



COURT OF APPEAL FOR ONTARIO

CITATION: De Jesus v. Linamar Holdings Inc.
(Camcor
    Manufacturing), 2017 ONCA 384

DATE: 20170515

DOCKET: C62551

Rouleau, Pardu and Roberts JJ.A.

BETWEEN

Ronald De Jesus

Appellant (Plaintiff)

and

Linamar
Corporation

Holdings Inc.
aka Camcor Manufacturing

Respondent (Defendant)

Robert A. Konduros, for the appellant

Malcolm MacKillop and Todd Weisberg, for the respondent

Heard: May 2, 2017

On appeal from the judgment of Justice Nancy Mossip of
    the Superior Court of Justice, dated July 18, 2016, with reasons reported at
    2016 ONSC 4383.

REASONS FOR DECISION

A.

Overview

[1]

The
    appellant appeals the dismissal of his wrongful dismissal action.

[2]

The
    appellant was employed as a production supervisor with the respondent.  On
    October 8, 2013, his employment was terminated for cause after approximately
    19.5 years of continuous employment, without notice or compensation in lieu of
    notice.  The respondent terminated the appellants employment because of a
    series of incidents that culminated in his having allowed 1,500 defective
    camshafts to be processed with roping marks during his shift and then in his
    having lied to the respondent about what had happened.

[3]

The
    trial judge did not accept the appellants evidence that he had carried out
    regular checks of the line and had instructed members of his team to do the
    same, nor his denial that 1,500 defective camshafts had been produced during
    his shift. The trial judge accepted the respondents evidence that 1,500
    defective camshafts had been produced during the appellants shift and that, if
    the appellant and his team had in fact been carrying out the mandated checks as
    often as they said they had, it would have been impossible for the appellant or
    his team members not to have discovered the defective camshafts.  Indeed, the
    trial judge accepted the evidence of one of the packers that she and other
    packers had brought the roping issue to the appellants attention on three
    occasions during their shift.  The trial judge concluded that the appellant had
    lied about the roping issues that had occurred during his shift.

[4]

The trial judge held that the appellants failure to supervise and to
    take any remedial steps once the roping problem was brought to his attention, combined
    with his dishonesty about what had happened, went to the heart of the
    employment relationship.  Accordingly, the trial judge concluded that these
    facts, when taken together with the appellants earlier disciplinary incidents,
    established on a balance of probabilities that the respondent had just cause to
    terminate the appellants employment.

B.

Issues on appeal

[5]

The appellant submits that the trial judge made the following errors:

i.

The trial judge reversed the onus that the respondent had to meet,
    erroneously requiring the appellant to prove that his employment had not been
    terminated for cause.

ii.

The trial judge was biased against the appellant.

[6]

We would not give effect to these submissions.

(1)

Did the trial judge reverse the onus on the employer to prove just
    cause?

[7]

The appellant submits that an improper reversal of the employers onus
    resulted in the trial judge erroneously accepting the respondents impossibly
    exaggerated evidence that 1,500 defective camshafts were produced during the
    appellants shift and the respondents hearsay evidence that 604 of those defective
    camshafts had to be scrapped. In support of his allegation of the trial judges
    error, the appellant points to the following sentence near the end of the trial
    judges conclusion, at para. 163:  On all of the evidence, the plaintiff has
    not met his onus that he was wrongfully terminated from his employment with the
    defendant.

[8]

We agree with the respondents submission that this concluding sentence referring
    to onus must be read in the context of the entirety of the trial judges reasons. 
    From the respondents written and oral submissions at trial, it is apparent
    that the respondent accepted that it had the onus to demonstrate, on a balance
    of probabilities, that it had just cause to terminate the appellants
    employment without notice or compensation in lieu of notice.  In their
    submissions at trial, both counsel advised the trial judge that the respondent
    had this onus.

[9]

Moreover, the trial judge applied the correct analysis for determining
    whether just cause has been established, as set out by the Supreme Court of
    Canada in
McKinley v. BC Tel
,

2001 SCC 38, [2001] 2 S.C.R. 161,
    and as later referenced by this court in
Dowling v. Ontario
(Workplace
    Safety & Insurance Board)
(2004), 246 D.L.R. (4th) 65 (Ont. C.A.) and
Fernandes
    v. Peel Educational & Tutorial Services Limited (Mississauga Private
    School)
,
2016 ONCA 468, [2016] O.J. No. 3140.  Following this
    analysis, the trial judge concluded at para. 150 of her reasons that Mr. De
    Jesus action for wrongful dismissal cannot succeed because Linamar had just
    cause to terminate his employment.

