Court of Appeal for Ontario

Date: May 11, 2017 Docket: C62816 Judges: Laskin, Lauwers and Brown JJ.A.

Between

Alexandra Emily Moore Appellant

and

Apollo Health & Beauty Care Respondent

Counsel:

• Alexandra E. Moore, acting in person
• Stephanie E. Sangster, for the respondent

Heard: May 1, 2017

On appeal from the order of the Divisional Court (Justice Elizabeth M. Stewart), dated June 16, 2016, with reasons reported at 2016 ONSC 3331, affirming the order of Deputy Judge Michael Bay of the Small Claims Court, dated January 9, 2015.

Decision of Brown J.A.

I. Overview

[1] The appellant, Alexandra Moore, sued her former employer, the respondent Apollo Health & Beauty Care ("Apollo"), in Small Claims Court for constructive dismissal and other employment-related damages. Ms. Moore has represented herself throughout the matter. At trial, she advanced two claims.

[2] First, Ms. Moore alleged Apollo had fundamentally changed the terms of her employment, thereby constructively dismissing her. The trial judge found in Ms. Moore's favour, holding Apollo had constructively dismissed her. However, the trial judge concluded Apollo provided Ms. Moore with appropriate termination notice calculated in accordance with the terms of the employment contract.

[3] Second, Ms. Moore alleged Apollo had failed to pay her amounts for hours she had worked, for two statutory holidays, and for six sick days. The trial judge did not award any amount for these claims on the basis Ms. Moore had abandoned them during her trial evidence.

[4] Ms. Moore appealed to the Divisional Court, requesting that court overturn the trial judge's ruling she had abandoned portions of her claim and his finding on "wrongful termination." A single judge of the Divisional Court dismissed her appeal. Ms. Moore then sought and obtained leave to appeal to this court.

[5] I would not interfere with the trial judge's finding that Apollo provided Ms. Moore with the amount of termination notice to which she was entitled under her employment contract. However, I would allow the appeal in respect of her claim for unpaid wages, statutory holidays and sick days. The trial judge's conclusion she had abandoned her claim was based on a misapprehension of Ms. Moore's evidence and therefore must be set aside.

II. Facts

The appellant's employment

[6] Apollo hired Ms. Moore, an engineer, in November 2012 as a line technician. The company presented her with an employment contract. One term of the contract stated that in the event Apollo terminated her employment, Ms. Moore would "be entitled to receive only such notice of termination, termination pay, benefit continuation and/or severance pay, if any, as are required by the [Employment Standards Act, 2000, S.O. 2000, c. 41] in the circumstances of the termination." The company advised Ms. Moore she was free to seek independent legal advice before signing the contract. She signed the contract without doing so.

[7] Apollo also provided Ms. Moore with an employee handbook, which stated employees were entitled to paid half-hour lunch breaks, double-time for Sunday work, and six paid sick days a year.

[8] By the spring of 2013, three events had transpired. First, Ms. Moore discovered she was not receiving paid lunch breaks, paid sick days or double-time for Sunday work, as represented in the employee handbook. Apollo took the position the handbook was out-of-date, those terms had been changed before Ms. Moore had started her job, and therefore she was not entitled to receive those benefits.

[9] Second, Ms. Moore discovered she was not being given credit for the full number of hours she had worked on several days.

[10] Finally, Ms. Moore's duties expanded from those of a line technician to more managerial responsibilities, akin to a line manager. Her pay, however, did not change.

[11] On May 21, 2013, Ms. Moore provided Apollo with eight weeks' notice of her resignation. In response, the company shortened her notice period to three weeks, relying on the terms of the employment contract.

The trial

[12] A few weeks after her employment with Apollo had ended, Ms. Moore brought an action in the Small Claims Court against the company and some of its employees. Before trial, she withdrew her claim against the employees. As mentioned, her claim against Apollo contained two main components: (i) damages for constructive dismissal, using eight weeks as the appropriate period of notice; and (ii) damages for unpaid wages, two statutory holidays, and six unpaid sick days (hereafter collectively the "Unpaid Wages").

[13] Ms. Moore represented herself at trial. She testified. Apollo called one former employee to testify. The trial judge reserved.

[14] The trial judge held the alteration of Ms. Moore's responsibilities from that of a non-supervisory line technician to a line supervisor was a fundamental change in her job amounting to constructive dismissal. As well, he found the handbook was part of her employment contract. By denying Ms. Moore the listed benefits of paid lunch breaks, sick days and double-overtime for Sunday shifts, Apollo violated the employment contract and committed acts of constructive dismissal. The trial judge concluded Ms. Moore was constructively dismissed.

