Court File and Parties
COURT FILE NO.: CV-1200451146-0000 DATE: 20170614 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: SVITLANA NOVAK Plaintiff – and – ST. DEMETRIUS (UKRANIAN CATHOLIC) DEVELOPMENT CORPORATION AND UKRANIAN CANADIAN CARE CENTRE Defendants
Counsel: William D. Howse, for the Plaintiff Elizabeth Bowker and Nicola Brankley, for the Defendants
HEARD: May 23, 24, 25, 26, 29, 30 and June 1, 2017
Reasons for Decision
DIAMOND J.
Overview
[1] The defendants carry on business as a not-for-profit senior citizen’s care centre, administered pursuant to the Long-Term Care Homes Act, 2007, S.O. 2007 c.8. In or around the summer of 2008, the plaintiff applied for the position of recreation assistant with the Defendants.
[2] The plaintiff takes the position that she was hired pursuant to an agreement whereby (a) she would commence work on a part-time basis in October 2008, and (b) her part-time status would be transferred to full-time status once the construction of the defendants’ fourth floor specialized care unit (“fourth floor unit”) was completed in or around late 2008.
[3] The plaintiff further alleges that the full-time position earmarked for her was ultimately given to another individual, and the defendants are thus liable for damages for both breach of contract and misrepresentation (both fraudulent and negligent).
[4] The defendants deny that there was ever any such agreement or representation made to the plaintiff, as she had applied for and was hired in a part-time position only.
[5] The original Statement of Claim sought damages for, inter alia, “constructive unlawful dismissal” and intentional infliction of nervous shock. Pursuant to the order dated September 30, 2014 of Justice Belobaba, all of the causes of action advanced by the plaintiff were struck out save for the aforesaid breach of contract, fraudulent and/or negligent misrepresentation, aggravated damages and punitive damages (although damages are clearly not causes of action).
[6] As described in greater detail hereinafter, Justice Belobaba found that all of the other claims fell within the jurisdiction of a Collective Bargaining Agreement which was entered into between the defendants and I.A.M.A.W. Hotel and Healthcare Workers Local 1295 (the “union”) on or about December 23, 2008.
[7] At the conclusion of the trial of this proceeding, I took my decision under reserve. For the reasons which follow, the plaintiff’s claim is dismissed.
Issue #1: Is the plaintiff’s claim barred on the grounds that it was not commenced within the two-year limitation period set out in the Limitations Act, 2002, S.O. 2002, c.24 (“the Act”)?
[8] There is no dispute between the parties that:
- The full-time position allegedly promised to the plaintiff was given to another individual, Nika Goutar (“Goutar”), on or about December 18, 2008;
- Within a matter of days, but certainly by the end of December 2008, the plaintiff was aware that Goutar had been hired for the full-time position on the fourth floor unit;
- By early February 2009, the plaintiff approached and complained to her supervisors, Anna Walpole (“Walpole”) and Sandy Lomaszewycz (“Lomaszewycz”) about Goutar being hired;
- In February 2009, the plaintiff filed grievance no. 2009-003 on the basis that she was “denied the ability to post to a full-time position” within the fourth floor unit;
- On or about March 18, 2009, Lomaszewycz denied the plaintiff’s grievance no. 2009-003;
- By no later than June 8, 2009, the union advised all parties that it would not be taking any further action regarding grievance no. 2009-003 and withdrew that grievance “without prejudice or precedence”;
- On or about June 9, 2011, the plaintiff commenced an application under section 4 of the Labour Relations Act, 1995, S.O. 1995, c.1, against the union for an Order (a) finding that the union failed to fairly and properly represent her, and (b) requiring the union to arbitrate a number of her grievances, including grievance no. 2009-003;
- By decision dated December 2, 2011, the Ontario Labour Relations Board (the “Board”) dismissed the plaintiff’s application, finding that “no union is obliged to refer to arbitration and grievance that has no merit”;
- With respect to grievance no. 2009-003, the Board found that it only had jurisdiction over grievances relating to events that occurred after December 23, 2008 (being the date the Collective Bargaining Agreement was signed), and the plaintiff’s complaints about the defendants’ failure to hire her on a full-time basis pre-dated the signing of the Collective Bargaining Agreement; and
- The plaintiff thereafter commenced this proceeding on April 13, 2012.
