CITATION: Halpin v. Thibault, 2019 ONSC 6879

DIVISIONAL COURT FILE NO.: 18-DC-2428

DATE: 2019/12/09

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aitken J.

BETWEEN:

Dr. David J. Halpin

Plaintiff (Respondent)

– and –

Sangeeta and Didier Thibault

Defendants (Appellants)

Robert Carew, for the Respondent

Self-represented

HEARD: October 23, 2019

REASONS FOR JUDGMENT

Nature of the Proceedings. 3

Small Claims Court Action. 4

Proceedings before the OLRB.. 5

Small Claims Court Trial 7

Ruling of the Small Claims Court Trial Judge Regarding Issue Estoppel 8

Analysis. 8

Standard of Review.. 8

Issue 1: Res Judicata. 9

General Principles. 9

Trial Judge’s Treatment of Res Judicata. 11

Trial Judge’s Calculations. 12

Trial Judge’s Failure to Perform an Analysis Regarding the Exercise of Discretion 12

Disposition Regarding Issue Estoppel 14

Issue 2: Jurisdiction of the Small Claims Court 14

Issue 3: Liability of Didier Thibault to Repay Alleged Loan. 15

Issue 4: Reasonable Apprehension of Bias. 18

Review of Transcripts and Audiotapes. 18

Legal Principles regarding Apprehension of Bias. 24

Application of Legal Principles in this Case. 25

Disposition re Reasonable Apprehension of Bias. 30

Disposition. 30

Powers on Appeal 30

Issues Already Determined. 30

Issue Estoppel 30

Claim against Didier Thibault 30

Issues to be Determined. 31

Claim regarding Loans. 31

Overpayment of Lynn Hogan’s Wages. 34

Overpayment of Canada Pension Plan and Employment Insurance Payments 35

Writing Off Accounts for Alleged Friends. 35

Writing off Accounts for Ms. Thibault’s Mother 35

Costs. 36

Nature of the Proceedings

[1] The Appellants are asking that the decision of a Deputy Judge (“the Trial Judge”) rendered on September 13, 2018 be set aside with costs. They are not seeking a new trial. The grounds for appeal set out in the Notice of Appeal can be summarized as follows:

• The trial record, including the transcript of proceedings and the audiotape of the proceedings, reveals a reasonable apprehension of bias against the Appellants. The Trial Judge did not allow the Appellants to fully present their evidence and to fully make submissions;

• The Trial Judge erred by attributing to the Appellants a defence which they did not advance in their pleadings or at trial;

• The Trial Judge reversed the burden of proof and placed it on the Appellants (Defendants) instead of on the Respondent (Plaintiff);

• The Trial Judge made palpable and overriding errors in his fact finding;

• The Trial Judge made an award of damages that exceeded the maximum of $25,000 allowed under the Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 23(1) and O. Reg. 626/00, s. 1(1); and

• The Trial Judge gave no justification for allowing costs beyond the usual 15% and even surpassed the 30% limit. The Trial Judge also ordered that the Respondent’s disbursements be paid twice.

[2] During submissions, the Appellants also raised the issue of res judicata and the fact that many of the issues addressed by the Trial Judge had already been adjudicated and ruled on by the Ontario Labour Relations Board (“OLRB”). The Respondent’s counsel addressed this issue during submissions and argued that res judicata did not come into play in this case because the OLRB had been dealing with different issues than those raised in the Small Claims Court action. During the trial, the Appellants had attempted to raise res judicata with the Trial Judge but, after hearing from the Respondent’s counsel, the Trial Judge summarily dismissed the notion that res judicata was applicable in this case.

[3] At trial, Sangeeta Thibault also pled that, prior to her resignation from the Respondent’s office, the Respondent had her sign a letter of support to be sent to the Royal College of Dentists of Canada in response to a complaint filed against him. After her resignation from the Respondent’s office, Ms. Thibault sent a follow-up letter to the College which, she alleged, angered the Respondent and resulted in his making unfounded allegations against her. On appeal, the Appellants argued that the Trial Judge had not let them adduce evidence to fully explore this argument. As well, they argued that the Trial Judge had allowed the Respondent’s counsel to aggressively attack the credibility of the Appellants and their witnesses, but had not given them adequate scope to attack the Respondent’s credibility.

History of Proceedings

Small Claims Court Action

[4] The Respondent, Dr. David Halpin, an Ottawa dentist, employed the Appellant, Sangeeta Thibault, as his office manager from October 2013 until September 2016. From late November, 2015, to July, 2016, Ms. Thibault was on maternity leave, but continued to do the office payroll and to offer Dr. Halpin some assistance with other office issues. Ms. Thibault resigned her position in the fall of 2016. The Appellant, Didier Thibault, was at all material times Ms. Thibault’s husband. At no time did he work for Dr. Halpin or have any direct financial dealings with him.

[5] On June 14, 2017, Dr. Halpin commenced a Small Claims Court action against the Thibaults seeking $25,000 in damages. The claim was broken down as follows:

• Against Sangeeta Thibault:

o Damages for fraud, conversion, deceit, unjust enrichment, breach of fiduciary duty and breach of contract in the amount of $25,000;

o Unspecified damages arising out of the detection, investigation and quantification of the losses suffered by Dr. Halpin;

o Unspecified damages for breach of fiduciary duty; and

o Punitive damages.

