CITATION: Moore v. Apollo Health & Beauty Care, 2016 ONSC 3331

DIVISIONAL COURT FILE NO.: DC-15-551 DATE: 20160616

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

ALEXANDRA EMILY MOORE

Appellant

– and –

APOLLO HEALTH & BEAUTY CARE

Respondent

Alexandra Emily Moore, in Person

Stephanie E. Sangster, for the Respondent

HEARD at Toronto: March 29, 2016

Stewart J.

REASONS FOR DECISION

Nature of the Appeal

1The Appellant Alexandra Emily Moore (“Moore”) appeals the decision of Deputy Judge Bay of the Small Claims Court dated January 9, 2015 which dismissed her claim for damages from the Respondent Apollo Health & Beauty Care (“Apollo”) following a trial and the further decision of the trial judge dated September 28, 2015 which dismissed Moore’s motion for review of his decision.

2Apollo takes the position that there is no basis for interfering with the trial judge’s decisions and they ought to be upheld.

Jurisdiction

3An appeal lies to the Divisional Court from a final order of the Small Claims Court in this action, pursuant to s.31 of the Courts of Justice Act, R.S.O. 1990, c.C.43.

Standard of Review

4The standard of review in an appeal of a final order of a judge is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard of correctness. On questions of fact, the standard of palpable and overriding error. On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. With respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

Leave to Extend Time to Appeal

5Moore’s Notice of Appeal was out of time due to her misunderstanding of the effect of her motion for review and thus her inadvertent late filing of the Notice of Appeal. This was explained by her in court. She always intended to appeal the decisions.

6There has been no demonstrated prejudice to Apollo occasioned by this delay. Accordingly, although no formal motion has been brought by her, I am prepared to grant leave to Moore to extend the time for proceeding with this appeal. In my view, the test under Keshavarz v. Zarieh, [2015] O.J. No. 5701 has been met.

ANALYSIS

7Moore does not take issue with the determination by the trial judge that she was wrongfully dismissed by Apollo. Similarly, although she may not agree with it, she does not challenge the trial judge’s decision that the employment agreement she had entered into with Apollo when she took the job disentitles her to any extra notice of termination or damages in lieu thereof beyond that which she admits she was given by Apollo.

8The sole issue raised by Moore on this appeal is that she says that she never abandoned her claims for payment for overtime, sick days, lunch and breaks during the course of the trial, as the trial judge found. In doing so, Moore submits that the trial judge made a reversible error in not granting judgment in her favour on these heads of damages, and in failing to award costs to her.

9She likewise submits that the trial judge erred in refusing to grant judgment to her on the motion for review of the trial decision.

10At trial, Moore’s position was that the terms of her employment with Apollo regarding overtime and sick days and such had been set out in an employee handbook at the time of her acceptance of the job. However, she did not receive such payments in strict accordance with those terms. Instead, she said that Apollo unilaterally changed those terms during the course of her employment, without her consent, and she therefore did not receive the full amount of her entitlement.

11Moore advanced these claims in her evidence and submissions at trial as being among her various grievances against her former employer. Her grievances largely related to changes in her duties, deviations from the terms of her job description and inadequate compensation for lunch breaks, sick days and Sunday shifts. These factors were advanced by Moore as supporting her claim that she was wrongfully constructively dismissed.

12Moore did not present detailed evidence at trial regarding any specific overtime hours worked that resulted in pay differential, or lunch breaks, vacation or sick days taken and not paid, or specific dates and documentation that would have permitted the trial judge to determine that part of her claim and to quantify damages.

13In his decision, the trial judge said:

I accept Ms. Moore’s evidence that she was not told during orientation that the paid lunch breaks and sick days described in the employee handbook were no longer provided. The handbook was part of her contract with Apollo. I also accept that double pay for Sunday shifts was changed to time and a half in violation of her contract and that hours were improperly and repeatedly deducted from her time records without justification and in violation of her employment contract. She was denied her contractual benefits. Nothing is more fundamental to the relationship between employer and employee than pay. The company unilaterally changed important elements of the pay package. She refused to sign-off on the changes. These changes in pay were both a violation of her contract and acts of constructive dismissal.

14The trial judge also found that during the course of her evidence Moore had abandoned her claim for unpaid wages as well as missed holiday pay. At paragraph 19 of his decision, he stated:

The claim for lost pay for lunch breaks, sick days, Sunday double-overtime, etc. cannot be awarded for the simple reason that this claim was abandoned.

15In so finding, the trial judge relied upon what he had construed as an express abandonment by Moore of these minor claims in favour of a focus on her allegations of constructive dismissal and her claim for damages as a result.

16The transcript reveals that the following exchange occurred during the course of the trial proceedings:

THE COURT: Are you going to be providing an accounting for all of this at some point?

A. I’m just, I’m just – just stating.

THE COURT: But are you going to be adding all of this up for the court at some point?

A. The breaks, no, I’m just…

THE COURT: Then I hope you’re not expecting to be compensated for them?

A. No, I’m not, I’m just explaining one of the reasons why I left.

17Although submissions at trial did include reference to the issue of payment having not been made in accordance with the employee handbook in existence at the time of Moore’s hiring, these were made in the context of aiding in a determination of whether she had been wrongfully dismissed.

18The trial judge found that Moore had been constructively dismissed. However, he also found that the contract she had signed when she had been hired governed the length of reasonable notice to which she was entitled. She had received that from Apollo. As such, no damages were warranted.

19The trial judge therefore dismissed Moore’s action and her motion for review, but without costs. In so doing, he said that he would have found for Moore but for his view that she had waived and abandoned valid heads of damages.

20Moore challenges the trial judge’s decisions on the basis that she had never at any time abandoned her claim.

21Apollo argues that the trial judge’s finding that Moore had abandoned portions of her claim during the course of trial was reasonable and is entitled to deference. In the alternative, it is submitted by Apollo that, should the trial judge be found to have committed a palpable and overriding error in his finding that Moore had abandoned positions of her claim, Moore failed to prove any damages and the ultimate result should stand.

22In my view, the trial judge made no palpable and overriding error in construing the evidence at trial and Moore’s position as he did. Moore presented no documentary quantification of any losses sustained by her and told the trial judge that she was “just explaining one of the reasons” why she left, i.e., why she claimed that she had been constructively dismissed.

23Although Moore is a self-represented litigant, she is evidently very capable. The trial judge was obliged to be fair and even-handed in his conduct of the trial and could not function as her counsel. Moore did not pursue any specific money compensation for the pay differential issues, and specifically said she was not expecting compensation for them. The trial judge was entitled to conclude that she had abandoned any claim for repayment.

24The motion for review which was heard and dismissed by the trial judge likewise reveals no error. This was not a mathematical or arithmetic slip of the kind that might be capable of correction using that procedure. Rather, it was a substantive determination that could only be reversed or altered on appeal.

25The costs award is a reasonable and proper exercise of the trial judge’s discretion. I see no basis upon which to interfere with it.

Conclusion

26For these reasons, the appeal is dismissed.

Costs

27As the successful party on this appeal, I consider that Apollo is entitled to an award of costs. Taking into account the factors affecting costs, including the principle of proportionality, I am of the view that a fair and reasonable amount to award to Apollo for its costs of the appeal is $2000.00, all-inclusive. Moore shall therefore pay that amount to Apollo within 60 days of the date of release of this decision.

___________________________ Stewart J.