



COURT OF APPEAL FOR ONTARIO

CITATION: Agostino v.
    Gary Bean Securities Ltd., 2015 ONCA 49


DATE: 20150126

DOCKET: C59222

Doherty, Juriansz and Huscroft JJ.A.

BETWEEN

Maurizio Agostino

Plaintiff

(Appellant)

and

Gary Bean Securities Ltd. and Gary Bean

Defendants

(Respondents)

Maurizio Agostino, acting in person

Linda M. Smits, for the respondents

Heard and released orally:  January 16, 2015

On appeal from the order of Justice A. Duncan Grace of
    the Superior Court of Justice, dated July 9, 2013.

ENDORSEMENT

[1]

This is an appeal from the decision of Grace J. dismissing the
    appellants action for wrongful dismissal and granting judgment on the
    respondents counterclaim for $63,179.66, money found owing as a result of the
    appellants expense account.

[2]

The appellant argued that the trial judge erred in permitting two
    witnesses who were not included on the pre-trial conference report to testify
    at the trial.  However, the trial judge properly exercised his discretion to
    allow the respondents to call the two witnesses to testify. The appellant chose
    to proceed with the trial rather than adjourning the matter as the trial judge was
    prepared to allow.  He cannot now claim that the trial was unfair on this
    account.

[3]

The appellant argued that the trial judge erred in concluding that the corporate
    respondent had just cause to terminate his employment. It was open to the trial
    judge to conclude that the appellant was properly terminated given his findings
    that the appellant made unauthorized trades, lied to a client, and misled the
    respondent.

[4]

There is no legal principle requiring progressive discipline in every
    case. The trial judge considered whether progressive discipline was appropriate
    in these circumstances and determined that it was not given his conclusion that
    the appellants dishonesty went to the heart of the employment relationship
    (see paras. 86-91). We agree with his conclusion.

[5]

There is no basis to suggest that the respondents acted with malice or
    bad faith toward the appellant.

[6]

Given that the appellant fails on the appeal, there is no need to
    consider his argument that the trial judge did not determine an inappropriate notice
    period in the circumstances.

[7]

The trial judges calculation of the expense monies owed by the
    appellant to the respondent are supported by the facts found by the trial judge
    and we defer to his conclusion in this regard.

[8]

For these reasons, the appeal is dismissed.

[9]

Costs in favour of the respondents are fixed in the amount of $10,000
    including disbursements and relevant taxes.

Doherty
    J.A.

R.G.
    Juriansz J.A.

G.A.
    Huscroft J.A.