• Against both Sangeeta Thibault and Didier Thibault jointly and severally:

o Damages in the amount of $10,508 for an outstanding loan;

o An accounting of property belonging to Dr. Halpin that came into the hands of the Thibaults;

o A declaration that Dr. Halpin was entitled to trace the money fraudulently obtained from him by Sangeeta Thibault into and through any financial institutions and assets purchased by the Thibaults (a claim outside the jurisdiction of the Small Claims Court);

o Damages for knowingly receiving moneys from Dr. Halpin which they knew or ought to have known were unlawfully obtained;

o Pre-judgment and post-judgment interest; and

o Costs on a substantial indemnity basis.

[6] In an Amended Claim, Dr. Halpin claimed further damages in the amount of $220 relating to two accounts written off by Sangeeta Thibault. In an Additional Amended Claim, Dr. Halpin claimed further damages in regard to other accounts that were written off.

[7] Dr. Halpin waived any award in excess of $25,000.

[8] The allegations against Sangeeta Thibault were that, while working as Dr. Halpin’s office manager, which position included responsibility for the office payroll, Ms. Thibault did the following:

• Falsified time records to attribute more hours of work to herself than she actually worked;

• Increased her hourly rate of pay from $30 to $32 and subsequently $35 without the knowledge or consent of Dr. Halpin; and

• Increased the rate of pay of another employee, Lynn Hogan, without the knowledge or consent of Dr. Halpin.

[9] The allegations made jointly against Sangeeta and Didier Thibault were that:

• While Sangeeta Thibault was on maternity leave, she and her husband borrowed $10,508 from Dr. Halpin, which they subsequently refused to repay.

[10] The Thibaults denied all the allegations. Sangeeta Thibault pled that the hourly rate increases had been approved by Dr. Halpin and that, at all times, he had been aware of those increases. She did not charge him for time she did not work. At Dr. Halpin’s request, she attended the office on numerous occasions while on maternity leave and he compensated her for that work by issuing cheques to her or to her husband. As she was on maternity leave and receiving Employment Insurance benefits, those cheques were not written as salary cheques but instead had other references on them such as “advance”, “loan”, or “office help”, so that her maternity leave benefits would not be impacted. Ms. Thibault pled that Dr. Halpin was a party to this arrangement. Didier Thibault pled that he had never worked for Dr. Halpin, had never been involved in the operation of the dental practice, had never agreed to borrow any money from Dr. Halpin, and had no contemporary knowledge of Dr. Halpin’s issuing cheques in his name.

Proceedings before the OLRB

[11] After Sangeeta Thibault ceased to work for Dr. Halpin, he withheld her last two weeks pay. Ms. Thibault commenced proceedings under the Employment Standards Act, 2000, S.O. 2000, c. 41 for salary owing. On June 5, 2017, the Ministry of Labour ordered Dr. Halpin to pay Ms. Thibault $1,797.12 for unpaid wages. One week later, Dr. Halpin filed the Claim in this action. Dr. Halpin also brought an application for review of the Minister of Labour’s order to pay. On August 10, 2018, the OLRB issued its decision rescinding the earlier ruling under the Employment Standards Act, 2000 after finding that, in several respects, Dr. Halpin had overpaid Sangeeta Thibault (2018 76786 (ONLRB)).

[12] Before the OLRB, Dr. Halpin argued that he was entitled to withhold Ms. Thibault’s last paycheque because she was overpaid wages for the following reasons:

• She manipulated the time clock to eliminate unpaid breaks from the time she worked, by calculating her hours incorrectly, by saying she worked on days she did not (when the office was closed), and by not clocking out for time she spent receiving dental services from Dr. Halpin;

• She paid herself at rates that were higher than what Dr. Halpin authorized; and

• She did not pay back loans that were made to her.

[13] In regard to these issues, the OLRB made the following factual findings:

• Re unpaid breaks: The time records for Ms. Thibault’s employment did not show breaks taken on 66 days. Every day on which a break was not recorded was a day when Ms. Thibault was improperly paid for 30 minutes not worked. This resulted in her being overpaid $1,064.96 (16 hours x $30 per hour + 17 hours x $32 per hour + vacation pay);

• Re incorrect calculation of hours: Ms. Thibault calculated decimals incorrectly for an overpayment of $133.12 (4 hours x $32 per hour + vacation pay);

• Re working on days when the office was closed: Ms. Thibault did occasionally work in the office when it was closed. Dr. Halpin’s claim that Ms. Thibault was overpaid when she was paid for work when the office was closed was dismissed;

• Re failure to clock out while having dental work done: Ms. Thibault was overpaid for five hours when she was having dental work done. This resulted in her being overpaid $166.40 (5 hours x $32 per hour + vacation pay);

• Re Ms. Thibault’s wage rate: Ms. Thibault’s wage rate increased from $30 per hour to $32 per hour effective January 2015. This wage increase was authorized by Dr. Halpin. Dr. Halpin did not authorize a further pay increase to $35 per hour in July 2016. Consequently, Ms. Thibault was overpaid by $573.61 in regard to an unauthorized pay rate ($3 per hour x 183.85 hours + vacation pay); and

• Re alleged loans from Dr. Halpin to Ms. Thibault: In regard to this issue, the OLRB stated the following at pp. 9-10:

For the reasons given below, it is not necessary for me to determine what portion of the cheques was for hours worked and what portion was a loan. The credibility of both parties on many aspects of this issue is questionable.

