On 16 June 2016 the Supreme Court of Canada dismissed the application for leave in Hoang v. Mann Engineering Ltd., a case that went around the Ontario Court of Appeal twice (2016 CanLii 35732 (SCC)).
The facts are relatively straightforward. Mr. Hoang brought an action against the respondents for damages for wrongful dismissal, breach of contract, and withheld sales commissions. He claimed that the respondents terminated him without cause after 8 months of employment and wrongly denied him commissions to which he was entitled under a contract and an amended contract of employment. The trial judge dismissed his action, finding there was just cause for termination and no commission owing (Hoang v. Mann, 2014 ONSC 3762 (CanLII)).
The trial judge noted that credibility was a significant issue. It is fair to say that Mr. Hoang did not fare well in that regard. The trial judge summarized her findings:
“[74] I am satisfied, based on all of the evidence, both documentary and viva voce, that there was just cause to terminate the plaintiff. The evidence establishes that the plaintiff failed to complete tasks, failed to proceed with projects and strategies as directed by the defendant, James Mann, such that Mr. Mann had to assume some of those responsibilities himself, such as the lobbying for the FIT applications to fit within the deemed exemption, and indeed some of his inaction resulted in loss of contracts, to the detriment of the company. I am satisfied that the plaintiff displayed unprofessional, uncollegial, insolent, behaviour which is completely unacceptable in a professional workplace. He demonstrated insubordination, failed to follow reasonable instructions of the owner, James Mann, on numerous occasions, culminating in the May 26 exchange e-mails. The plaintiff used rude, aggressive, abusive language, criticized Mr. Mann, questioned his ability to manage and termed his company dysfunctional. He consciously or wilfully failed to follow orders and apologize to his co-workers as ordered by Mr. Mann which, given the circumstances, was a reasonable order and should have been followed. He was, in his treatment of co-workers, sales staff, clients, as well as his superior, insolent, rude and unprofessional.”
Not to put too fine a point on it the employer had cause for termination. The
Mr. Hoang appealed. He was self-represented. Other than finding that $6,250 had been wrongly withheld pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41, the panel of the Ontario Court of Appeal dismissed the appeal (Hoang v. Mann Engineering Ltd., 2015 ONCA 300 (CanLII)). Mr. Hoang retained then counsel who sought to make post-hearing submissions, arguing that Mr. Hoang had been “unable to effectively communicate the nature of the appeal.” The panel concluded: “Arguments to the effect that the panel hearing the appeal made errors in law are properly addressed to the Supreme Court of Canada and not to the panel that heard the appeal.”
Counsel then made a motion, before a different panel, arguing that the “panel’s decision overlooked or misapprehended evidence or overlooked a clear and compelling case on point, and there is the prospect of a very serious injustice absent reconsideration.” This time he was represented by counsel. The Court concluded that Mr. Hoang was merely re-arguing the case before the original panel. The Court concluded that the motion was frivolous, vexatious or otherwise an abuse of the process (Hoang v. Mann Engineering Ltd., 2015 ONCA 838 (CanLII)).