In William Williamson v Brandt Tractor Inc, 2025 ONSC 2571 Justice Akazaki had a situation where the employer was trying to prove just cause on the basis of the cumulative misconduct principle. In order win such an argument, the employer must not only prove a history of disciplinary conduct but the the final incident ( the culminating incident ) was itself worthy of some discipline .
In this case the Plaintiff was a salesperson of tractors. The Plaintiff was dealing with a Customer who later complained to the Mr Clark, the Sales Manager that the Plaintiff had acted in an unethical and unprofessional manner. The Sales Manager made extensive notes of that conversation and testified about at the trial.
The Plaintiff admitted at trial that he and the Customer had a disagreement but denied any of his conduct was unethical or unprofessional.
The Defendant chose not to call the Customer as a witness.
This is what the Judge said :
Nevertheless, the evidence regarding the customer’s version and the grounds for being upset was entirely hearsay. The customer did not testify. Brandt could have summoned him. A negative credibility assessment of Mr. Williamson’s evidence and version of events does not amount to proof that the encounter went precisely as the customer claimed it did. The court had no means of testing the credibility of the customer’s account as related to Mr. Clark. Mr. Clark’s note satisfied neither of the requirements of necessity and reliability for admissibility of hearsay for truth of serious allegations: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, at pp. 546-48. The defence could have summoned the customer but did not do so.
[13] What does the evidence of Mr. Clark’s email as a contemporaneous record of his telephone call with the customer reveal? At most, it proved the customer was upset and took his business to another branch. The court does not know whether the customer in fact went to another branch. It would have been easy enough to prove. The attempt to sell a unit that was still in production is not in itself wrong. In commerce, it is called pre-ordering. It would also have been reasonable to secure the customer’s signature on the purchase agreement, as a condition of holding his place in line. Sales personnel operate with varying degrees of pushiness. The customer may have found this annoying, but the employment status of a long-time employee cannot hang in the balance of a customer’s subjective interpretation of his conduct.
[14] I did not believe much of Mr. Williamson’s evidence. I can accept Mr. Clark’s email for the purpose of establishing that Mr. Williamson had an encounter with the customer. He admitted that much. However, the court cannot rely on a record of an occurrence as proof that Mr. Williamson was in the wrong. The email and Mr. Clark’s telephone call with the customer do not rise to the prima facieproof of facts in the statement. Although Mr. Clark could have been under a duty to record what the customer said, the customer was under no duty to provide an objective account. This differentiates the evidence here from those of duty-bound record-keepers: Ares v. Venner, 1970 CanLII 5 (SCC), [1970] SCR 608, at p. 626.
[15] The defendant therefore did not prove termination for just cause. Consequently, Mr. Williamson is entitled to damages commensurate with reasonable notice at common law.
My Comment;
In the olden days when I went to law school ( 1977 Grad of Osgoode) taking Evidence was mandatory. My understanding is that is no longer the case. I find that in my career as an arbitrator, there is an insufficient understanding both of the rules and the reasoning behind the rules of evidence. Lawyers are not the only ones who suffer from this lack of understanding. I have seen both judges and adjudicators let in evidence that should never be admitted under the guise that they will “give it the appropriate weight “.
Admissibility of evidence is fundamentally different from weighing the evidence. If the evidence is inadmissible, then it cannot be considered for any purpose whatsoever. It does not even make it to the scale to see if it has some weight.
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