



COURT OF APPEAL FOR ONTARIO

CITATION: Wilkes v. Deep Foundations Contractors Inc., 2015
    ONCA 231

DATE: 20150407

DOCKET: C58074

Feldman, Benotto and Brown JJ.A.

BETWEEN

Ken Wilkes

Respondent (Plaintiff)

and

Deep Foundations Contractors Inc.

Appellant (Defendant)

Thomas A. Stefanik, for the appellant

Paul McKeever, for the respondent

Heard and released orally: March 30, 2015

On appeal from the judgment of Justice Bruce A. Glass of
    the Superior Court of Justice, dated November 25, 2013.

ENDORSEMENT

[1]

The appellant asks the court to set aside the decision of the trial
    judge on the basis that the reasons do not address an important issue of credibility
    and therefore do not tell the parties why the respondent won and the appellant lost.

[2]

The respondent was terminated for alleged cause.  The cause was that he
    did outside consulting work after July 30, 2009, after the employer made it clear,
    and the employee agreed, not to do so.  The alleged transgression was a health
    and safety manual which the respondent prepared for Rockwood General
    Contractors Limited.  There was conflicting evidence regarding when that manual
    was prepared and delivered.  The respondent said it was before July 30, it was
    dated July 2, 2009, and Mr. Hary of Rockwood said it was delivered between
    April and September 2009.  The respondent had sent a September invoice to
    Rockwood and a September date also appeared on a company adoption page in one
    version of the manual.

[3]

The trial judge made a specific finding that the appellants evidence
    did not substantiate its allegations and that the respondent did not do outside
    consulting work after July 30.

[4]

There was some conflicting evidence about what the parties recalled they
    had said at the termination meeting of November 30, 2009.

[5]

Although the trial judge did not address those discrepancies directly,
    his finding that the defendants evidence did not substantiate its allegations effectively
    dealt with the issue.

[6]

In our view, there is no basis to interfere with the decision of the
    trial judge.  The appeal is therefore dismissed.  Costs to the respondent fixed
    in the amount of $12,500, inclusive of disbursements and HST.

K. Feldman J.A.

M.L. Benotto J.A.

David Brown J.A.