[15] However, the trial judge went on to find the contract specified the amount of notice to which Ms. Moore was entitled when constructively dismissed. He concluded Apollo provided Ms. Moore with the notice to which she was entitled.

[16] The trial judge found Apollo denied Ms. Moore her contractual benefits for paid lunch breaks, sick days and Sunday double-overtime. As well, he found, at para. 15, "that hours were improperly and repeatedly deducted from her time records without justification and in violation of her employment contract." However, he denied her claim for Unpaid Wages, writing, at para. 19:

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.

Motion for a new trial

[17] Ms. Moore brought a motion for a new trial pursuant to r. 17.04(1) of the Rules of the Small Claims Court, O. Reg. 258/98. Pursuant to rr. 17.04(4) and (5), the Small Claims Court may grant a new trial or pronounce the judgment that ought to have been given at trial and order judgment accordingly where (i) there was a purely arithmetical error in the determination of the amount of damages awarded, or (ii) there is relevant evidence that was not available to the party at the time of the original trial and could not reasonably have been expected to be available at that time.

[18] Deputy Judge Clemenhagen directed a review by the trial judge, writing:

I have reviewed the transcript of the trial. It appears that DJ Bay's finding "in the course of her evidence the plaintiff abandoned her claim for unpaid wages as well as missed holiday and sick pay" was not appearing in the course of her evidence. Therefore, the decision should be reviewed by Judge Bay on this issue to determine if his remarks were supported.

[19] The trial judge subsequently dismissed Ms. Moore's r. 17.04 motion, writing: "My conclusion re waiving heads of damage is substantive, not mathematical."

Divisional Court decision

[20] Ms. Moore appealed to a single judge of the Divisional Court, who dismissed her appeal. In regard to Ms. Moore's claim for damages for constructive dismissal, the appeal judge wrote, at para. 7:

Moore 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.

[21] The appeal judge also rejected Ms. Moore's argument that the trial judge had erred in finding she had abandoned her claim for Unpaid Wages, writing, at paras. 22 and 23:

In 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.

Although 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.

III. First Issue: Damages for Constructive Dismissal

[22] Ms. Moore submits the trial judge erred in relying on the notice provisions of her employment contract to calculate damages for constructive dismissal. She argues that once the trial judge found Apollo constructively dismissed her, the employment contract was void and its terms could not be used to calculate the notice to which she was entitled.

[23] I do not accept this submission. Provisions respecting notice of termination of employment can limit the pay applicable on constructive dismissal: Simpson v. Global Warranty Management Corp., 2014 ONSC 6916 (Div. Ct.), at paras. 3-4; Howard Levitt, The Law of Dismissal in Canada, loose-leaf (February 2017 – Rel. 51), 3d ed., (Aurora: Canada Law Book, 2003), at para. 11:40.10.

[24] In the present case, the terms of the employment contract specifically address the calculation of notice upon constructive dismissal. Section 10 provides:

If Apollo terminates your employment, you shall be entitled to receive only such notice of termination, termination pay, benefit continuation and/or severance pay, if any, as are required by the [Employment Standards Act, 2000] in the circumstances of the termination. This paragraph defines and limits your full entitlement to notice of termination, pay in lieu of notice, benefit continuation and severance pay upon termination of employment, and shall apply regardless of any changes to the terms and conditions of your employment (including changes in position, duties and responsibilities, reporting relationships, and compensation). Please read it carefully.

[25] Accordingly, I see no error in the trial judge's findings that Apollo gave Ms. Moore notice of its intent to terminate "that was well within the contractual requirements" and that Ms. Moore "received what she was entitled to."

IV. Second Issue: Damages for Unpaid Wages

[26] Ms. Moore submits the trial judge erred in finding she had abandoned her claim for Unpaid Wages. His error, she argues, was based on a misunderstanding of her evidence. She contends the error was repeated by the appeal judge.

[27] I accept her submission. To explain why I do requires reviewing the sequence of Ms. Moore's evidence at trial and the trial judge's interactions with her.

Ms. Moore's evidence at trial

[28] Ms. Moore filed a lengthy Claim to start her action against Apollo. Her Claim concluded, at para. 74, with a list of the damages she was seeking to recover: (i) five weeks' additional notice - $5,434; (ii) pay for three days, which included statutory holidays - $452.60; (iii) six paid sick days - $855; (iv) extra hours that she had worked, but had not been recorded by Apollo's plant time clock - $250.83; and (v) $17,500 in punitive and aggravated damages. Paragraph 75 of the Claim set out an itemized, day-by-day calculation of the unpaid work days; para. 77 particularized her claim for unpaid sick days.