[9] As the plaintiff learned by late December 2008 that the full-time position was filled by Goutar, on September 30, 2014 the defendants brought a motion for summary judgment seeking an order dismissing the plaintiff’s claim as being commenced in contravention of the Act. That motion was heard by Justice Belobaba, and the salient portions of his endorsement are as follows:
“Section 5(2) of the Limitations Act provides that a person with a claim is presumed to have known about the loss and that a proceeding would be an appropriate remedy on the day the act or omission on which the claim is based took place “unless the contrary is proved.” I agree with D that in February, 2009 P knew that she was not getting the “promised” Full Time position. However, P has led credible evidence that she reasonably believed, as did her union and D her employer, that her complaint about not getting the “promised” Full-Time position fell within the exclusive jurisdiction of the procedures set out in the Collective Bargaining Agreement. This issue - whether P should in all the circumstances have reasonably concluded in February, 2009 that a civil proceeding would be “an appropriate remedy'” or in December, 2011 when the OLRB decided that the dispute did not fall within its jurisdiction is a question that is more fairly resolved by way of trial, not summary adjudication. I do not think that D’s “parsing” of P’s affidavit evidence is a fair and proper way to resolve this matter. In my view, it is necessary in the interests of justice that the limitations issue proceed to trial.
If I am wrong in this regard, and I am obliged to adjudicate the limitations issue summarily, I would find as follows: that P acted reasonably (given the language in Art. 12 of the CBA and the advice and direction of both her union and her employer) in concluding that a civil proceeding was not an appropriate remedy until December, 2011 when the OLRB released its decision that it had no jurisdiction over the Full Time job dispute. P then commenced this action within a few months, in April, 2012. Hence, there is no limitations problem. (I make this finding without prejudice to D to litigate the limitations issue again, at trial if it chooses to do so.)
Putting the limitations issue to one side, I am not prepared to grant D’s motion to dismiss P’s action. There is a significant factual dispute before me which will require a finding of credibility (e.g. did D verbally promise P that absent a more qualified candidate she would get the Full Time job?). I could conduct a two or three-day “mini-trial” if I had time in my current Class Action schedule, but I do not have such time. It is in the interests of justice that P’s claim of a “promised” Full Time position be decided at a short and expedited trial to be scheduled in the usual course.”
[10] When Justice Belobaba dismissed the defendants’ motion for summary judgment, he did so without prejudice to the defendants’ right and ability to pursue its limitations defence at trial. The defendants did just that, and at the conclusion of the trial, requested that I dismiss the plaintiff’s claim on the basis that it was not commenced within the two-year deadline prescribed under the Act.
[11] As explained below, and having reviewed and heard all of the evidence tendered at trial, I agree with the defendants’ position.
Limitations Act, 2002
[12] Pursuant to Section 5(1)(a) of the Limitations Act, 2002, a claim is discovered on the earlier of the day upon which a person with the claim first knew, or a reasonable person with the abilities and in the circumstances of that person first ought to have known,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of a person against whom the claim was made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.
[13] Section 5(2) of the Limitations Act, 2002 and the jurisprudence developed thereunder is clear that a person with a claim shall be presumed to have known of the matters referred to above on the day the act or omission upon which the claim is based took place unless the contrary is proved. This is a presumption that can be rebutted by a plaintiff with necessary evidence.
[14] As the Court of Appeal for Ontario held in Miaskowski v. Persaud, 2015 ONSC 758, a plaintiff is presumed to have discovered the material facts upon which his/her claim against a defendant is based on the day the accident took place. There is an obligation upon a plaintiff to act with due diligence in determining if he/she has a claim. No limitation period will be tolled while a plaintiff sits idle and takes no steps to investigate any of the matters referred to in section 5(1)(a) of the Act.
[15] A plaintiff is not required to possess a comprehensive understanding of his/her potential claim in order for the limitation period to commence. As held by the Court of Appeal for Ontario in Lawless v. Anderson, 2011 ONSC 102 (C.A.), “the question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant”.
[16] Discoverability is thus a fact-based analysis. The discovery of a claim does not depend upon a plaintiff’s knowledge that his/her claim is likely to succeed, or awareness of the totality of a defendant’s wrongdoing. Knowledge of the material facts, and not the elements of a cause of action, will inform the Court’s assessment of the commencement of a limitation period. A plaintiff must show that he/she was both not subjectively aware of the factors set out in section 5(1)(a) of the Act, and that a reasonable person “with the abilities and in the circumstances of the person with the claim” would also not have been aware of these factors.