[10]

Taken
    in this context, the trial judges above-noted sentence at para. 163 of her
    reasons merely alludes to the fact that the appellant was unsuccessful at
    trial. Her analysis itself does not reflect a reversal of the employers onus.

[11]

With
    respect to the trial judges acceptance of the hearsay evidence about the 604
    scrapped defective camshafts, we agree that this was an error.  However, this
    was not a palpable and overriding error because it did not affect the trial
    judges assessment of the evidence or her ultimate determination of the
    issues.  As the trial judge stated several times in her reasons, the key factual
    issue that she had to decide was whether 1,500 defective camshafts had been
    produced during the appellants shift.  Whether or not 604 of those camshafts
    were ultimately scrapped was immaterial to the trial judges determination of
    the total number of defective camshafts.  The trial judge found that the
    magnitude of the total number of defective camshafts, which the appellant
    allowed to pass uncorrected during his shift, taken together with his subsequent
    dishonesty about them, was the culminating event that formed the primary basis
    for his dismissal for cause.

[12]

The
    trial judge gave thorough and detailed reasons as to why she preferred the
    respondents evidence to that of the appellant on the issue of whether 1,500
    defective camshafts were produced during the appellants shift.  In particular,
    she was alert to and dealt with the differences among the various estimates of
    the actual number of defective camshafts given by the respondents witnesses.
    She accepted the evidence of the production supervisor who discovered and
    counted the actual number of defective camshafts produced during the
    appellants shift.  This evidence was consistent with and supported by the
    evidence of the packer and the other supervisors who testified about the unusually
    large amount of defective camshafts that they saw had been produced during the
    appellants shift.  It was open to the trial judge to accept this evidence and to
    conclude that 1,500 defective camshafts had been produced during the
    appellants shift. There is no basis to interfere with her finding on that
    point.

(2)

Was there a reasonable apprehension of bias?

[13]

We turn
    finally to the appellants allegation of bias against the trial judge.

[14]

In
Lloyd
    v. Bush
, 2017 ONCA 252, [2017] O.J. No. 1559, at para. 112, this court
    very recently reiterated the classic, undisputed test for reasonable
    apprehension of bias, as summarized by the Supreme Court of Canada in
Yukon
    Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney
    General)
, 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 20 of that decision:

what would an informed person, viewing
    the matter realistically and practically  and having thought the matter
    through  conclude?  Would he think that it is more likely than not that [the
    decision-maker], whether consciously or unconsciously, would not decide fairly?

[15]

This court went on to
    state, at para. 113 of
Bush
, the equally well-established principle
    that judges are afforded a strong presumption of impartiality that is not
    easily displaced, although that presumption can be rebutted by the trial
    judges conduct.

[16]

In
    support of his allegation of bias, the appellant places particular emphasis on
    the trial judges negative reaction to counsels failure to bring to the
    courts attention a decision of this court that questioned a procedural ruling
    that the trial judge had made earlier.  The trial judge initially chastised
    appellants counsel, describing his failure to bring the case to the courts
    attention as bad advocacy.  However, once counsel for both parties apologized
    and explained that the failure was unintentional, the trial judges initial annoyance
    immediately disappeared and she offered and granted appellants counsel a
    recess to determine best how to continue his questions in light of the new
    case.

[17]

This
    exchange and the other concerns raised by the appellant do not demonstrate bias
    on the part of the trial judge.  There is no evidence of inappropriate
    treatment by the trial judge of the appellant and his counsel.  Criticism of
    counsel by the trial judge, as occurred here, or disagreement with the findings
    urged upon her by counsel, does not amount to bias or give rise to a reasonable
    apprehension of bias.  The trial judges reasons for her findings are detailed
    and comprehensive, and amply supported by the record.

C.

Disposition

[18]

Accordingly,
    the appeal is dismissed.

[19]

Costs
    are to the respondent in the agreed amount of $20,000, inclusive of
    disbursements and applicable taxes.

Paul Rouleau J.A.

G. Pardu J.A.

L.B. Roberts J.A.


