the letter did not document such an agreement;

(III) the level of communication between the plaintiff and the defendant’s representatives was minimal;

(IV) the plaintiff did not state that he was resigning; and

(V) the plaintiff did not execute a release in favour of the defendant.

[29] The documentary evidence considered by the trial judge was in large part determinative of her conclusion that the plaintiff did not resign from his employment with the defendant. On the whole of the evidence, that was a reasonable conclusion for her to reach.

[30] The critical documentary evidence leading to the conclusions reached by the trial judge were the termination letter and the Record of Employment.

[31] The trial judge concluded that these corroborating and consistent documents did not evidence any settlement or agreement as between the plaintiff and the defendant but on the contrary they demonstrated an unambiguous act by the defendant to unilaterally terminate the plaintiff’s employment without cause and pay him the minimum termination pay as required by statute. Given her finding that there was minimal communication between the plaintiff and the defendant’s representatives, it was all the more reasonable for the trial judge to conclude that these documents clearly indicated that the plaintiff was dismissed without cause and that any suggestion of an oral agreement whereby the plaintiff was resigning was unsupported by the evidence.

[32] Both of these documents reflected an unequivocal intention on the part of the defendant to terminate the plaintiff’s employment without cause. The termination letter expressly states this fact and the Record of Employment clearly states that the plaintiff’s employment ended by “dismissal.” This documentary evidence was adduced and the admissibility and authenticity was not in dispute.

[33] The burden rested with the defendant to establish that the plaintiff had resigned from his employment rather than having been terminated. There must be clear and on equivocal evidence that an employee has resigned including evidence as to the intention to resign followed by conduct or actions consistent with that intention: Kieran at para 27.

[34] It was the position of the defendant at trial that the plaintiff expressed an intention to “retire”, however even if that were accepted by the court as the evidence, this court has concluded that even where an employee states in intention to “retire” that is not clear and unequivocal evidence of an intention to resign: Randall v. Wayne Pitman Ford Sales Ltd. (1992) 31 ACWS (3d) 996 at paras 10 – 12.

[35] Similarly, it has further been held that where an employee indicates that they were seeking termination by the employer with a severance package – that did not represent an expressed intention to quit or resign from employment and as such did not constitute a voluntary resignation: Somir v. Canac Kitchens (2006) 2006 42369 (ON SC), 56 CCEL (3d) 234 at para 35.

[36] The appellant asserts that the trial judge failed to address inconsistencies in the testimony of witnesses and the relative credibility of such testimony.

[37] As was noted by the court in the Palac decision, there is a high level of deference owed to a trial judge with respect to findings of credibility and the court stated at para 11:

It is even a higher standard where it comes to findings of credibility by the trial judge: Although the “palpable and overriding” standard of review applies to all factual findings, the findings of fact grounded in credibility assessments are particularly difficult to disturb on appeal. Credibility assessments are inherently partly subjective and reflect the life experience of individual judges and their own perception of how the world works. Credibility assessments are also grounded in numerous, often unstated considerations which only the trial judge can appreciate and calibrate.

Conclusion:

[38] For the reasons expressed, I have concluded that the trial judge’s reasons clearly considered all of the live issues at stake and resolved any inconsistencies or conflicts in evidence based on the documentary evidence referenced, which was entirely contrary to the evidence of the defendant’s witnesses to the effect that the plaintiff had agreed to resign. I can find no palpable or overriding error in the reasons for decision and as such this appeal must be dismissed.

[39] I urge the parties to resolve the costs of this appeal, however in the event that cannot be achieved, counsel for the respondent shall serve and file submissions as to costs, along with a Bill of Costs within 20 days from the date of release of these reasons and counsel for the appellant shall serve and file its similar submissions within 20 days thereafter. The submissions are limited to three pages. There shall be no reply submissions.

Daley J.

Released: January 7, 2021

CITATION: Muise v. Mark Wilson’s Better Used Cars Limited, 2021 ONSC 151

COURT FILE NO.: DC-19-77-00

DATE: 20210107

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

GARY MUISE

and -

MARK WILSON’S BETTER USED CARS LIMITED

REASONS FOR JUDGMENT

Daley J.

Released: January 7, 2021

Muise v. Mark Wilson’s Better Used Cars Limited, 2021 ONSC 151

Case Summary

REASONS FOR JUDGMENT

Standard of Review:

Applicable Legal Framework:

Sufficiency of Reasons for Judgement:

Resignation or Termination of Employment:

Analysis:

Sufficiency of Reasons:

Do the Reasons for Judgement Disclose Palpable and Overriding Error?

Conclusion:

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 3