Mohammed v. Ralota Technologies Inc., 2018 ONSC 3362

Mohammed v. Ralota Technologies Inc., 2018 ONSC 3362

CITATION: Mohammed v. Ralota Technologies Inc., 2018 ONSC 3362

DIVISIONAL COURT FILE NO.: 622/17 DATE: 20180528

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

ALBERT MOHAMMED

Nadia Halum, for the Plaintiff (Respondent)

Plaintiff (Respondent)

– and –

RALOTA TECHNOLOGIES INC.

Mario Josipovic, for the Defendant (Appellant)

Defendant (Appellant)

HEARD at Toronto: May 28, 2018

C. HORKINS J. (Orally)

Introduction and Background

1The defendant/appellant, Ralota Technolgies Inc. appeals the judgment of Deputy Judge C. Bocci dated October 6, 2017.

2The respondent Albert Mohammed, was employed by the appellant. His employment was terminated on May 12, 2015. As a result, Mr. Mohammed sued the appellant in Small Claims Court.

3At trial, the Deputy Judge made numerous findings of fact. In summary, the Deputy Judge preferred the evidence of Mr. Mohammed over that of the appellant’s witness Mr. Barrancos.

4The findings of fact are summarized in para. 58 of the reasons as follows:

In summary, I have preferred and accepted the evidence of the plaintiff where it differed from that of the defendant and have made findings as follows:

(a) The plaintiff was promoted to Quality Assurance Manager in consideration for a salary review and pay increase;

(b) The defendant failed to uphold the agreement in relation [to the] promised salary increase;

(c) The defendant failed to establish on a balance of probabilities that the plaintiff resigned from his employment;

(d) The defendant failed to establish on a balance of probabilities that the plaintiff’s insubordination amounted to just cause.

(e) The plaintiff has established based on a balance of probabilities that he was terminated from his employment without just cause.

5The Deputy Judge found that three months was a reasonable notice period and assessed the damages. It is agreed in court today that a mathematical error was made and that the award should be $10,949.50 and not $11,250.

Standard of Review

6The appellant argues that the Deputy Judge made errors of fact. No errors of law are alleged. This court has jurisdiction to hear the appeal. The standard of review is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Dealing with alleged errors of fact, the standard is palpable and overriding error.

7As stated in Housen, a palapable and overriding error is one that is “so obvious that it can easily be seen or known”. In L. (H) v. Canada (Attorney General) 2005 SCC 25 at para. 69, the court explained that for a palpable error to be overriding it must “discredit the result”.

8As I will now explain, the appellant has failed to show that the Deputy Judge made any palpable and overriding errors of fact. The appellant’s argument in essence deals with one alleged error of fact, the failure of the Deputy Judge to consider part of the Mr. Barrancos’ evidence.

The Evidence

9To put this in context, I will review some of the evidence.

10First, Mr. Mohammed was clearly unhappy at work. As the Deputy Judge found, he had been promoted to Quality Assurance Manager but was not given a pay raise. His responsibilities and work had significantly increased.

11On May 4, 2015, Mr. Mohammed sent Mr. Barrancos, his immediate supervisor, an email. This email is referred to in full in the Deputy Judge’s reasons at para. 16. In this email, Mr. Mohammed requested a raise, referred to his increased workload and responsibilities, pointed out that he was underpaid according to Workopolis and said that he was “looking to leave”.

12On May 11, 2015, Mr. Mohammed was told that his request for a raise was refused. On May 12, 2015, Mr. Mohammed emailed Mr. Barrancos and it was on this day that Mr. Mohammed’s employment came to an end. This email and what happened after it was sent are central to the appeal.

13The email is reviewed in para. 19 of the reasons as follows:

It is not disputed by the parties that upon being notified of the denial of salary increase, the plaintiff informed Mr. Barrancos that he no longer wished to continue managing the Quality Assurance team and that he would be continuing to perform his duties as a Business Analyst. The plaintiff confirmed his decision in writing in an email directed to Mr. Barrancos dated May 12, 2015, that states as follows:

“Hey Juan,

I know I’m probably driving you crazy and not making your life any easier: D

But anyways, EOD I’ll be transferring QA responsibilities over to Edwin since he is your most senior QA. I’ll be reprising my role as BA, and everything should work as normal.

