Peternel v. Custom Granite & Marble Ltd., 2019 ONSC 5064
CITATION: Peternel v. Custom Granite & Marble Ltd., 2019 ONSC 5064
DIVISIONAL COURT FILE NO.: 18-00954
DATE: 20190829
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D. L. Corbett, F. B. Fitzpatrick, F. L. Myers JJ.
B E T W E E N:
TINA PETERNEL
Appellant
M. Munro, for the Appellant
- and -
CUSTOM GRANITE & MARBLE LTD.
Respondent
G. Limberis, for the Respondent
Heard at Hamilton: June 6, 2019
REASONS FOR DECISION
F.B. Fitzpatrick J.
Overview
[1] This is an employment and human rights case. Tina Peternel appeals the decision of Sheard J. dated August 15, 2018: Peternel v. Custom Granite & Marble Ltd., 2018 ONSC 3508.
[2] Ms. Peternel worked for the defendant/respondent, Custom Granite & Marble Ltd. (“Custom”), from May 2010 until December 13, 2013. At that time, she took maternity leave for the birth of her third child. Ultimately, Ms. Peternel did not return to work at Custom. She sued Custom, alleging breach of s. 53(1) of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”), wrongful dismissal, and breach of s. 5(1) of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).
[3] Sheard J. dismissed all of Ms. Peternel’s claims following a trial that lasted eight days.
[4] Ms. Peternel asks that the decision of Sheard J. be set aside. She asks this panel to grant her judgment for $38,000, comprised of $20,000 in general statutory damages and $18,000 for special damages, as well as her costs for the trial and this appeal.
The Applicable Statutory Test
[5] The parties agree that this panel has jurisdiction over this appeal pursuant to s. 19(1.2)(d) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as Sheard J.’s decision is a final order that provided for damages of under $50,000.
[6] Further the parties agree that the applicable standard of review is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Namely:
i. on questions of law, the standard is correctness;
ii. on questions of fact, the standard is palpable and overriding error;
iii. on questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.
Issues on this Appeal
[7] Counsel for Ms. Peternel candidly acknowledged that this was largely an evidentiary appeal. That said, the essence of the appeal is that Sheard J. made an overriding and palpable error by misconstruing the terms of the employment contract before her. Ms. Peternel argues that the evidence at trial revealed that the time of day when she started work was a fundamental term of her employment contract that could not be unilaterally altered by Custom. When she wanted to return to work from her maternity leave, not only was she statutorily entitled under the ESA to be returned to a job that had some flexibility in its start time, it was a breach of contract and a breach of the employer’s duty under the Code for Custom to insist that Ms. Peternel start at 8:30 in the morning each and every day. Ms. Peternel acknowledges that the employer had a clear right to insist that she start at whatever time suited the needs of the business. However, as her job had a flexible start time prior to her going on maternity leave, she asserted that Custom sought to change this fundamental term upon her return without her consent and was therefore obligated to give her reasonable notice of this change. Custom’s failure to give notice meant that it was required to treat Ms. Peternel’s employment as though it was at an end and pay her an amount of reasonable notice commensurate with the factors set out in the seminal employment law case of Bardal v. Globe & Mail Ltd., 1960 294 (ON SC), [1960] O.W.N. 253 (Ont. H.C.).
[8] In addition, Ms. Peternel argued that Sheard J. erred in law by misconstruing the nature of Custom’s duty to accommodate under the Code. Ms. Peternel submitted that setting the 8:30 a.m. start time represented discrimination based on family status under the Code, as this start time interfered with Ms. Peternel’s ability to provide child care for her three children.
[9] Specifically, Ms. Peternel raises six grounds of appeal. They are:
Did Sheard J. err in allowing Custom to advance a defence which was not specifically pleaded?
Did Sheard J. misinterpret and misapply the Appellant’s original employment contract?
Did Sheard J. err in her damages assessment?
Are the reasons for judgment inadequate?
Did Sheard J. err by admitting an email that contradicted the Appellant’s testimony?
Did Sheard J. err in her application of the Human Rights Code?
[10] Ms Peternel also appeals the order for costs.