The Employer is not permitted to recover unpaid loans pursuant to section 13 of the Act [Employment Standards Act, 2000]

Both parties agree that Ms. Thibault did some work during her maternity leave, although they disagree about the amount. If work was done, Ms. Thibault was entitled to be paid for it. It appears that a portion of the cheques was a bona fide loan or advance and if the Employer wishes to recover that amount, it must do so through other channels.

Accordingly, the Employer was not permitted to withhold any part of the amount of the cheques issued to Ms. Thibault (and to Mr. Thibault) during Ms. Thibault’s maternity leave.

[14] As a result of the specific factual findings made by the OLRB, it was determined that Dr. Halpin had overpaid Ms. Thibault $1,938.09. The amount of Ms. Thibault’s last paycheque that had been withheld by Dr. Halpin was $1,797.12. This resulted in a shortfall in terms of Ms. Thibault’s overpayment of wages in the amount of $140.97. In other words, the OLRB capped the sum owing by Ms. Thibault to Dr. Halpin for overpaid wages at $140.97, after he was allowed to withhold her last paycheque.

[15] However, the OLRB also found that Ms. Thibault had done work for Dr. Halpin while she was on maternity leave for which she had not been paid. The OLRB did not calculate what she was entitled to be paid in that regard, though it did determine that the calculation should be based on the number of hours worked times $32 per hour plus vacation pay. That was the only outstanding issue in regard to Ms. Thibault’s wages that required determination after the release of the Decision of the OLRB dated August 10, 2018. In addition, it remained open to Dr. Halpin to seek to recover in Small Claims Court the balance of the $10,508 he claimed was a loan to Ms. Thibault and/or Mr. Thibault.

Small Claims Court Trial

[16] The Small Claims Court trial occurred on June 26-28, 2018, after the hearing had occurred before the OLRB, but before the OLRB had released its reasons. The parties ended up presenting much of the same evidence that had been presented before the OLRB. It is worth noting that Dr. Halpin was represented by the same counsel before the OLRB, in the Small Claims Court, and on this appeal. The Thibaults were unrepresented by counsel on both earlier occasions and on this appeal.

[17] In support of Dr. Halpin’s pleadings in the Small Claims Court, his counsel adduced evidence during the trial regarding alleged overpayments of wages to Ms. Thibault that had been fully canvassed before the OLRB. He adduced evidence regarding Ms. Thibault’s falsification of time clock entries, her incorrect calculation of her hours of work, her claims of having worked when the office was closed, her not clocking out when she was receiving dental services from Dr. Halpin, and her paying herself at unauthorized rates of pay. He also tendered evidence in an effort to prove that the entire amount of $10,508 that Dr. Halpin claimed was a loan to the Thibaults was in fact a loan to them and that no portion of that sum related to payment of wages to Ms. Thibault for work done on Dr. Halpin’s behalf while she was on maternity leave. Finally, Dr. Halpin’s counsel presented evidence regarding an alleged unauthorized increase in the pay rate of Lynn Hogan, another employee at Dr. Halpin’s office.

Ruling of the Small Claims Court Trial Judge Regarding Issue Estoppel

[18] Following release of the OLRB decision on August 10, 2018, the Thibaults argued that the Small Claims Court Trial Judge should not make a ruling different from those made by the OLRB on the same set of facts. On August 17, 2018, the Trial Judge responded as follows:

I will be making my decision on the issues put before me based upon the evidence presented and the findings of fact to be made in light of the law on the issues pleaded.

The OLRB is bound to make its decision in accordance with the jurisdiction it has. And the issue before it was whether or not the employer could withhold a portion of the employee’s pay to offset a claim(s) the employer may have.

… [excerpts from paragraphs 1, 58-59 of the OLRB Decision not reproduced.]

It is clear that the OLRB fulfilled its mandate in permitting the employer to withhold the subject payment from the employee and the order goes no further than that. Specifically, no orders/judgments were made on the issues before me.

Furthermore, I am not bound by the findings made by the OLRB which presumably is based on the evidence (to which I am not privy) put before it in conjunction with its jurisdiction which is dictated by its governing legislation.

Accordingly, I will in due course deliver my judgment and reasons therefor.

[19] In his Reasons for Judgment, at para. 40, the Trial Judge again reiterated his refusal to accede to the Thibaults’ request that he not make a ruling different from those made on the same set of facts by the OLRB.

Analysis

Standard of Review

[20] In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the Supreme Court of Canada set out the standard of review applicable on appeals from judges’ orders:

• on questions of law, the standard is correctness (at para. 8);

• on questions of fact, the standard is palpable and overriding error (at para. 10); and

• 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. The Court explained, at para. 36:

Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

Issue 1: Res Judicata

General Principles

[21] As explained by Dickson J. in Angle v. Minister of National Revenue (1974), 1974 168 (SCC), [1975] 2 S.C.R. 248 (S.C.C.), the concept of res judicata covers two “species”: cause of action estoppel and issue estoppel. “Cause of action estoppel” precludes a person from bringing an action against another when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction. “Issue estoppel” covers the situation where an earlier cause of action was different, but some point or issue of fact was decided in that earlier action. (See Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 20.)

