





CITATION:
Qubti v. Reprodux
          Ltd., 2011 ONCA 651



DATE: 20111018



DOCKET: C51741



COURT OF APPEAL FOR ONTARIO



Blair, LaForme JJ.A. and Benotto J. (
ad hoc
)



BETWEEN



Elias Qubti



Plaintiff (Appellant)



and



Reprodux Ltd.



Defendant (Respondent)



Davit D. Akman and  Richard A. Levin, for the
          plaintiff/appellant



Nancy M. Shapiro, for the defendant/respondent



Heard & released orally:
October 13,
          2011



On appeal from the judgment of Justice Denise Bellamy of the
          Superior Court of Justice sitting without a jury, dated February 4, 2010.



ENDORSEMENT



[1]

Mr. Qubti appeals from the judgment of Bellamy J. dated February 4,
    2010, granting him damages for constructive dismissal in the amount of
    $9,462.00 but dismissing his claim for aggravated damages, punitive damages and
    damages for the intentional inflection of mental distress.

[2]

Mr. Akman submits on his behalf that the trial judge erred in law by
    concluding that the verbal abuse Mr. Qubti suffered at the hands of Reprodux
    was not the sole cause of his mental distress and therefore, that aggravated
    damages were not appropriate.  He further submits that the trial judge made
    numerous palpable and overriding errors in arriving at her findings of fact,
    but that even on the findings she made and on her own characterization of
    Reproduxs conduct toward Mr. Qubti, aggravated and punitive damages and
    damages for intentional inflection of mental distress must follow.

[3]

We do not agree.

[4]

Bellamy J. heard evidence over a 14 day trial.  She formed her opinions
    as to the reliability and credibility of the witnesses she heard and accepted
    some, but not all of each witness testimony.  Her findings were open to her on
    the record  including her findings that Mr. Qubti tended to exaggerate events
    and their impact and that Dr. Boyrazian was more of an advocate for Mr. Qubti
    than an objective witness.  She made no palpable and overriding error in her
    assessment of the evidence.

[5]

The trial judge found that Mr. Qubti had been the object of
    inappropriate verbal abuse in the workplace.  She did use strong language to
    describe why she did not condone it, calling it objectionable and offensive
    and at one point reprehensible.  However, whether the
impugned conduct
was or was not a direct or
    contributing cause of Mr. Qubtis mental distress, would not have affected the
    result here, in our view.
That is because, at
    the end of the day, the trial judge concluded that while the impugned conduct
was sufficient to create a hostile and poisoned work environment justifying a
    finding of constructive dismissal, it did not rise to the level sufficient to
    support a separate award for aggravated or punitive damages, or damages for
    infliction of mental distress.  While another judge may have taken a different
    view of the evidence, these findings were available to the trial judge and we
    see no error in law or in fact in her determination.

[6]

The appeal is therefore dismissed.

Cross-appeal
    as to costs

[7]

Reprodux cross-appeals against the award of
    $40,000 in costs plus $11,360 in disbursements made by the trial judge in favour
    of Mr. Qubti.  We see no reason to interfere and would not grant leave to
    appeal.

[8]

The trial judge was fully aware of the
    provisions of rule 76.13(3).  Her reasons make clear that she viewed the case
    as coming within the inception in rule 76.13(3)(b) however, namely that it was
    reasonable for the plaintiff to continue the proceeding under the ordinary
    procedure.  This was her call.

[9]

The cross-appeal is therefore dismissed.

Costs

[10]

Taking
    into account both the appeal and the cross-appeal, costs to Reprodux are fixed
    in the amount of $12,500 all inclusive.

R.A. Blair J.A.

H.S.
    LaForme J.A.

M.L. Benotto J. (ad
    hoc)