[17] In other words, in order to overcome the presumption in section 5(2) of the Act, a plaintiff bears the onus of leading evidence to displace both the objective and subjective components of the tests set out in section 5(1)(a) of the Act, and establish why, with the exercise of reasonable diligence, he/she could not have discovered the necessary material facts prior to the expiry of the limitation period.
[18] There is no dispute that by late December 2008, the plaintiff was aware that (a) her loss/damage had occurred, (b) her loss/damage was caused by an act or omission of the defendants, and (c) that she wanted to seek redress against the defendants for their act or omission. The only issue to be determined at trial was whether, having regard to the nature of the plaintiff’s loss/damage, she knew that a legal proceeding (i.e. an action commenced in the Superior Court of Justice) would be an appropriate means to seek a remedy for her loss/damage.
[19] As per section 5(2) of the Act, the plaintiff is presumed to have known that a legal proceeding was the appropriate means to remedy her loss/damage by late December 2008, or at the very latest, by February 23, 2009 when she filed grievance no. 2009-003. This proceeding was commenced more than three and a half years later. As such, the plaintiff bears the onus to lead the necessary evidence and show that, during that lengthy period, she did not and could not know that a legal proceeding would be the appropriate means to remedy her loss/damage.
[20] On the paper record before him (i.e. in the absence of viva voce evidence), Justice Belobaba found that the plaintiff reasonably believed that her complaint as pursued in grievance no. 2009-003 fell within the exclusive jurisdiction of the Collective Bargaining Agreement, and the plaintiff did or could not have known that a civil proceeding would be the appropriate remedy until the decision of the Board was released. That said, Justice Belobaba clearly found that it was in the interests of justice that the limitations issue proceed to trial.
[21] In my view, the trial evidence leads me to the conclusion that the plaintiff has failed to satisfy her evidentiary onus as prescribed in section 5(2) of the Act. To begin, I am satisfied that, at least initially, the plaintiff was led to believe by the union (and arguably the defendants) that her cause of action was properly subject to the grievance procedure set out in the Collective Bargaining Agreement. When the plaintiff learned of Goutar’s hiring, she complained to both Walpole and Lomaszewycz and received advice and assistance from the union to proceed with her grievance. Accordingly, I am satisfied that, at the outset of this matter, the plaintiff was not aware that a legal proceeding was the appropriate means to seek to remedy her loss/damage.
[22] However, once the defendants dismissed her grievance, and the union took the position that they would not proceed any further with it, the plaintiff led no evidence whatsoever as to what had happened between June 2009 and April 2012. I have no facts upon which to even infer that the plaintiff was under a continuing mistaken belief that a legal proceeding was not the appropriate means to remedy her loss/damage. I do not know if the plaintiff received incorrect advice (whether from a lawyer, union or other person), nor do I know whether the plaintiff may have in fact been considering commencing a legal proceeding during that time period.
[23] As held by Justice Perell in Nicholas v. Tétrault:
“The circumstance that a potential claimant may not appreciate the legal significance of the facts does not postpone the commencement of the limitation period if he or she knows or ought to know the existence of the material facts, which is to say the constitute elements of his or her cause of action…error or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period.”
[24] In Allen v. Dennis P.A. Nimchuk Inc., 2016 BCSC 940, Justice Dillon held:
“The plaintiff argued that the limitation period should not flow because she filed her defamation action in the wrong court. She cited Myer v. Saxton, 2008 BCSC 1685, a distinguishable case because it dealt with the test for setting aside a default judgment. Section 3(2) Small Claims Act, R.S.B.C. 1996, c. 430 is clear that the provincial court does not have jurisdiction in a claim for libel or slander. This argument is without merit.”
[25] The “special circumstances doctrine”, previously available prior to the enactment of the Act, is no longer available to litigants who seek to preserve or toll a limitation period. In Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, the Court of Appeal expressly held that the Ontario legislature did not intend to preserve the Court’s common law discretion to extend limitation periods under the Act by applying the old doctrine of special circumstances.