[22] The requirements of issue estoppel are:

• That the same question or issue has been decided;

• That the judicial decision which is said to have created the estoppel was final; and

• That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

(Angle, at p. 254, Danyluk, at para. 25).

[23] Binnie J. summarized the essence of issue estoppel as follows in Danyluk, at para. 54:

Issue estoppel simply means that once a material fact … is found to exist (or not to exist) by a court or tribunal of competent jurisdiction, whether on the basis of evidence or admissions, the same issue cannot be relitigated in subsequent proceedings between the same parties. The estoppel, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that ‘issue’ in the prior proceeding.

[24] Once the preconditions to the operation of issue estoppel have been established, the court must still determine whether, in the circumstances of the case at hand, the usual operation of the doctrine of issue estoppel would work an injustice (Schweneke v. Ontario (Minister of Education) (2000), 2000 5655 (ON CA), 47 O.R. (3d) 97, 130 O.A.C. 93, at para.38). If that would be the case, the court should exercise its discretion and not rely on issue estoppel (Danyluk, at para. 33). In exercising its discretion, the court must keep in mind that issue estoppel is an equitable principle which is, at its core, a protection against injustice.

[25] Binnie J., in Danyluk, at para. 21, confirmed that, although the rules of cause of action estoppel and issue estoppel were initially developed in the context of prior court proceedings, they have been extended to decisions classified as being of a judicial or quasi-judicial nature pronounced by administrative officers and tribunals. In Danyluk, what was under consideration was the decision of an employment standards officer under the Employment Standards Act, R.S.O. 1990, c. E. 14 as to whether an employee was entitled to certain commissions as part of her wages. The employment standards officer denied the employee’s claim. The employee then sued the employer for wrongful dismissal and claimed the commissions allegedly owing at the time of her dismissal. Although finding that the preconditions for issue estoppel existed, the Supreme Court determined that the trial judge should have exercised his discretion not to rely on issue estoppel because reliance on that concept in the circumstances of the case would have resulted in a serious miscarriage of justice. The employment standards officer had not provided the employee with notice of the employer’s allegation and had not provided her with an opportunity to respond. Therefore, there was an absence of natural justice.

[26] At paras. 18-19 in Danyluk, Binnie J. explained the policy considerations underlying the rule of issue estoppel:

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant … is only entitled to one bite at the cherry. … An issue, once decided, should not generally be relitigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.

Finality is thus a compelling consideration and judicial decisions should generally be conclusive of the issues decided unless and until reversed on appeal.

[27] Binnie J. confirmed that the adjudication of an employee’s claim for wages under the Employment Standards Act is of a judicial nature. He also confirmed that a decision of the employment standards officer, if there is no review by the OLRB, would be considered final. As well, if the matter is referred for a review (as was the case here), the OLRB decision would be considered final as there is no right of appeal beyond that decision. If, as is the case here, the parties in front of the OLRB are the same as the parties to the proceedings where issue estoppel is raised and if some of the issues before the court are the same as those decided earlier by the OLRB, then the three preconditions for issue estoppel have been made out in regard to those issues. The trial judge must then consider whether he or she should exercise discretion not to apply issue estoppel because to do so would cause an injustice in the particular circumstances of the case.

Trial Judge’s Treatment of Res Judicata

[28] In this case, instead of undertaking the required analysis to determine whether issue estoppel was applicable in the circumstances of this case, the Trial Judge summarily rejected the Thibaults’ contention that it was. In doing so, the Trial Judge seemed to focus on cause of action estoppel, rather than issue estoppel, when noting that the OLRB had made a decision in regard to claims over which it had jurisdiction and he was going to make a decision on the claims before him. The Trial Judge conducted the Small Claims Court proceedings as if there had been no earlier proceedings and a final, judicial decision under the Employment Standards Act, 2000. More specifically, he ignored the fact that the OLRB had made numerous factual findings respecting issues about which he was being asked to make factual findings. Additionally, he ignored the fact that Dr. Halpin was allowed to withhold payment of Ms. Thibault’s wages for the last two weeks of her employment in order to recoup what was owing to him from Ms. Thibault regarding the earlier overpayment of her wages.

[29] To recap, the OLRB made factual findings respecting the following issues:

• Ms. Thibault was overpaid $1,064.96 regarding breaks not shown on the time records;

• Ms. Thibault was overpaid $133.12 as a result of miscalculations on her part;

• Ms. Thibault was not overpaid when she was paid for work when the office was closed;

• Ms. Thibault was overpaid $166.40 regarding time when she was having dental work done;

• Ms. Thibault’s wage rate increased from $30 to $32 per hour effective January 2015 and this increase was authorized by Dr. Halpin;

• Dr. Halpin did not authorize a further pay increase from $32 to $35 per hour in the summer of 2016. Ms. Thibault was overpaid $573.61 in regard to that unauthorized pay increase; and

• Ms. Thibault did some work for Dr. Halpin during the course of her maternity leave for which she was entitled to be paid at $32 per hour. The OLRB did not make a specific finding as to the number of hours Ms. Thibault worked during her maternity leave.