Summary and Disposition
[11] Sheard J. has not made any palpable or overriding errors with respect to her factual findings, which were based on the evidence presented at trial. Nor did Sheard J. err in law in her interpretation or analysis of either the ESA or the Code. The essential finding in her judgment was that the 8:30 a.m. start time was an existing term of Ms. Peternel’s employment prior to her going on maternity leave. Therefore, her right to be reinstated to her former position as required by the ESA was not violated when the employer insisted she start at 8:30 every morning. Further, the employer’s insistence that she strictly attend work every day at that time did not represent a breach of contract, nor did that start time interfere with her familial relations such that it represented discrimination on the basis of family status.
[12] I agree with Sheard J.’s analysis that Custom’s actions did not engage a duty to accommodate under the Code. As such, there was no other basis for Sheard J. to make any findings that would see the plaintiff recover from the defendant in this case. The trial judge was entitled to dismiss the claim in its entirety based on her findings of fact and the applicable law.
[13] For the reasons that follow, I dismiss the appeal with costs. The parties agreed that the successful party would receive $33,000 for costs inclusive of HST and disbursements.
Issue 1: Did Sheard J. err in allowing Custom to advance a defence which was not specifically pleaded?
[14] Ms. Peternel submits that Custom’s statement of defence failed to plead a material fact concerning the flexibility that Custom had previously afforded Ms. Peternel prior to her going on maternity leave and which was material to the issue of accommodation when Ms. Peternel returned to work. This issue related specifically to the 8:30 a.m. start time, which was the focus of Ms. Peternel’s claim that the employer both materially changed the terms and conditions of her employment and that Custom also failed to accommodate her as required by the Code.
[15] Custom submits that its amended statement of defence clearly set out that it had experienced corporate restructuring and that this required it to more strictly enforce the start time. Custom also submits that Ms. Peternel had agreed to this. Specifically, at paras. 15 and 20 of the amended defence, Custom adequately pleaded material facts that were supported by the evidence at trial. Also, Custom provided answers to pretrial undertakings which identified that any flexibility allowed to Ms. Peternel was due to the efforts of Mr. Card, the owner of the business. Custom submits that the evidence at trial came as no surprise to Ms. Peternel, and therefore, the pleadings properly framed the issues for trial. As a result, Sheard J. committed no error.
[16] The law is clear that litigation must be decided within the boundaries of the pleadings: TSP-Intl Ltd v. Mills (2006), 81 O.R. (d) 266 (ONCA), at para 32. Pleadings are designed to frame the issues, create the boundaries for relevant evidence with respect to documentary and oral discovery, and to eliminate any surprises so that matters can be dealt with on the merits at a trial.
[17] At para. 42 of her reasons, Sheard J. makes an important factual finding on the issue of the start time that Custom required of Ms. Peternel when she was scheduled to return to work in early January 2015. Sheard J. states:
- I accept Custom’s evidence that, because of changing business circumstances, Custom could no longer offer the plaintiff the flexibility of arriving at work much later than 8:30 a.m. I conclude that when it insisted that the plaintiff maintain the original work hours of 8:30 a.m. to 4:30 p.m., Custom was not unilaterally imposing a change that substantially altered the essential terms of the plaintiff’s contract of employment; rather Custom was asking the plaintiff to do what she had done throughout her employment as Scheduler: to be at work when Custom needed her to be there.
[18] In my view, this was a factual finding that Sheard J. was entitled to make on the evidence before her. Counsel for Ms. Peternel did not specifically raise objection to this defence at trial. Further, it is clear that the issue of the express terms of Ms. Peternel’s employment contract and, specifically, her start time were essential aspects of both the claim and the defence at trial. No one was caught by surprise by the positions taken by the parties at trial. There was a factual contest about the previous terms of Ms. Peternel’s employment and, specifically, how flexible Custom had been in the past with regard to the start time and why it was no longer willing to be as flexible when Ms. Peternel was ready to come back to work. Sheard J. made a finding of fact on this issue. There was ample evidence before her. She is entitled to deference on this finding. The material facts of Custom’s defence were clearly disclosed in the pleading, and accordingly this ground of appeal fails.
Issue 2: Did Sheard J. misinterpret and misapply the Appellant’s original employment contract?