[26] The Act is intended to be comprehensive. Section 20 of the Act preserves the extension, suspension or other variation of a limitation period “by or under another act.” The plaintiff argues that section 110 of the Courts of Justice Act, R.S.O 1990, c. C-43, allows the Court to transfer “a proceeding or a step in a proceeding that is brought or taken before the wrong court, judge or officer.” In my view, the Courts of Justice Act has no relevance to applications commenced under the Ontario Labour Relations Act. The plaintiff’s application against the union was not commenced in a “court” as that term is defined in section 110 of the Courts of Justice Act, which defines and administers proceedings taken under the Superior Court of Justice, Divisional Court, Family Court, Small Claims Court, and Provincial Court of Justice. Accordingly, section 110 of the Courts of Justice Act has no application to this case.
[27] The provisions of the Act do not mention, directly or indirectly, a plaintiff’s decision to commence a proceeding in the wrong forum as having the effect of preserving or tolling a limitation period. The plaintiff has failed to adduce any evidence in support of her obligation to rebut the statutory presumption that she knew or ought to have known that a legal proceeding was the appropriate means to remedy her loss/damage.
[28] Accordingly, the answer to Issue #1 is “Yes”, and the plaintiff’s claim is dismissed.
Issue #2: Are the defendants liable to the plaintiff for breach of contract and/or misrepresentation?
[29] In the event my conclusion with respect to Issue #1 is incorrect, I now proceed to determine the plaintiff’s claims against the defendants on their merits.
[30] There was a significant divergence between the evidence of the plaintiff (and some of her witnesses), and the defendants’ witnesses with respect to the events between July and October 2008, and specifically what was communicated between the plaintiff and Walpole during that time period. The plaintiff’s causes of action in both contract and tort hinge upon this Court making the findings of fact which she urged at trial.
[31] As the trier of fact, I am charged with determining the truth. On occasion, that task can be rendered unenviably difficult when both sides of a dispute are motivated to offer evidence designed to “fit” within a specific theory of the case. In Prodigy Graphics Group Inc. v. Fitz-Andrews, 2000 CarswellOnt 1178 (S.C.J.) Justice Cameron offered a non-exhaustive list of traditional criteria by which the evidence of each witness, and, where appropriate, the exhibits presented at trial, ought to be assessed:
- Lack of testimonial qualification
- Demeanour of Witness: apparent honesty, forthrightness, openness, spontaneity, firm memory, accuracy, evasiveness
- Bias/Interest in the Outcome (if a party, motive)
- Relationship/Hostility to a party
- Inherent probability in the circumstances i.e. in the context of the other evidence does it have an "air of reality"
- Internal consistency i.e. with other parts of this witness' evidence at trial and on prior occasions
- External consistency i.e. with other credible witnesses and documents
- Factors applicable to written evidence: (a) Presence or absence of details supporting conclusory assertions (b) Artful drafting which shields equivocation (c) Use of language in an affidavit which is inappropriate to the particular witness (d) Indications that the deponent has not read the affidavit (e) Affidavits which lack the best evidence available (f) Lack of precision and factual errors (g) Omission of significant facts which should be addressed, and (h) Disguised hearsay
[32] The assessment of the credibility of witnesses is especially important when bearing in mind the onus of proof. As the trial judge, I must decide whether a specific proposition of fact has or has not been established on a balance of probabilities by the party having the onus of proof. For a party to seek to discharge its legal onus of proof, I must first be satisfied with the credibility and reliability of the evidence in order to be in a position to make the relevant findings of fact.
[33] Put another way, a moving party has the onus of factual proof of the evidence necessary to satisfy its legal burden. As stated by Justice Stinson in Zesta Engineering Ltd. v. Cloutier, 2010 ONSC 5810 (S.C.J.):
“In certain instances it is simply not possible to reconcile some aspects of the evidence that was presented by the witnesses at this trial. In part, I liken the situation to attempting to assemble several old jig-saw puzzles whose various parts have sat, co-mingled, in the bottom of an actively-used desk drawer for a decade: some pieces are missing, some are undecipherable, some have changed over time and no longer fit together, and some are not what they seem to be, all due to the passage of time and intervening events. In this case my task is to use the pieces of evidence to re-create as clear a picture of past events as I can give the foregoing limitations, applying the "real test of…truth" as described above, drawing inferences where appropriate, and applying the rules of burden and standard of proof, as required.”