[30] As a result of the OLRB’s decision that Dr. Halpin did not have to pay Ms. Thibault for her last two weeks of work, Dr. Halpin recouped $1,797.12 of the excess wages earlier paid to Ms. Thibault. This left a balance of only $140.97 that he could claim from Ms. Thibault to compensate him for any overpayment of her wages.

Trial Judge’s Calculations

[31] The Trial Judge gave judgment to Dr. Halpin against Sangeeta Thibault in the amount of $25,000. Of this total, he attributed $10,508 to the alleged loans that Dr. Halpin had made to Sangeeta and/or Didier Thibault while Sangeeta Thibault was on maternity leave. This finding conflicted with the finding at the OLRB that Ms. Thibault had done some work for Dr. Halpin during her maternity leave for which she was entitled to be paid at $32 per hour, and that, therefore, Ms. Thibault was not liable to pay Dr. Halpin the entire sum of $10,508 even if a court determined that a portion of that sum related to loans to Ms. Thibault or advances against future wages.

[32] The Trial Judge labelled the balance of $14,492 as compensatory damages, but did not specify how he calculated this amount. In his Claim, Dr. Halpin calculated the overpayment of wages to Ms. Thibault as totalling $14,200.98 and the overpayment of her Canada Pension Plan and Employment Insurance premiums as totalling $546.26. It must be remembered, however, that Dr. Halpin did these calculations on the basis of Ms. Thibault’s hourly wage remaining static at $30 whereas the OLRB found that Ms. Thibault’s wage rate had been increased to $32 per hour from January 2015 forward.

[33] In his original Claim, Dr. Halpin calculated the overpayment of wages to Lynn Hogan as being $1,917.57 and the overpayment of her Canada Pension Plan and Employment Insurance premiums as being $1,114.61, for a total of $3,032.18. It is impossible to tell from the Reasons for Judgment of the Trial Judge whether he relied at all on any alleged overpayments relating to Lynn Hogan when he calculated compensatory damages at $14,492. The total amount of the repayment Dr. Halpin claimed to be entitled to receive from Ms. Thibault, as set out in schedules to Dr. Halpin’s original Claim, was $28,260.42. The total damages sought in the two supplementary Claims filed by Dr. Halpin were $752.39. Dr. Halpin waived the amount in excess of $25,000.

Trial Judge’s Failure to Perform an Analysis Regarding the Exercise of Discretion

[34] In addition to not conducting an analysis as to whether the preconditions for issue estoppel existed, the Trial Judge failed to consider whether he should exercise his discretion not to apply issue estoppel in order to achieve fairness between the parties. Such an analysis would have required the judge to consider such factors as the following:

• The wording in the legislation from which the power to issue the administrative order derives. It is to be noted that under s. 97 of the Employment Standards Act, 2000, an employee has to choose whether to file a complaint against the employer under this legislation with respect to an alleged failure to pay wages or whether to pursue an action against the employer in court. The employee is not allowed to do both. It can hardly be seen as fair if the employer can seek relief from the OLRB in respect of such a complaint by an employee and, if not satisfied with the factual findings made by the OLRB, can ask the Small Claims Court to go over the same evidence and come to different conclusions.

• The purpose of the legislation. The purpose of the Employment Standards Act, 2000 is to provide a relatively quick and cheap means of resolving employment disputes (Danyluk, at para. 73).

• The procedure followed by the administrative tribunal. Here, the OLRB conducted a full, two-day hearing when reviewing the decision of the employment standards officer. Dr. Halpin was represented by counsel. Evidence was called by all parties and there was full opportunity to cross-examine witnesses. There was no breach of natural justice as was the case in Danyluk.

• The expertise of the administrative decision-maker. It is well recognized in the jurisprudence that the OLRB has considerable expertise in dealing with employment issues, and a high degree of deference is to be accorded its decisions. (Novaquest Finishing Inc. v. Abdoulrab, 2009 ONCA 491, 95 O.R. (3d) 641, at para. 46 and Kaymar Rehabilitation Inc. v. Champlain Community Care Access Centre, 2010 ONSC 2248, at para. 221).

• The relative vulnerability of the parties. Here, Dr. Halpin was represented at the OLRB by experienced counsel. The Thibaults were unrepresented.

• The potential injustice. The application of issue estoppel in the circumstances of this case would not cause any injustice.

• Contradictory findings. I have already outlined above some of the contradictory findings made by the OLRB and the Trial Judge. In addition to those specific findings, there was the general finding of the OLRB that the credibility of both Ms. Thibault and Dr. Halpin was suspect regarding the payments made during Ms. Thibault’s maternity leave. In contrast, the Trial Judge was highly disparaging of the credibility of the Thibaults and their additional witnesses but concluded that there was no basis to find that Dr. Halpin was lacking in credibility in any respect.

• Bringing disrepute to the administration of justice. If the trial decision at the Small Claims Claim is allowed to stand and override the decision of the OLRB, it would bring the administration of justice into disrepute. It would undermine the expeditious and simplified administrative regime put into place to deal with employment conflicts. It would give the green light to the duplication of proceedings – something that would benefit those with resources and would further disenfranchise those with lesser financial means. It would undermine the goal of finality in litigation.

