



COURT OF APPEAL FOR ONTARIO

CITATION:
DelBianco v. Vrancor
    Hospitality Corp., 2012 ONCA 62

DATE: 20120130

DOCKET: C53517

Cronk and Blair JJ.A. and Strathy J. (
ad hoc
)

BETWEEN

Neil DelBianco

Plaintiff (Respondent)

and

Vrancor Hospitality Corp. and SSM 208 St. Marys River Inc. operating as Holiday Inn Sault Ste. Marie
and Peter Tosh

Defendants (Appellants)

Stephen A. McArthur and Janet M. Callfas, for the
    appellants

Hugh N. MacDonald, for the respondent

Heard and released orally: January 27, 2012

On appeal from the judgment of Justice E.E. Gareau of the
    Superior Court of Justice, dated February 22, 2011 and from his costs judgment
    dated September 20, 2011.

ENDORSEMENT

[1]

The appellants challenge the trial judges holding in this wrongful
    dismissal case that the respondent met his obligation to mitigate his damages. 
    They argue, first, that the respondents failure to accept an oral offer of
    re-employment from the appellants in January 2009 was unreasonable.

[2]

The trial judge considered and rejected this argument.  In his reasons,
    he reviewed the evidence on this issue from all the witnesses called at trial. 
    Having done so, he held that the respondent did not refuse the re-employment
    offer.  Rather, the respondent said that he wanted the offer to be made in
    writing and wished to speak to his lawyer before making a decision about it,
    the latter as recommended by the Chief Financial Officer of the appellant
    companies.  The trial judge held that this response was not unreasonable 
    indeed, that it was the prudent approach to take in the circumstances.  We
    agree.

[3]

This court has limited authority to interfere with the factual findings
    of a trial judge.  Absent palpable and overriding error with respect to those
    findings, appellate intervention is precluded.

[4]

We see no palpable and overriding error by the trial judge in his
    assessment of the reasonableness of the respondents response to the
    re-employment offer.  On the contrary, given the history of the dealings
    between the parties, the circumstances surrounding the making of the offer, and
    the lack of clarity regarding the respondents prospective employment with the
    new operator of the appellants hotel, we agree that the respondents conduct
    was reasonable.

[5]

The appellants also complain that the respondent made inadequate efforts
    overall to obtain new employment and that his failure to attend a job interview
    for a full-time janitorial and maintenance position with a local school board
    was fatal.  We disagree.

[6]

The trial judge described the respondents efforts to find new employment
    during the notice period as extensive, exhaustive and diligent.  The
    record supports that characterization.  Given the respondents overall course
    of conduct in aid of mitigation, we agree with the trial judge that he should
    not be penalized for his perhaps unwise decision to decline to attend one
    particular job interview.

[7]

The appellants also attack the trial judges finding of the reasonable
    notice period.  Whether that finding is viewed as 22 months in total or 20
    months plus 8 weeks pay on account of the mandatory requirements of the
Employment
    Standards Act
, we are not prepared to interfere with the trial judges
    assessment of what constitutes a reasonable notice period in all the
    circumstances of this particular case.

[8]

Nor do we accept the appellants various grounds of appeal regarding the
    costs awarded at trial.  The trial judges costs reasons indicate that he
    considered and applied the governing legal principles.  He reduced
    significantly the total costs claimed by the respondent (by almost $26,000). 
    We are not persuaded that he erred in principle in his costs assessment or that
    his costs award is clearly wrong.

[9]

At the end of the day, we view this appeal  in the main  as an effort
    to relitigate the issues at trial and the trial judges factual findings.  The
    high threshold required to succeed on appeal on the latter ground has simply
    not been met notwithstanding the able efforts of appellants counsel.

[10]

The
    appeal, therefore, is dismissed.  The respondent is entitled to his costs of the
    appeal in the total amount of $15,000, inclusive of disbursements and all
    applicable taxes.

E.A. Cronk J.A.

R.A. Blair J.A.

G.R. Strathy J. (
ad hoc
)