[19] Ms. Peternel did not have a written employment contract. The terms and conditions of her employment were to be determined by close scrutiny of the particular facts and circumstances of her time spent at Custom. Ms. Peternel submits that Sheard J. erred in law by taking into account Custom’s economic circumstances in order to find that the employer could require Ms. Peternel to commence work at 8:30 a.m. and no later. Ms. Peternel submits that Sheard J.’s finding of fact about the start time led to an inexorable legal conclusion that the terms and conditions of Ms. Peternel’s contract were changed without her agreement, and therefore, she was, contrary to Sheard J.’s ultimate finding, constructively dismissed.
[20] Custom responds by arguing that Ms. Peternel’s position is premised on the erroneous assumption that Sheard J. made a finding that a flexible work time was a fundamental term of the contract. Custom argues that Sheard J. made no such factual or legal finding and never states that a flexible start time was an essential term of the contract.
[21] Again this issue relates to the 8:30 start time and the findings set out at para. 42 of the judgment under appeal. In my view, Sheard J.’s findings were clear. The parties had agreed to an 8:30 start time in the past. At para. 41, Sheard J. explained: “Despite that Custom had previously granted the plaintiff latitude in the time at which she arrived for work prior to her maternity leave, the evidence leads me to conclude that it always remained a term of her employment that the plaintiff be able to attend work close to 8:30 a.m., if asked to do so by Card, or if required to attend a meeting.”
[22] In fact, Sheard J. found that it was Ms. Peternel who was unilaterally attempting to impose a change by saying that in January 2015 she would not be able to start work at any time before 10 a.m. At para. 43, Sheard J. wrote:
43 When she made it clear to Custom that, because of her childcare responsibilities, the plaintiff would never be available for work before 10:00 a.m., it was the plaintiff who was attempting to impose a unilateral change to the terms of her employment contract by changing her daily start time.
[23] In my view, in making these determinations concerning the fundamental contractual terms, Sheard J. was engaged in an issue of mixed fact and law. I agree with the defence’s submission that, in this regard, the trial judge’s decision should be treated with deference: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 51 and 53. Recently, the Ontario Court of Appeal affirmed this approach in Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 517, 293 A.C.W.S. (3d) 184, when it stated, at para. 27:
27 The question of the proper interpretation of a contract is a question of mixed fact and law: the application of the legal principles for interpreting a contract to the words of the contract and the context in which those words were used. A trial judge's interpretation, like any finding on a question of mixed fact and law, is entitled to deference from an appellate court. An appellate court is justified in intervening only if the finding is tainted by a palpable and overriding error or is unreasonable, or if a question of law can be extricated from the trial judge's process of interpretation. And the Supreme Court of Canada has said “courts should be cautious in identifying extricable questions of law in disputes over contractual interpretation”: see H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 4, 55-56, and 69-71; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 54; and Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688, at para. 45.
[24] In my view, Sheard J.’s findings of fact were available to her on the evidence presented, and the findings were not unreasonable. The evidence at trial focused on the circumstances and actions of the parties related to Ms. Peternel’s start time before she went on maternity leave. At trial, counsel presented a chart of the time Ms. Peternel attended at work, culled from her time cards. A great deal of evidence was focused on the challenges Ms. Peternel was faced with because of her start time and the impact it had on her child care needs, both before and after school. In the face of all this evidence, I agree with the defence’s submission that it was reasonable for Sheard J. to make the conclusion that she did concerning the contractual terms. As the 8:30 a.m. start time was a fundamental term, Custom was not unilaterally changing a term by insisting that Ms. Peternel honour that agreement. As such, no notice was required as nothing was changing in that regard. In my view, Sheard J. did not commit any palpable or overriding error, and her process of interpreting the employment contract was reasonable.
Issue 3: Did Sheard J. err in her damages assessment?
[25] Although Sheard J. dismissed the claim, she assessed Ms. Peternel’s contract damages. Relying on the Bardal factors, she determined that, if Ms. Peternel had been wrongfully dismissed, she would have been entitled to damages equivalent to three months salary. However, Sheard J. also noted that she would have reduced this amount by 40 percent, for a total of six weeks, due to a failure to mitigate.