Disposition Regarding Issue Estoppel

[35] Taking these factors into account, I conclude that the Trial Judge erred in not finding that issue estoppel operated in respect of all the factual findings made by the OLRB, as outlined above.

[36] Had the doctrine of issue estoppel been applied, all that would have remained for the Trial Judge to decide was:

• That, applying issue estoppel, Sangeeta Thibault owed Dr. Halpin $140.97 for an overpayment of her wages;

• Whether Dr. Halpin had proven on a balance of probabilities what portion, if any, of the $10,508 provided to Sangeeta Thibault by way of cheques made out to her or Didier Thibault during Ms. Thibault’s maternity leave amounted to a loan or to an advance on her pay. It was not open for Dr. Halpin to prove that the entire sum amounted to a loan or an advance on pay because the OLRB had already determined that Ms. Thibault had worked for Dr. Halpin during the course of her maternity leave and was entitled to be paid for her work at $32 per hour. The Trial Judge just had to decide how many hours Ms. Thibault worked for Dr. Halpin during her maternity leave;

• Whether Dr. Halpin had proven on a balance of probabilities the terms of any such loan;

• Whether Didier Thibault was legally responsible to repay any portion of the alleged loan;

• Whether Dr. Halpin had proven on a balance of probabilities that: (1) he had not authorized any increase in the wage rate paid to Lynn Hogan while she was working at his office, (2) Sangeeta Thibault knew that he had not authorized any such pay raise, (3) Sangeeta Thibault had nevertheless paid Lynn Hogan at the increased rate from Dr. Halpin’s funds, and (4) Dr. Halpin had not already recovered the alleged overpayment of wages to Lynn Hogan through steps taken directly against Lynn Hogan; and

• Whether Sangeeta Thibault had written off the accounts receivable referenced in the two supplementary Claims knowing that she was not authorized by Dr. Halpin to do so, and Dr. Halpin had not recouped those sums directly from the patients concerned.

Issue 2: Jurisdiction of the Small Claims Court

[37] The Small Claims Court only has jurisdiction where the amount claimed does not exceed $25,000 exclusive of interests and costs. Here, Dr. Halpin made claims totalling $29,012.81, but waived any recovery in excess of $25,000.

[38] The Trial Judge made an order for Dr. Halpin to recover in excess of $25,000; namely, $2,208 from Didier Thibault and $25,000 from Sangeeta Thibault. He lacked jurisdiction to make any such order. It may have been the Trial Judge’s intention to say that Didier and Sangeeta Thibault were jointly and severally liable to pay Dr. Halpin $2,208 and Sangeeta Thibault was liable to pay him a further $22,792 for a total of $25,000; however, that is not how the Trial Judge worded his Reasons for Judgment. For this reason alone, his decision cannot stand.

[39] Furthermore, in his calculations, the Trial Judge failed to take into account that Dr. Halpin had already recovered $1,797.12 from Sangeeta Thibault as a result of the OLRB ruling. The Trial Judge’s order would have resulted in Dr. Halpin recovering this sum twice.

Issue 3: Liability of Didier Thibault to Repay Alleged Loan

[40] In his Claim, Dr. Halpin alleged that Didier Thibault was liable to repay two cheques made payable to him: one for of $1,024 dated December 18, 2015, and one for $1,184 dated January 16, 2016. Dr. Halpin alleged in his pleadings that Didier Thibault received these monies knowing that they had been unlawfully obtained.

[41] Sangeeta Thibault’s evidence at trial was that she had deposited these two cheques into the joint account that she had with Didier Thibault, which she managed. She immediately withdrew the funds and deposited them into her own account. She never told Didier Thibault about these cheques. Ms. Thibault confirmed that the only reason she deposited the two cheques into the couple’s joint account was because the cheque was made out to Mr. Thibault and she could not otherwise cash it. However, as soon as she deposited the cheque, she withdrew it and kept it separate from the funds she held jointly with Mr. Thibault. She did that because these cheques were in payment of services she had provided to Dr. Halpin; they had nothing to do with Didier Thibault.

[42] Didier Thibault’s evidence at trial was that he had no knowledge of these cheques and no knowledge, until much later, that they had been deposited and then immediately withdrawn from the joint account that he held with Ms. Thibault. He confirmed that it was his wife and not himself who managed the joint account. He testified that, at no time, had he done work of any kind for Dr. Halpin and, at no time, had he had any financial dealings with Dr. Halpin.

[43] Dr. Halpin’s evidence was that Didier Thibault had never worked for him nor provided services to him. The men had never had any financial dealings of any kind. Dr. Halpin claimed to have written the two cheques to Didier Thibault at Ms. Thibault’s request and to have included a note about “office help” on the memo line of the second cheque, again, at her request.

[44] It must be remembered that the onus was on Dr. Halpin to prove on a balance of probabilities that there was a factual and legal basis upon which to conclude that Didier Thibault was indebted to Dr. Halpin in the amount of $2,208.