[29] As permitted by r. 7.01(2)2 of the Small Claims Court Rules, Ms. Moore attached a number of supporting documents to her Claim, including copies of the Apollo timecards recording her hours of work.

[30] Early in her evidence-in-chief at the trial, Ms. Moore explained to the trial judge that Apollo had not paid her for a number of hours she had worked. The trial judge asked for details. Ms. Moore stated the timecards were attached to her Claim. The trial judge asked her to separate from her Claim those documents she wanted him to consider as evidence. She did, and a bundle of 27 pages of documents was marked as Exhibit 1.

[31] Then, Ms. Moore took the trial judge through the timecards and identified those days on which the plant's time clock had not given her full credit for work.

[32] Ms. Moore next gave evidence on the issue of unpaid sick days. She referred to the employee handbook, extracts from which had been marked as part of Exhibit 1. She testified that she was not paid for six sick days. Her evidence on this issue included the following exchange:

Ms. Moore: And I guess that's really all I have to say about sick days.

Court: Okay.

Ms. Moore: That's, I think, is pretty straight-forward.

In response to a question from the Bench, Ms. Moore identified the dates for which she was claiming sick-day pay.

[33] Ms. Moore then moved on to a new issue: how her job duties had changed, and the basis for her constructive dismissal claim. In that context, she began to testify about how Apollo had not provided paid lunch breaks and double-overtime for Sundays, as had been represented in the employee handbook. In the course of her evidence about Apollo's overtime policy, the court intervened and the following exchange occurred:

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

Ms. Moore: I'm just, I'm just – just stating.

Court: But are you going to be providing an accounting? Are you going to be adding all of this up for the court at some point?

Ms. Moore: The breaks, no, I'm just …

Court: Then I hope you're not expecting to be compensated for them?

Ms. Moore: No, I'm not. I'm just explaining one of the reasons why I left.

Court: Mm-hmm.

[34] Ms. Moore then testified about giving notice to Apollo that she would be leaving the company.

[35] In his reasons, the trial judge stated: "In the course of her evidence the Plaintiff abandoned her claim for unpaid wages as well as missed holiday and sick pay." The appeal judge held that in light of the exchange between the trial judge and Ms. Moore set out in para. 33 above, the trial judge made no palpable and overriding error in construing her evidence as the abandonment of her claim for such damages.

[36] With respect, both the trial judge and appeal judge erred in so concluding. They committed two errors. First, both misapprehended Ms. Moore's evidence and did not assess one short statement made by her in the context of her entire evidence. Second, they failed to take the proper approach in ascertaining whether Ms. Moore, a self-represented person, in fact had abandoned part of her claim.

Misapprehension of the evidence

[37] A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538.

[38] In the present case, the trial judge mistook the substance of Ms. Moore's evidence. When, in answer to his question, Ms. Moore testified that she was not expecting compensation for the unpaid breaks, but just referring to the issue as "one of the reasons why I left," the trial judge mistakenly concluded Ms. Moore was not pursuing her claim for Unpaid Wages. It was not reasonable for the trial judge to reach that conclusion, without further inquiry, in light of: (i) Ms. Moore's itemization of those items in her Claim, together with a calculation of the compensation sought; (ii) her placing the Apollo timecards into evidence; and (iii) her testimony about the specific days for which she sought compensation.

[39] The transcript of Ms. Moore's evidence at trial reveals the trial judge misapprehended her evidence when, in his reasons, he stated that "[i]n the course of her evidence the Plaintiff abandoned her claim for unpaid wages as well as missed holiday and sick pay." She did no such thing. The Small Claims Court reviewing judge properly queried whether there was any support for that conclusion by the trial judge in the evidence. Unfortunately, the appeal judge fell into the same error as the trial judge.

[40] The trial judge's misapprehension of Ms. Moore's evidence was palpable on the face of the transcript. That error was an overriding one, leading the trial judge to deny Ms. Moore damages for a claim in which he had ruled in her favour on the issue of liability. On the basis of that error, I would set aside the trial judge's dismissal of Ms. Moore's claim for damages for Unpaid Wages.

Ascertaining whether a self-represented person has abandoned part of her claim

[41] The new reality of civil litigation in public courts is the significant number of parties who are not represented by a lawyer, but present their own cases. Presiding over a trial where a party is not represented by a lawyer poses distinct challenges for a trial judge, and also brings with it distinct responsibilities.