[26] It is not necessary to decide the issue of damages, given that the plaintiff has lost on the issue of liability, and I decline to do so. The combined effect of selecting a notice period at the lowest end of the appropriate range, and a substantial discount for failure to mitigate, could leave the overall damages award subject to challenge. On the other hand, a trial judge’s decision on these issues is entitled to deference. Since it is not necessary for this court to resolve these points to dispose of this appeal, I would leave these issues to a case where it is necessary for this court to decide them.
Issue 4: Are the reasons for judgment inadequate?
[27] Counsel for Mr. Peternel did not seriously pursue this avenue of appeal during submissions. In my view, the reasons given by Sheard J. were more than sufficient to explain her thinking in coming to the decision that she did and to allow for meaningful appellate review.
Issue 5: Did Sheard J. err by admitting an email that contradicted the Appellant’s testimony?
[28] Counsel for Ms. Peternel acknowledged that the email relates to an issue that was raised for the first time by Ms. Peternel in her examination in chief. Ms. Peternel’s original start date with Custom was unexpectedly put into issue by Ms. Peternel in her examination in chief. It had been a non-issue in the pleadings, and the parties had seemingly agreed on the start date, from which flowed the important issue of how long Ms. Peternel had been employed by Custom when the relationship ended in January 2015. The email was tendered by Custom during cross examination to contradict Ms. Peternel’s testimony. It was clearly a collateral issue, but one that Ms. Peternel raised in an attempt to paint Custom as an unfair employer. There is no doubt that the trial judge used the contents of the email to assess Ms. Peternel’s credibility. The collateral fact rule does not prevent the introduction of evidence for that purpose. Sheard J. noted, at para. 22:
22 At times in her evidence, the plaintiff's credibility suffered. An early example occurred in her evidence about when she first began her employment with Custom. In chief, the plaintiff stated when she was first offered a job at Custom, she had asked to delay her start date by a week so that she could spend more time with her second child. The plaintiff asserted that Custom refused and gave her an ultimatum: “start on Monday or you do not get the job.” That evidence was unnecessary to prove the plaintiff's claim and appears to have been given in order to show that, from the outset, Custom was insensitive and unaccommodating to the plaintiff’s childcare needs. In cross-examination, the plaintiff was confronted with an email that disproved her claim and showed that it was she who chose her start date with Custom.
[29] Rule 30.08(1)(a) gives a trial judge the discretion to admit previously undisclosed documents. In my view, Sheard J.’s interlocutory decision to allow Ms. Peternel to be cross examined on this previously undisclosed email was entirely proper and fair in all the circumstances: the email was not apparently relevant until Ms Peternel gave evidence in her testimony that was inconsistent with it. I would not give effect to this ground of appeal.
Issue 6: Did Sheard J. err in her application of the [Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?
[30] Ms. Peternel argues that Sheard J. improperly interpreted the provisions of the Code in a manner that was unduly restrictive regarding Ms. Peternel’s right to be free from discrimination on the basis of family status. Ms. Peternel submits that Sheard J.’s reasons for decision impermissibly imposed a duty on the plaintiff to positively interact with Custom in coming to an arrangement to accommodate Ms. Peternel’s child care needs. Sheard J. did not provide an alternative assessment of damages for this alleged breach of the Code. Ms. Peternel submits that this too was an error on the part of the trial judge.
[31] Custom argues that the trial evidence did not establish a prima facie case of discrimination on the basis of family status, and Sheard J. was therefore correct in law and in fact to dismiss this aspect of the plaintiffs claim.
[32] The reasons for decision in this matter, at paras. 47-61, disclose Sheard J’s analysis in respect of Ms. Peternel’s claim under the Code. The reasons discuss two leading lines of authority in Ontario concerning discrimination on the basis of family status, that of the Johnstone v. Canada (Border Services Agency), 2014 FCA 110, 239 A.C.W.S. (3d) 826, and Misetich v. Value Village Stores Inc. 2016 HRTO 1229, [2016] O.H.R.T.D. No. 1253. Following a discussion of the evidence concerning the efforts made by both parties to deal with Ms. Peternel’s concerns over how an 8:30 a.m. start time would affect her ability to obtain child care for all three of her children both before and after school, Sheard J. concluded, at para. 74:
74 Whether the Court follows the Misetich approach or applies the Johnstone factors, the outcome is the same: the plaintiff has failed to show that Custom’s request that she begin her workday at 8:30 a.m. is discriminatory. Accordingly, for all the reasons set out above, I conclude that the plaintiff has failed to establish that Custom is in breach of the HRC or is liable to the plaintiff in any way for damages as a result.