[34] In evaluating the credibility or reliability of evidence, I look to a number of interrelated factors such as its probability, logical connection with other findings and support from independent facts or documents. As held by Justice Brown (as he then was) in Atlantic Financial Corp. v. Henderson et al, [2007] 15230 (S.C.J.):
“In deciding between these two diametrically opposed positions, I am guided by the observations made about assessing the credibility of witnesses by O’Halloran, J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) where he stated, at page 357:
“The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”
[35] I have carefully listened to and observed the testimony of all of the witnesses called by both parties at trial. I have also reviewed the exhibits relied upon by the parties. The plaintiff’s version of events can be summarized as follows:
- Prior to relocating to Mississauga (described in greater detail hereinafter), the plaintiff resided with her (now) ex-husband John Sitarz (“John”) in Windsor, Ontario.
- On or about July 8, 2008, the plaintiff dropped off her resume and cover letter at the defendants’ place of business.
- The plaintiff met with Walpole on July 10, 2008 at approximately 10:00 am for an initial interview.
- The plaintiff had a second interview scheduled for August 26, 2008 at 3:00 pm with Walpole, but upon arriving at the defendants’ place of business, she was told that the interview would be rescheduled to August 29, 2008.
- On August 29, 2008 Walpole (along with Irena Dounets) conducted a second interview of the plaintiff.
- The plaintiff advised Walpole from the first interview that the plaintiff was looking for a full time job only. The plaintiff was advised that there was no full time position as of yet due to the fourth floor unit not being completed until late 2008.
- During the July 10 and August 29 interviews, the plaintiff was advised by Walpole that she was the only individual qualified for the full time position, and the full time position was hers once the fourth floor unit was completed.
- The plaintiff advised Walpole that she would only relocate from Windsor to the greater Toronto area if a full-time position was available for her. Walpole understood the plaintiff’s position and agreed to provide the plaintiff with the full time position once the fourth floor unit was completed.
- Walpole asked the plaintiff to start work with the defendants on a part-time basis in early October 2008 with the promise that her status would change from part-time to full-time once the fourth floor unit was completed.
- The plaintiff was presented with a part-time employment contract on or about October 28, 2008 and signed it on that day with the understanding that her status would change to full-time within a few months.
- On December 18, 2008, Goutar started work on a full-time basis on the fourth floor. As described previously, the plaintiff took the position that she was wronged as Goutar’s full-time position had been earmarked for the plaintiff.
[36] Both Walpole and Lomaszewycz testified on behalf of the defendants. Walpole was the manager of programs, and also the fourth floor manager (once it opened) until she left UCC in 2011. By the fall of 2008, the funding required for the completion of the fourth floor unit had yet to be finalized, and as a result, the defendants argued that there was no full-time position available until after October 2008, thereby casting doubt upon the plaintiff’s contentions that she was promised the full-time position in the fourth floor unit. While Lomaszewycz testified that there was no doubt the plaintiff was qualified for that position, the full-time position was still not filled and open for consideration by Walpole as late as December 2008.
[37] Walpole testified that in the summer of 2008, the defendants were only hiring for a part-time position as there was no plan in place with respect to staffing the yet to be constructed fourth floor unit. Walpole stated that there was no meeting on July 10, 2008, and that during her meeting with the plaintiff on August 29, 2008 the only position discussed was a part-time position. Walpole did confirm that she spoke to the plaintiff about the possibility of a full-time position opening up in the future, and that the plaintiff could very well fill that position after a further set of interviews.
[38] The plaintiff points to various pieces of objective or other evidence to support her request that I make the necessary findings as she has urged. I will address that evidence accordingly.
The plaintiff’s diaries and the defendants’ job postings
[39] The plaintiff was adamant that she drove from Windsor to meet with Walpole on three separate occasions. Walpole was certain that she never conducted any interview or meeting with the plaintiff in July 2008. Walpole testified that there may have been a cancelled meeting on August 26, 2008 but she does not recall any specifics.
[40] For her part, Irena Dounets testified that she has no recollection of seeing the plaintiff prior to the August 29, 2008 interview in Walpole’s office.
[41] The plaintiff produced copies of her personal diary entries from the 2008 calendar year. She also produced her original diary during her testimony. In her diary, there are entries on July 10, August 26 and August 29 relating to meetings with “Anna”, although it is unclear whether the “Anna” notation on 10:00 am on July 10, 2008 relates to a formal interview/meeting or a phone call.