If there is a problem with that, well I’m prepared to be fired. Given that my contract is a BA position, and has nothing to do with my current additional duties (QA/BD) I won’t be performing these additional tasks any longer.

Just a headsup that I’ll be discussing these matters with Edwin and QA by EOD.”

14Mr. Mohammed’s evidence about what he did on May 12, 2015 after sending this email was clear. For the rest of the day, he said “I did my job all my duties”. He was questioned as follows and gave the following evidence:

Q. Including the quality assurance manager duties?

A. Yes.

Q. Okay, in your e-mail you said end of day, you’ll be transferring your quality assurance duties. What, if any, duties did you transfer?

A. Nothing.

Q. Why didn’t you transfer those duties?

A. I just didn’t have the chance. I was busy.

Q. Okay and what happened at the end of the day?

A. I got pulled aside by Juan. He told me that they’re accepting this as a letter of resignation and was asked to leave.

Q. Okay. When did you say you were resigning?

A. I never said I was resigning.

15After Mr. Barrancos received Mr. Mohammed’s May 12 email, he spoke that day to members of Mr. Mohammed’s team to see if Mr. Mohammed had followed through with his intention to relinquish his duties. Mr. Mohammed had been in a meeting with his team that afternoon, after sending his email.

16The appellant says that the Deputy Judge committed a palpable and overriding error because she did not consider the following evidence from Mr. Barrancos about his discussion with members of Mr. Mohammed’s team.

17The evidence that Mr. Barrancos gave is as follows:

Q. And what happened later that day?

A. Later that afternoon, they had - the QA team had a - the usual meeting, and after they came out and then I asked a number of the team guys, and the guy told me everything, pretty much, he told me that effectively Albert said “No, I’m going back to my previous role as BA. I won’t be the QA team leader anymore.” So effectively he transferred his responsibility, he give them away, gave them away.

Q. Okay and then – and then what happened?

A. At the end of the day, near 4 p.m. kind of, is that I walked him away. I said “Okay, well thank you Albert, but we are accepting this is your resignation.”

18When cross-examined, Mr. Barrancos testified that he did not attend this team meeting. In fact, the cross-examination showed that he was not told by members of the team that Mr. Mohammed had transferred the work and responsibilities.

Q. Throughout the day, Albert completed his quality assurance team leader duties for the rest of the day.

A. Correct.

Q. He said he transferred his quality assurance duties?

A. How he transferred, the details of how he transferred I don’t know.

Q. Right?

A. As I said, after they had the meeting in the afternoon, I asked Edwin the other team member what happened in the meeting?

Q. Okay and Edwin told you that he would transfer his duties?

A. And he told me that he was Albert had told him that he was going to go back to be BA and that he was no longer being a team leader

Q. So anyone never said Albert was going to transfer his duties?

A. Not that I recall those exact words.

Q. Okay. In that team meeting, Peter Katarenios was there?

A. Yes.

Q. Stuart was there?

A. Correct.

Q. And Edwin was there because he told you?

A. Correct.

Q. Stuart and Peter aren’t here today?

A. Correct.

Q. They would have. First they would have firsthand they would have had direct knowledge of what happened at the meeting?

A. I hope so.

Q. Okay and Edwin told that day that he - that Albert said he would reprise his role as BA?

A. That’s correct.

19It is important to note that members of the team that Mr. Barrancos spoke to did not testify. Furthermore, the hearsay evidence of these members does not support the appellant’s argument that Mr. Mohammed transferred his responsibilities and/or work at this meeting.

