Truck driver loses appeal of constructive dismissal ruling, on hook for $25,000 in costs

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An Ontario truck driver has lost his appeal in a constructive dismissal case and has been ordered to pay his former employer $25,000 in costs.

DIM was an unsalaried, short-haul truck driver. He alleged that a new compensation plan from his employer, C.A.T. Inc., substantially and detrimentally changed his terms of employment and resulted in constructive dismissal.

In August 2022, the Ontario Superior Court of Justice rejected his claim, ruling in favour of his employer. DIM appealed that ruling to the Court of Appeal.

3 grounds for appeal

DIM contended that a new trial should be ordered based on three grounds. Firstly, he argued that the trial judge improperly admitted hearsay evidence from the company’s vice-president of human resources.

Secondly, he claimed that the trial judge struck the affidavit of his colleague, RA, without applying the precedent set by Farber v. Royal Trust Co., which governs the admissibility of ex post facto evidence in constructive dismissal claims.

Lastly, the appellant asserted that the trial judge erred in refusing to allow him to impeach the vice-president of HR based on an affidavit.

The Court of Appeal’s ruling

The Court of Appeal, however, did not find the appellant’s arguments convincing and declined to order a new trial.

Regarding the hearsay evidence, DIM’s counsel failed to object to it during trial, depriving the respondent of the opportunity to provide further evidence. Moreover, the trial judge did not rely on the alleged hearsay evidence in her decision.

Addressing the appellant’s second ground of appeal, the Court noted that he did not raise the applicability of Farber during the respondent’s motion to strike RA’s affidavit at the outset of the trial. Additionally, the Court determined that the trial judge’s assessment of the evidence’s probative value and prejudicial effect was reasonable.

Lastly, the appellant’s attempt to impeach the VP of HR on a peripheral point was deemed ineffective and did not impact the trial judge’s decision. The Court also dismissed the appellant’s motion to adduce fresh evidence, deeming it unnecessary.

As a result, the Court dismissed the appeal and ordered the appellant to pay the respondent’s costs, amounting to $25,000, including disbursements and HST.

For more information see Morey v. C.A.T. Inc., 2023 ONCA 422 (CanLII)