[42] The defendants submit that the only key fact is that no formal job interview took place until August 29, 2008. The plaintiff testified that during her July 10, 2008 meeting with Anna, she was told by Walpole that there was no full-time position available at the time, but that a further interview would take place after the defendants issued a formal job posting.
[43] The defendants did issue two job postings on July 25, 2008. One job posting was for a part-time position (recreation assistant), and one for a full-time position (recreation assistant/fourth floor specialized unit). While the Collective Bargaining Agreement was yet to be formalized, Lomaszewycz stated that by the summer of 2008, the defendants were attempting to issue the job postings in accordance with the provisions of the Collective Bargaining Agreement which clearly mandated the defendants to allow internal employees to fill potential job vacancies before the job posting(s) were made available to external employees.
[44] Other witnesses called by the defendants, including Bianca Allende (“Allende”, the Human Resources and Manager) testified that job postings are always first made available to internal employees, and if the positions are not filled by the job posting’s expiry date, they still remain open.
[45] While the existence of the plaintiff’s June 10, 2008 diary entry supports some form of communication between her and Walpole at that time, I find the plaintiff’s account of Walpole asking her to come back after the job posting was issued to be confusing. The plaintiff was an external employee, and then that the purpose of the job posting was to provide the internal employees with the opportunity to fill any vacancies. Perhaps the plaintiff was told to re-apply after the expiry of the pending job postings if no internal employees successfully applied. If that was the case, then I am not sure why Walpole would have made any assurances to the plaintiff about a full-time position other than to have her re-apply after the expiry of the job posting made available to internal employees.
The relocation from Windsor
[46] The Windsor home (owned by John) was listed for sale on August 15, 2008. Regardless of what may have happened on July 10, 2008, the decision to list the house for sale was made prior to the plaintiff being formally interviewed by Walpole and Dounets on August 29, 2008.
[47] As at the listing date, John had been employed as an engineer in Sarnia with an annual salary of $165,000.00. John testified that he and the plaintiff were originally planning to re-locate to Sarnia (where he worked), but those plans changed when the plaintiff told him of a full-time job opportunity with the Defendants paying an (approximate) $40,000.00 annual income. John further testified that once he was assured that the plaintiff had secured full-time employment with the defendants, he agreed to re-locate to Mississauga and take a job in Toronto for $120,000.00, which resulted in a greater tax benefit to he and the plaintiff as their total income remain the same but the plaintiff was now taxed at a lesser rate.
[48] John did not enter into an Agreement of Purchase and Sale for the Windsor home until October 22, 2008. He testified that in advance of entering into that Agreement, he heard a telephone conversation on speaker phone between Walpole and the plaintiff during which time Walpole advised the plaintiff that “she had a full-time position after the fourth floor renovations were complete”. This phone call allegedly took place sometime in September 2008.
[49] Walpole made no mention of this phone call with the plaintiff during her testimony. More importantly, the plaintiff herself never gave any evidence that she had a phone call in September 2008 with Walpole, during which Walpole confirmed her full-time position, and allegedly within earshot of John.
[50] John was motivated to sell his Windsor home regardless of whether the plaintiff found employment with the defendants. Interestingly, the plaintiff testified that she told Walpole during both interviews that she was relocating from Windsor to the greater Toronto area. How could she have known this if the Windsor home was yet to be sold?
The plaintiff’s application for benefits
[51] The plaintiff produced a Manulife Financial Group Benefits enrollment application which she completed upon commencing her employment with the defendants. On that application form, there was a box entitled “provide permanent full-time hire date”. Within that box, the date “October 6, 2008” is handwritten. The plaintiff contends that is further evidence that she was hired on a full-time basis starting on October 6, 2008 (being the date of her part-time, signed employment contract).
[52] Allende testified that the pre-printed Group Benefits form is the only form provided by Manulife as the defendants’ benefits provider. According to Allende, both full-time and part-time employees with the defendants enjoy benefits. Manulife simply did not provide a separate form for part-time employees, and thus the defendants simply used the existing form for all their employees.
Conclusion
[53] The defendants never disputed that the plaintiff possessed the necessary qualifications for the full-time position that was ultimately filled by Goutar. The defendants submit that there was never any representation, or agreement, during the summer of 2008 that the plaintiff would commence full-time employment with the defendants as soon as the fourth floor unit was completed.
