



COURT OF APPEAL FOR ONTARIO

CITATION: Chhina v. Commercial Spring
    & Tool Company Limited, 2017 ONCA 967

DATE: 20171207

DOCKET: C63459

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

BETWEEN

Peter Chhina

Plaintiff (Appellant)

and

Commercial Spring & Tool Company Limited

Defendant (Respondent)

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 judges
    decision dismissing the appellants 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 appellants evidence that
    he had taken a leave of absence to wind up his fathers estate in India. The
    appellant submits that she erred in doing so, and erred in failing to address
    the appellants 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 appellants presence, that the
    appellant was quitting and asked to take care of it. The trial judge stated
    that Gills evidence was unchallenged and uncontradicted, but the appellant
    says that is in error: he denied Gills account in his testimony.

[6]

The trial judge made no error in this regard.
    Read in context, her point was that Gills evidence was not challenged by the
    appellant in cross-examination. The trial judge was entitled to accept Gills
    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 appellants 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 respondents 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 judges conclusion that the appellant had resigned.

[8]

The appellants 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.


