



COURT OF APPEAL FOR ONTARIO

CITATION: Lemesani v. Lowerys Inc., 2018 ONCA 270

DATE: 20180319

DOCKET: C63659

Simmons and Pepall JJ.A. and Fragomeni J. (
ad
    hoc
)

BETWEEN

Michael Lemesani

Plaintiff (Appellant)

and

Lowerys Inc.

Defendant (Respondent)

Jordan Lester, for the appellant

Roderick W. Johansen, for the respondent

Heard: March 16, 2018

On appeal from the judgment of Justice H.M. Pierce of the
    Superior Court of Justice, dated March 20, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals from a judgment dismissing his claim for wrongful
    (constructive) dismissal and related relief.  He raises several issues on
    appeal.

[2]

His first argument is that the trial judge erred in finding the
    employment agreement frustrated.  We disagree.

[3]

As acknowledged by appellants counsel, this was essentially a fact
    driven question.  The trial judge gave lengthy and considered reasons assessing
    the appellants many arguments.  Among other things, she found there was no
    evidence supporting his claims of workplace harassment and that, as at the time
    of the termination of the contract, there was no reasonable likelihood of the
    appellants being able to return to work within a reasonable time.  On our review
    of the record, these findings were amply supported and we see no palpable and
    overriding error.

[4]

The appellant also argued that the trial judge erred in failing to find
    he was constructively dismissed due to the termination of his employment
    benefits.  We reject this argument.  Counsel acknowledged that the benefits
    terminated as of June 30, 2013.  However, as found by the trial judge, this was
    the date on which the employment contract was frustrated.  It follows that
    there was no constructive dismissal through termination of the employment
    benefits.

[5]

The appellant raised a number of other issues which, either he did not
    plead and therefore were not addressed by the trial judge in her reasons, or
    which are inconsistent with the trial judges finding concerning the
    appellants inability to return to work within a reasonable time.  We reject
    these claims.

[6]

Despite the able arguments made by appellants counsel, the appeal is
    therefore dismissed.

[7]

Costs of the appeal are to the respondent on a partial indemnity scale
    fixed in the agreed upon amount of $11,300 inclusive of HST and disbursements.


