CITATION: DESJARDINS v. VAN IERSEL, 2014 ONSC 6921

COURT FILE NO.: DC – 1-14

DATE: 2014/11/24

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MADELAINE DESJARDINS, Appellant

AND:

CORY VAN IERSEL, Respondent

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: Appellant – self-represented

Respondent – self-represented

HEARD: November 21, 2014

ENDORSEMENT

Background

[1] This matter comes before me as a single judge of the Divisional Court. The appellant appeals from the judgment of Deputy Justice S. McGill of the Small Claims Court at Kitchener dismissing her action for unpaid wages in the sum of $14,920.00 alleged to be owing to her by a corporation Corry’z Roofing Inc. (the “Corporation”), of which the respondent is the sole officer, director and shareholder.

Findings and Reasons of the Trial Judge

[2] The trial judge held that the action was statute-barred under the Limitations Act, 2002, S.O., c. 24, Sched.B. (the “Act”). She found that the evidence of the appellant was that on October 28, 2011 she was fed up with not being paid her wages by the Corporation and, as a result, quit her employment. She found that, as the office manager of the Corporation, the appellant was in control of calculating what the unpaid wages were. She knew for which weeks she had been paid and for which weeks she had not been paid and she provided all of that information to support her claim for employment insurance.

[3] The trial judge found that, in the context of the appellant’s position that her resignation was forced because she had not been paid for a length of time, the employment insurance office initiated an investigation. She found that the appellant was in control of all of the information with respect to the weeks paid and the weeks unpaid and she had already carried out a calculation of the amount owing to her prior to making her decision to quit on October 28, 2011.

[4] The trial judge found that all the relevant parts of the cause of action, namely, the existence of the contract, the agreement that the appellant was to be paid, the fact that she had not been paid and a “big part of the damages” were known to the appellant on October 28, 2011. The action was not commenced until December 11, 2013. The trial judge found that, by the time the action was commenced, the limitation period under the Act had expired and it was therefore statute-barred. The trial judge held as follows:

“this is not even a grey area where damages were unknown to her. She knew the damages when she quit, she produced the evidence upon which the EI ruling was made. The damages were so severe that it motivated her to quit her job. She knew it all and just did not act for two years or more and therefore I cannot let the claim go forward”.

[5] The trial judge went on to hold that she would have been unable to quantify the unpaid wages, even if she had made a different decision on the limitation period, on the basis that the evidence was insufficient and contradictory. In particular, the parties filed conflicting photocopies of government documents purporting to define the insurable earnings for the appellant under the Employment Insurance Act. The trial judge found that the evidence was inconclusive with respect to the amount of the unpaid wages and accordingly the appellant had not met her burden of proof on that issue.

[6] The trial judge went on to hold that, separate and apart from the calculation difficulty, the actual agreement between the parties remained unclear.

[7] In the result, the trial judge found that the appellant’s claim for unpaid wages was unsuccessful for insufficient evidence as well as on the basis of the expiry of the limitation period.

Grounds of Appeal

[8] The notice of appeal sought that the judgment be set aside and that judgment be granted in favour of the appellant. The grounds set forth were as follows:

(a) legal representation failed to supply documentation within the time line specified by the court. This infraction caused deadlines not to be met, thus causing the dismissal; and

(b) witness’ and evidence supplied to legal representation not available to the court.

[9] It became apparent during the appellant’s submissions that the first ground of appeal related to a claim that appellant’s paralegal failed to commence the action on a timely basis notwithstanding the appellant having provided the pertinent documentation to him at the time of his retainer in February 2012. It also became apparent that the second ground of appeal related to a claim that the appellant’s paralegal failed to present evidence and documentation in court which he had in his possession.

Discussion

[10] Section 4 of the Act provides that, unless provided otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. Subsection 5(1) provides that a claim is discovered on the earlier of:

(a) the day in which the person with the claim first knew that the injury, loss or damage had occurred, that it was caused by or contributed to by an act or omission, that the act or omission was that of the person against whom the claim is made and that a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a) above.

[11] Subsection 5(2) provides that a person with the claim shall be presumed to have known of the matters referred to in clause 5(1)(a), on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[12] The appellant acknowledged in her testimony at trial that, at the end of October, 2011, she knew that she had been unpaid by the Corporation for number of weeks, and she quit her employment as a result. She testified that she approached the Ministry of Labour regarding her claim for unpaid wages and was told that the Ministry could not assist her because the amount that she was claiming exceeded $10,000 and that she would therefore have to pursue the matter in court.

[13] The appellant argues that the two year limitation period under the Act did not begin to run until December 30, 2011 when the federal government office handling the appellant’s employment insurance claim completed its investigation and made its determination of the appellant’s “insurable earnings” for the purposes of employment insurance. She submits that until that determination was made she did not have an exact calculation of the amount of her claim against the Corporation and the respondent.

[14] It is clear that section 5 of the Act does not require the person with a claim to have knowledge of the full extent of his or her damages or the precise amount of his or her claim in order for the limitation period to begin to run. In this case it was sufficient that the appellant knew, as of the end of October 2011, that there were unpaid wages owing to her caused by an omission of the Corporation and that a court proceeding would be an appropriate means to seek recovery.

[15] As stated by Justice D.M. Brown in the case of Howden Power North America Inc. v. A. Swent & Sons Ltd. 2009 CarswellOnt 8115 (S.C.J.) at para. 50 “the jurisprudence is clear that the subsequent discovery of additional evidence in support of the claim does not postpone the start of a limitation clock to that time.”

[16] In my view, the trial judge did not err in finding that the appellant had discovered her claim against the Corporation and the respondent by October 28, 2011, the date that she quit her employment, which commenced the running of the limitation period, and accordingly, the action was statute-barred. In any event, it was open to the trial judge to find, if necessary, that a reasonable person with the abilities and in the circumstances of the appellant first ought to have known of the matters referred to in clause 5(1)(a) of the Act by October 28, 2011.

[17] In light of my finding that the trial judge did not err in holding that the action was statute-barred, it is not necessary for me to consider the second ground of appeal. I would, however, comment that it was the responsibility of the appellant, and her paralegal, to marshal and present the necessary evidence in support of her claim at the trial. All of the relevant documents were in the possession of the appellant and her paralegal. It cannot be said that the appellant was hindered in the presentation of her case by any act or omission of the respondent.

Disposition

[18] In light of the foregoing, the appeal dismissed.

Costs

[19] The respondent seeks costs in the sum of $1,000 for compensation for inconvenience and expense in responding to the appeal. He indicates that he was required to take time off from his self-employment to attend at the assignment court to set a date for the hearing of the appeal due to the failure of the appellant to agree to a date and to attend the appeal hearing as well as to expend time in preparation of his Factum.

[20] Section 131 of the Courts of Justice Act R.S.O. 1990, c. C.43 provides that the costs of and incidental to a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[21] Since this is an appeal from a Small Claims Court judgment, rule 19.05 of the Small Claims Court rules has some relevance. That rule provides that the court may order an unsuccessful party to pay to a successful party who is self-represented an amount not exceeding $500 as compensation for inconvenience and expense. In my view, this Court is empowered to award compensatory costs for inconvenience and expense to a self-represented litigant in the circumstances. For the purposes of the Divisional Court appeal I am not bound by the $500 limitation set forth in rule 19.05 of the Small Claims Court rules.

[22] In the exercise of my discretion, I order the appellant to pay costs to the respondent fixed in the sum of $750, within 30 days hereof.

D.A. Broad

Date: November 24, 2014