[42] Both the challenges and responsibilities are succinctly described in the Statement of Principles on Self-represented Litigants and Accused Persons (the "Statement") issued by the Canadian Judicial Council in September 2006. The Supreme Court of Canada endorsed the Statement in Pintea v. Johns, 2017 SCC 23.

[43] The main challenge faced by a trial judge when a party is not represented by a lawyer lies in the difficulty of managing an adversarial proceeding when one party lacks formal training in the law and its procedures. As described by the Statement, at p. 3:

Self-represented persons are generally uninformed about their rights and about the consequences of choosing the options available to them; they may find court procedures complex, confusing and intimidating; and they may not have the knowledge or skills to participate actively and effectively in their own litigation.

[44] While self-represented persons vary in their degree of education and sophistication, I think it safe to say that most find court procedures "complex, confusing and intimidating." That state of affairs gives rise to the responsibility of judges to meet the need of self-represented persons for "simplicity" and to provide "non-prejudicial and engaged case and courtroom management" to protect the equal rights of self-represented persons to be heard: Statement, pp. 4 and 6.

[45] The Statement, at p. 7, offers specific advice to judges about how to meet their responsibilities to self-represented persons in the courtroom environment:

Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.

In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court.

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons. [Emphasis added.]

[46] In the present case, the trial judge did several things to discharge his responsibility to protect the right of the self-represented person to be heard. Ms. Moore had not prepared a formal calculation of damages to place into evidence. However, the trial judge: clarified that some of the documents appended to Ms. Moore's Claim were ones she wanted put into evidence; drew on the resources of the court staff to make copies of the relevant documents; assisted Ms. Moore in marking them as formal exhibits; and asked questions to clarify some of the details of her claim for Unpaid Wages.

[47] However, the trial judge did not make sufficient inquiries before concluding Ms. Moore had abandoned her claim for Unpaid Wages. Where the evidence of a self-represented party raises a question in the trial judge's mind about the specific relief the party is seeking, a trial judge must make the appropriate inquiries of the party to clarify the matter. Those inquiries must be made in a clear, unambiguous, and comprehensive way so that several results occur: (i) the trial judge is left in no doubt about the party's position; (ii) the self-represented person clearly understands the legal implications of the critical choice she faces about whether to pursue or abandon a claim; and (iii) the self-represented person clearly understands from the trial judge which of her claims he will adjudicate.

[48] Deputy judges of the Small Claims Court operate under significant time and volume pressures. As well, they daily face the challenge of trying to modify an adversarial civil litigation process historically predicated on representation by counsel to the increase in self-representation by parties. Nevertheless, such is the new reality. And it often requires a trial judge to take the time to ask those few extra questions to nail down, with clarity for all, the claims of the self-represented person upon which he will adjudicate. Trial fairness requires no less.

[49] In the present case, the trial judge did not make those clear, unambiguous, and comprehensive inquiries. As a result, he proceeded on the erroneous basis that Ms. Moore had abandoned her claim for Unpaid Wages, while Ms. Moore – quite reasonably – thought she had done no such thing. As well, the trial judge failed to inform Ms. Moore clearly that he would not consider her claim for Unpaid Wages, which she had just spent a considerable amount of time reviewing for him. His failure to do so resulted in an unfair trial.

Conclusion

[50] As a result of the trial judge's error in treating as abandoned Ms. Moore's claim for Unpaid Wages, I would set aside his dismissal of that part of her claim. Before us, the parties agreed that claim totaled $1,558.43 ($452.60 + $855 + $250.83). Given the modest amount of damages at issue, this is not a case where the assessment of damages should be referred back to a trial judge. Instead, I would exercise the powers of this court under s. 134(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The evidentiary record supports Ms. Moore's claim for Unpaid Wages. Consequently, I would grant judgment to Ms. Moore in the amount of $1,558.43.

V. Disposition

[51] For the reasons set out above, I would allow the appeal in part. I would set aside the order of the Divisional Court and the order of the Small Claims Court dismissing Ms. Moore's claim for Unpaid Wages. I would grant judgment to Ms. Moore against Apollo in the amount of $1,558.43.

[52] Ms. Moore is critical of the way Apollo's lawyers conducted its defence, going so far to ask this court to refer them to the Law Society of Upper Canada, or to award elevated costs. I see nothing in the record about the conduct of Apollo's lawyers that would justify so doing.

[53] However, I would award Ms. Moore, as the successful party, her costs of the proceedings throughout, in the amount of her reasonable out-of-pocket disbursements fixed at $6,000, inclusive of HST.

Released: May 11, 2017 ("JL")

"David Brown J.A."

"I agree. John Laskin J.A."

"I agree. P. Lauwers J.A."