[45] In his Reasons for Judgment, the Trial Judge provided the following conclusory reasons to find Didier Thibault liable to pay $2,208 to Dr. Halpin:

Didier’s evidence was also bizarre. During the course of his evidence he threatened criminal and civil action against the plaintiff. As an RCMP officer he admitted that because he had a high security clearance he was obliged to disclose financial transactions that could be seen to be suspect and therefore compromise his clearance, nevertheless he has not done so [this is not an accurate summary of the evidence]. He claims that he knew nothing about the 2 cheques and that even though they were deposited to a joint account, his wife kept him in the dark. His testimony that he knew nothing about what was going on with his wife and what she was doing while on maternity leave on its face lacks credibility. However, even giving him the benefit of the doubt, the fact of the matter is that he received monies to which he had no entitlement to and for which he is responsible to return. If he has any person to blame, it should be directed to his wife, who put him into that position. For these reasons, he is legally obliged to repay those monies in the sum of $2,208.00. I do not see any basis for holding him liable for the rest of the monies given to the defendant Sangeeta Thibault for which he did not benefit.

[46] The Trial Judge’s assessment of Didier Thibault’s credibility appears to be premised, in great measure, on the assumption that husbands know what their wives are earning and what they are doing with their money. Extensive family law jurisprudence allows me to take judicial notice of the fact that not all married couples handle their finances in the same way. Some share financial information fully and regularly; others do not. And there is everything in between. There is no “one size fits all”. Thus, the notion that Mr. Thibault was not aware of financial arrangements undertaken by Ms. Thibault did not warrant the Trial Judge’s scorn.

[47] The Trial Judge went on to conclude that, even if Mr. Thibault had not known anything about the two cheques and that they had been deposited into a joint account that he held with Ms. Thibault, the mere fact of the cheques being deposited to his joint account rendered him liable for their repayment. The Trial Judge reasoned that Mr. Thibault must have benefitted from the cheques since they went into his account – even if the money only stayed there momentarily and was then removed by Ms. Thibault. There was no evidence before the court that Mr. Thibault had actually received any benefit from these funds; the only evidence was that he had not received any benefit. The Trial Judge did not provide any legal doctrine, principle, or legislative provision to support a finding that a benefit should be imputed to Mr. Thibault in the face of clear evidence that no such benefit existed.

[48] The Trial Judge could have considered the following provision in the Family Law Act, R.S.O. 1990, c. F. 3, s.14:

Presumptions – The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,

(a) The fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants; and

(b) Money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of clause (a). [Emphasis added.]

[49] The evidence regarding the purpose for which Ms. Thibault deposited the two cheques into the joint account, her immediate withdrawal of the two cheques, and her lack of disclosure of the existence of the two cheques and their movement through the joint account, certainly brings into play whether this evidence entails “evidence to the contrary”.

[50] Additionally, the impression left by the Trial Judge’s reasoning was that Mr. Thibault must have or should have known about the two cheques because they were deposited into the joint account. This suggests that the Trial Judge may have had in mind the doctrine of constructive notice. However, the bar for the application of the doctrine of constructive notice is a high one to clear. The Trial Judge made no reference to this doctrine and provided no analysis as to how it would apply in this case.

[51] In the absence of some factual and legal justification to support the Trial Judge’s decision about Didier Thibault’s liability to pay Dr. Halpin $2,208, that decision cannot stand.

Issue 4: Reasonable Apprehension of Bias

Review of Transcripts and Audiotapes

[52] On appeal, the Thibaults submitted that the Trial Judge treated them disrespectfully and unfairly from the commencement of the trial through to submissions, resulting in there being a reasonable apprehension of bias. They pointed to comments that the Trial Judge made during the trial, his tone of voice and general demeanour, his rejection of their requests and submissions, and interruptions he made when the Thibaults’ representative, Warren Thibault was speaking. The Thibaults referred to numerous excerpts from the transcript of proceedings to support their complaint of bias.

[53] I have read the transcript of proceedings in its entirety and have listened to the audiotapes of the proceedings. My observations follow.

[54] When the Trial Judge at the commencement of trial inquired as to who Warren Thibault (Didier Thibault’s father) was because he was sitting at counsel table beside Didier Thibault and Sangeeta Thibault, Warren Thibault started to read a statement. The Trial Judge interrupted him right away in a brusque fashion to ask why Warren Thibault was there. When Warren Thibault responded that he was there as the Appellants’ representative, the Trial Judge understandably asked him what role he intended to play. In response, Warren Thibault asked for permission to read out his prepared statement which turned out to be quite lengthy. The Trial Judge allowed him to do so. There was no objection on the part of the Respondent’s counsel as to the role Warren Thibault wished to play at the proceedings, and the Trial Judge acceded to the request. Not only did the Trial Judge allow Warren Thibault to act as the Appellants’ spokesperson during the proceedings, but also, he gave considerable leeway to each of the Appellants to ask additional questions and to make additional submissions as requested. On only one occasion did he hold the Appellants to the usual procedure that, if they have a representative who is speaking on their behalf, they should not be asking additional questions or interjecting with additional comments.

[55] The Appellants argued on appeal that the Trial Judge treated Warren Thibault in such an aggressive and disrespectful fashion during the first day of trial that they concluded that the Trial Judge “hated” Warren Thibault and that their case would be prejudiced if Warren Thibault continued to speak on their behalf. They claimed to have been put in the position of having to take over carriage of the case themselves, even though they were not prepared to do so. The transcript of proceedings and the audiotape from the first day of trial simply do not support this assertion.