[54] When the plaintiff delivered her resume to the defendants in early July 2008, there was nothing in the plaintiff’s cover letter that requested a full-time position. During her cross-examination, whenever the plaintiff was challenged on her recollection of the events in the summer of 2008, she became somewhat agitated, and often provided counsel with answers such as “I have proof of that” or “I have a recording of that”, although she never provided such proof other than the documents already filed as trial exhibits.
[55] In my view, the plaintiff’s own evidence from examination for discovery (which was both used in a successful impeachment attempt by counsel for the defendants, and read in to the record pursuant to Rule 31.11(1)(a) of the Rules of Civil Procedure) shows that the plaintiff was (a) at best confused about her employment opportunity with the defendants, and (b) at worst aware that once the full-time position became available she would be no more than a candidate for that full-time position. When asked whether she understood in August 2008 that once the fourth floor was open, she would be “one of the candidates” (along with others) to apply for the full-time position, the plaintiff answered as follows:
“Yeah, she said me, you’ll be guaranteed, then you will be one. For now you’ll be the best candidate guaranteed. There will be full-time job if nobody will be there with your qualifications and experience.”
[56] I find that the plaintiff has failed to prove on a balance of probabilities that there was an agreement, or representation made by the defendants that the plaintiff was guaranteed full-time employment with the defendants. In her own words, she understood that she would be a candidate (albeit, arguably the best candidate) for the full-time position. There was no obligation upon the defendants to hire the plaintiff for the full-time position absent an enforceable agreement to do so, and I do not find the presence of such an agreement, nor do I find that the defendants made a specific representation to the plaintiff that “the full-time job was hers”. The plaintiff knew or ought to have known that she could re-apply for the full-time position, a process which did not guarantee her anything.
[57] Accordingly, the plaintiff’s claim is dismissed.
Issue #3: If the defendants are liable in breach of contract or misrepresentation, what damages did the plaintiff suffer?
[58] The plaintiff’s theory of damages was very confusing. As held by the Supreme Court of Canada in Rainbow Industrial Caterers Ltd. v. Canadian National Railway Co., [1991] 3 S.C.R. 3, a plaintiff seeking damages for misrepresentation is entitled to be put in a position he/she would have been in if the misrepresentation had not been made. Even if I had found that the defendants were liable for misrepresentation, the plaintiff led no evidence as to what damages she suffered as a result of the alleged misrepresentation. Presumably, had the misrepresentation not been made, she and John may have remained in Windsor, or perhaps relocated to Sarnia. There was no evidence of any relocation expenses before me at the trial of this proceeding, and I am thus unable to assess the plaintiff’s claim for damages for misrepresentation.
[59] With respect to the alleged breach of contract, the plaintiff claimed damages for a five year period equivalent to the income she would have received on a full-time basis less the part-time income she was paid. The defendants also led evidence that the plaintiff’s damages for breach of contract ought to be further reduced by additional income she could have made by “bumping” another employee pursuant to the provisions of the Collective Bargaining Agreement after the plaintiff was laid off in June 2010.
[60] There was considerable debate whether the plaintiff’s lay off was properly carried out pursuant to the terms of the Collective Bargaining Agreement and the Employment Standards Act, 2000. In my opinion, the defendants did not comply with their legal obligations when they short-served the plaintiff with her Notice of Lay-Off, thereby preventing the plaintiff from employing the “bumping” option and returning to work in an alternative position. However, as per the Endorsement of Justice Belobaba, the issue of whether the plaintiff was properly laid off is not within the jurisdiction of this Court, and falls within the exclusive jurisdiction of the Collective Bargaining Agreement. As such, it is difficult if not impossible for me to assess the plaintiff’s damages for breach of contract especially since she chose a five year period which is beyond the purported lay-off date.
[61] Had I found the defendants liable for breach of contract, I would have considered ordering a reference on the issue of damages with specific directions. However, given my findings there is no need to make any such order.
Costs
[62] I would urge the parties to try and resolve the issue of costs of this proceeding. Absent an agreement, they may serve and file written submissions to me in accordance with the following schedule:
a) the defendants may serve and file its costs submissions within 14 business days of the release of these Reasons. Those submissions shall be no more than five pages including a Bill of Costs.
b) the plaintiff shall thereafter have an additional 14 business days from the receipt of the defendants’ costs submissions to deliver her responding costs submissions which shall also be no more than five pages including a Bill of Costs.