20After Mr. Barrancos spoke with the team members, the employer concluded that Mr. Mohammed had resigned. Mr. Barrancos gave the following evidence:

Q. At the end of the day, May 12, 2015 you told him that you would accept his resignation, his e-mail as a resignation?

A. Yeah, I said as you continue with the termination we will accept this as your resignation.

Q. Albert never said he was resigning?

A. Yeah, he said I don’t know, he said I’m not resigning. “You’re firing me?” I said, “No. I’m not firing you. As I said, this is in order to not taint your record of employment. We will accept this - accept this as a resignation, more because it has that time saying that EOD (ph), I will be transferring my responsibilities over to Edwin – Edwin, and I’ll replace my role with CA.

Q. He never - he never handed you a letter saying he was resigning?

A. He handed - he sent me this email, right?

Q. Right?

A. And again, based on discussion with – settled, he already handled this.

Q. In that e-mail, he never said he was quitting?

A. No, he’s not saying.

Q. Okay. Albert was working for most of the day on May 12, 2015?

A. Yes, correct.

Q. Okay, and you are the one who asked him to leave?

A. Yes…

Q. And he…

A. …I walked him out.

Q. You walked him out. He left only after you asked him to?

A. Yes, after we sat down, as I explained, yes.

21At the trial, the appellant did not call the team members to testify about what happened in the team meeting. Further, Mr. Mohammed was not even cross-examined about this meeting. I see no palpable and overriding error of fact given the reasons of the Deputy Judge and the evidence I have reviewed.

22I appreciate that the Deputy Judge did not review the hearsay evidence but if she had done so, it would have made no difference to the result. As stated by the Supreme Court of Canada it would not “discredit the result”. A judge is not required to review all of the evidence in her reasons. Clearly, this Deputy Judge preferred the direct and unchallenged evidence of Mr. Mohammed over the hearsay evidence that did not even support what the appellant now argues; specifically that Mr. Mohammed transferred his duties in the team meeting.

23Therefore the Deputy Judge’s findings of fact in para. 36 are sound and contain no error whatsoever. In para. 36 the judge stated:

The plaintiff testified that upon receipt of his email, dated May 12, 2015, Mr. Barrancos asked him to reconsider his position. He proceeded to do his job including the Quality Assurance manager duties for the rest of the day. At the end of the day, he got pulled aside by Mr. Barrancos who advised him that he was accepting his letter of resignation. According to the plaintiff’s testimony, he did not end up transferring his duties that day. He was then escorted from the premises.

24The parties agree that the Deputy Judge correctly stated the law at para. 42:

The onus rests on the defendant to establish on a balance of probabilities that the plaintiff voluntarily resigned from his employment. As aforesaid, case law establishes that a voluntary resignation by an employee requires “a clear and unequivocal act by the party seeking to end the employment.” Beggs v. Wesport Foods Ltd., 2011 BCC 76. In this case, the defendant relies on the contents of the said email received from the plaintiff, dated May 12, 2015, wherein he advises that he would be transferring his QA responsibilities to the most senior QA member and would be continuing to work as a Business analyst. It further indicates that he was prepared to be fired for so doing. In fact, the evidence of the plaintiff is that he continued to work that day performing all of his responsibilities inclusive of those of QA manager and had not yet transferred any responsibilities to any other worker. The defendant has provided no evidence whatsoever to contradict the plaintiff’s testimony in this regard. The plaintiff’s email does not in my view support a voluntary resignation of employment.

25In summary, even if the Deputy Judge had reviewed the hearsay evidence in her reasons it would not have made a difference since the law requires “a clear and unequivocal act”. There is no doubt that the hearsay from the team members lends no support to the appellant’s argument that Mr. Mohammed voluntarily resigned. For these reasons, the appeal is dismissed. On consent, the damages shall be reduced to $10,949.50.

Disposition and Costs

26I have endorsed the Appeal Book and Compendium as follows: “For oral reasons given today the appeal is dismissed. The damages are reduced on consent to $10,949.50. The appellant shall pay the respondent his costs of the trial and this appeal fixed on consent at $12,397.01 all inclusive.”

___________________________ c. horkins J.