[33] I agree with the defence’s submission that it was open to the trial judge to make a mixed finding of fact and law that Ms. Peternel had failed to prove a prima facie case of discrimination based on all of the evidence. The difficulty in this appeal seems to arise from Ms. Peternel’s insistence that Sheard J. misapprehended the evidence regarding Ms. Peternel’s start time. Ms. Peternel insists that the start time was within her complete discretion, such that she could insist on coming in whenever she felt it was appropriate. There was no evidence at trial that specifically demonstrated how Ms. Peternel’s right to care for her children was adversely impacted by Custom’s requirement that she start at 8:30 a.m. each morning. The evidence was the children had to be at the bus for 8:50 am. Ms. Peternel had after school care. There was no indication of how an 8:30 am start time interfered with Ms. Peternel’s ability to provide care both pre and post school for her children. There was a good deal of evidence about how the parties considered alternative start times, for example at 10 a.m., as discussed at para. 65 of the judgment, but overall, Ms. Peternel could not point to evidence that showed how she had suffered adverse treatment and that her family status was a factor in that adverse treatment. Sheard J. made a number of important factual findings in regard to the child care issue, most of which revolved around the trial judge’s assessment that Ms. Peternel had not provided sufficient information to assist Custom in making a determination about how to structure any accommodation.
[34] In my view, the key to all of this was Sheard J.’s finding that, before Ms. Peternel had gone on maternity leave, Custom expected her to be at work for 8:30 a.m. It granted significant leniency and cooperation to her in light of her two pregnancies and a subsequent miscarriage. Sheard J. did not accept that Ms. Peternel could transform the employer’s supportive leniency into a contractual obligation that could be held against it. When Ms. Peternel sought to come back from maternity leave, the start time became an issue. Sheard J., at paras. 47-61, goes through the evidence adduced at trial relating to the Code and comes to a factual and legal conclusion about whether or not Ms. Peternel made out a prima facie case for discrimination. I find no mistake in the trial judge’s legal analysis, nor do I find any palpable and overriding error in her factual findings. I would therefore give no basis to this ground of appeal.
[35] Where a claim is dismissed, the assessment of damages is a discretionary matter for the trial judge. I find no error in Sheard J.’s express decision not to assess damages for the dismissed claim under the Code.
Costs of the Trial
[36] Ms. Peternel seeks leave to appeal the costs award of the trial in the event this court declines to set aside the appeal. The matter took eight days to try. While it was a Simplified Procedure case pursuant to R.76, Ms. Peternel only decided to reduce her claim for contract damages to six months’ notice on the eve of trial. I find that the costs award was proportionate given what was at stake, there is no error in principle in Sheard J.’s costs decision, and I would not grant leave to appeal on this issue.
Decision
[37] For all these reasons, the appeal is dismissed and leave to appeal costs is denied. As agreed by the parties, costs are fixed at $33,000.00 payable forthwith by Tina Peternel to Custom Granite and Marble Ltd.
F.B. Fitzpatrick, J.
I agree _____________________________
D. L. Corbett, J.
I agree ______________________________
F. L. Myers, J.
Date of Release: August 29, 2019
CITATION: Peternel v. Custom Granite & Marble Ltd., 2019 ONSC 5064
DIVISIONAL COURT FILE NO.: 18-00954
DATE: 20190829
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D. L. Corbett, F. B. Fitzpatrick, F. L. Myers JJ.
BETWEEN:
TINA PETERNEL
Appellant
– and –
CUSTOM GRANITE & MARBLE LTD.
Respondent
REASONS FOR DECISION
Fitzpatrick J.
Date of Release: August 29, 2019