



COURT OF APPEAL FOR ONTARIO

CITATION: Chevalier v. Active Tire
    & Auto Centre Inc., 2013 ONCA 548

DATE: 20130911

DOCKET: C55919

Cronk, Blair and Strathy JJ.A.

BETWEEN

Earl Chevalier

Plaintiff (Appellant)

and

Active Tire & Auto Centre Inc.

Defendant (Respondent)

Bradley J. Troup and Gillian Fahy, for the appellant

Orlando M. Rosa, for the respondent

Heard and released orally: September 5, 2013

On appeal from the judgment of Justice R.A. Lococo of the
    Superior Court of Justice, dated October 10, 2012.

By the Court:

I.        Introduction

[1]

In late October 2008, the appellant, Earl Chevalier, was constructively
    dismissed from his employment with the respondent, Active Tire & Auto
    Centre Inc., as the manger of an automotive and tire centre in Niagara Falls.
    Active Tire purported to lay-off Mr. Chevalier in the erroneous belief that it
    was entitled to do so due to the poor financial performance of the Niagara
    Falls facility. Within two weeks of his lay-off, Mr. Chevalier sued Active
    Tire, seeking damages for wrongful dismissal, including moral damages for the
    manner of his dismissal. Five days after the commencement of his action, Active
    Tire recalled Mr. Chevalier to work, at the same location, with the same
    responsibilities and duties, at the same salary and with the same benefits.

[2]

Mr. Chevalier declined to return to work and proceeded to trial. He
    alleged, among other matters, that Active Tire personnel had embarked on a
    deliberate campaign of harassment and intimidation against him, designed to
    provoke his voluntary resignation. Mr. Chevalier maintained that, as a result,
    his work environment had become poisoned and he was not obliged to return to
    work under circumstances in which he would be subjected to hostility,
    embarrassment and humiliation.

[3]

At trial, Active Tire did not dispute that Mr. Chevalier had been
    constructively dismissed. As relevant to this appeal, the central issue was
    whether Mr. Chevalier was obliged to mitigate his damages by accepting Active
    Tires offer that he return to work.

[4]

The trial judge concluded that, viewed objectively, a reasonable person
    in Mr. Chevaliers circumstances would have accepted the opportunity to return
    to work at the Niagara Falls centre. By declining this opportunity, Mr.
    Chevalier failed to mitigate his damages, as he was obliged to do, with the
    result that his damages in lieu of notice were nil. The trial judge, therefore,
    dismissed Mr. Chevaliers action for damages.

[5]

Mr. Chevalier appeals.

II        Discussion

[6]

He raises two grounds of appeal. First, he argues that the trial judge
    erred in his application of the relevant legal test in determining the
    reasonableness of Mr. Chevaliers refusal to return to work.

[7]

We reject this argument.

[8]

In his fulsome reasons, the trial judge referred to the governing legal
    authorities, including the leading decisions of the Supreme Court of Canada in
Evans
    v. Teamsters Local Union No. 31
, 2008 SCC 20, [2008] 1 S.C.R. 661 and
Michaels
    v. Red Deer College
, [1976] 2 S.C.R. 324, and to the principles enunciated
    in those cases regarding the circumstances in which a dismissed employees
    mitigation of damages obligation must be met by returning to work for the same
    employer. See in particular,
Evans
at para. 30.

[9]

The trial judge considered and applied those principles to the evidence
    before him. He reviewed the pertinent evidence in some detail, the positions of
    the parties, and the factors weighing in favour and against the conclusion that
    Mr. Chevaliers decision not to return to work was reasonable. He made the
    following critical findings:

(1) the impugned conduct of Active Tire personnel was directed
    towards making Mr. Chevalier a more effective, contributing employee and
    assisting him in meeting the terms of his employment agreement, rather than
    driving him from the company;

(2) in particular, the conduct of Active Tires General Manager,
    Mr. Steele, was intended to help Mr. Chevalier improve his performance and was
    not part of a campaign to cause him to leave the company;

(3) contrary to his contention, Mr. Chevalier was not subjected
    to demeaning, objectionable or retributory conduct by Active Tire
    representatives. Indeed, some of the incidents complained of by Mr. Chevalier
    were either misinterpreted by him or did not occur;

(4) the decision to lay-off Mr. Chevalier was made by Active
    Tire for economic reasons in the mistaken belief that lay-off options were
    available to it in the circumstances;

(5) although Mr. Chevalier was an honest witness, many of the
    incidents of which he complained had become magnified and distorted in his mind
    over time; and

(6) the fact that Mr. Chevalier had already left the employ of
    Active Tire, and the fact that he had already sued the company, when the offer
    of re-employment was made, while relevant, were not determinative of the
    reasonableness of his rejection of Active Tires offer of re-employment.

[10]

These
    factual findings, many of which were credibility-based, were open to the trial
    judge on the record before him. They attract deference from this court. They
    are also fatal to Mr. Chevaliers claim that the trial judge erred in his
    assessment of the reasonableness of Mr. Chevaliers decision not to return to
    work. To the contrary, they confirm that the trial judge considered the factors
    relevant to the assessment of the reasonableness of that decision. It was for
    the trial judge to determine the weight to be assigned to those factors.

[11]

Mr.
    Chevalier next argues that the trial judge erred by concluding that there was
    no acrimony and/or animosity between the parties. He argues, essentially, that
    because Mr. Chevalier had left the employ of the company when he was laid-off
    and had sued the company for wrongful dismissal, it is self-evident that the
    relationship between the parties was acrimonious and infused with animosity.

[12]

On
    this record, we also reject this argument.

[13]

The
    trial judge heard the testimony of at least five defence witnesses, including the
    President, General Manager and other managers of Active Tire who worked with
    Mr. Chevalier. He accepted their evidence on the critical issues in contention.
    He found their evidence to be credible and contrary to the assertion that Mr.
    Chevalier would be exposed to an atmosphere of hostility, embarrassment and
    humiliation if he returned to work. This was the trial judges call to make.

[14]

We
    therefore see no basis for appellate interference with the trial judges ruling
    that in the circumstances, and viewed objectively, Mr. Chevaliers rejection of
    Active Tires re-employment offer was unreasonable.

[15]

We
    recognize that this result is unfortunate for Mr. Chevalier. However, absent
    palpable and overriding error, it is not open to this court to interfere with a
    trial judges factual findings or assessment of the evidence. In this case, the
    trial judges key factual findings, which flowed from his evaluation of the trial
    evidence, are adverse to Mr. Chevalier. We are not satisfied that the case for
    palpable and overriding error has been made out.

[16]

Accordingly,
    the appeal is dismissed. The respondent is entitled to its costs of the appeal,
    fixed in the amount of $7,500, inclusive of disbursements, plus all applicable
    taxes.

Released: EAC September 11, 2013

E.A. Cronk J.A.

R.A. Blair J.A.

G.R. Strathy J.A.