[56] The Trial Judge responded appropriately to objections or questions raised by Warren Thibault or one of the Appellants. He often took the opportunity to explain to Warren Thibault or one of the Appellants aspects of court proceedings or the presentation of evidence that they might not have understood. At times, he pointed out which document was being referenced when one of them was unsure or could not locate it. On one occasion, the Respondent’s counsel objected to the Appellants’ proposed calling of a witness who was not named on their witness list. The Trial Judge overruled the objection and allowed the Appellants to call that witness, though he reserved the right to decide that the evidence she might offer was not relevant to the issues he needed to decide.

[57] There were a few times on the first day when the Trial Judge’s interjections were brusque, such as when he asked if the cheques signed by the Respondent had been cashed, when he asked Warren Thibault what crime he was referring to when Mr. Thibault asked the Respondent if he realized that his behaviour might have constituted a crime, and when the Trial Judge asked Warren Thibault why the Appellants had not requested the original of a photocopied document that had been tendered in evidence if they believed that the original had been altered. That being said, for the most part, the Trial Judge’s manner of communicating with the Appellants and their representative on the first day was calm and even.

[58] On a few occasions, the Trial Judge gave helpful directions to the Appellants or made rulings in their favour. At one point, he explained to Warren Thibault the rule in Browne v. Dunn to ensure that the Appellants were not subsequently prejudiced through Mr. Thibault’s lack of knowledge of this principle. At another point, when Warren Thibault tried to adduce evidence to bring into question the Respondent’s character, the Trial Judge quite properly inquired as to how that evidence was admissible. Upon hearing from Mr. Thibault, the Trial Judge allowed him to continue with his questioning, even though he doubted that the evidence would, ultimately, be relevant to his considerations.

[59] The Appellants complained that the Trial Judge injected into the proceedings a legal argument that they had never advanced; namely, that the Respondent had been negligent in his handling of signing Sangeeta Thibault’s paycheques and, as a result, should be estopped from claiming that they were in error. When Warren Thibault stated that he did not know what the concept of estoppel entailed, the Trial Judge took the time to explain it to him. When Mr. Thibault advised that the Appellants were not advancing a legal theory of the case based on negligence or estoppel, the Trial Judge quite rightly asked Mr. Thibault to explain the legal theory that the Appellants were relying on. He gave Mr. Thibault the opportunity to respond.

[60] The legal theory advanced by Mr. Thibault was that the Respondent had trumped up allegations against Sangeeta Thibault to get back at her for having written a critical letter to the Royal College of Dentists of Canada. Warren Thibault then tried to enter a brief of documents apparently consisting of several complaints against the Respondent over a number of years. Those documents had not previously been produced to the Respondent’s counsel. Initially, and without having heard submissions on the issue, the Trial Judge somewhat hastily ruled that the Appellants could not rely on the documents. However, after Warren Thibault stated that they were very important and relevant documents that made the Appellants’ case, the Trial Judge held a voir dire to determine the admissibility of the documents. Although the submissions made on the voir dire were not recorded, the ruling of the Trial Judge was. It appears that the Trial Judge ruled that one of the documents, not previously disclosed to the Respondent’s counsel, was nevertheless admissible over counsel’s objections for the limited purpose of helping to prove the implied allegation in paragraph 15 of the Appellants’ Defence that the Respondent had started the Small Claims Court action against the Appellants because he was angry at Sangeeta Thibault for having sent a critical letter about him to the Royal College of Dentists of Canada. The Trial Judge gave Warren Thibault considerable latitude in questioning the Respondent about the document in question, despite the Trial Judge’s concern that the line of questioning was not being adequately linked to the defences advanced in the Appellants’ Defence.

[61] Finally, at the conclusion of the first day of evidence, the Trial Judge allowed both Sangeeta Thibault and Didier Thibault to cross-examine the Respondent even though Warren Thibault had already conducted an extensive cross-examination of him.

[62] On the second day of trial, Sangeeta Thibault, and not Warren Thibault, called and questioned three witnesses. On appeal, the Appellants claim that they took over the questioning because they felt that the Trial Judge “hated” Warren Thibault; however, there is nothing in the transcript of proceedings and the audiotape from the first day that would lead a reasonable observer to come to that conclusion.

[63] The Trial Judge gave Sangeeta Thibault the opportunity to make an opening statement. He assisted her by explaining some procedural and evidentiary issues. He gave Ms. Thibault considerable leeway in questioning Lynn Hogan about the Respondent’s work ethics, professionalism and honesty, though he warned her that he could not rely on Ms. Hogan’s opinion evidence in this regard when rendering his judgment. The Trial Judge’s appearance of being calm and impartial went downhill from there.

[64] The Trial Judge was unnecessarily blunt when he interjected during Ms. Thibault’s questioning of Ms. Hogan regarding her not getting her last paycheque from the Respondent and commented: “I’m listening but not interested. What do you hope to achieve by, by this?” The Trial Judge then interrupted Ms. Thibault when she tried to respond to his question. He did try to explain to Ms. Thibault why her line of questioning was inappropriate but did not handle this in a patient or helpful fashion. Similarly, a few minutes later, the Trial Judge once again interrupted Ms. Thibault when she was asking Ms. Hogan about a request from the Respondent to write a letter to the Royal College of Dentists of Canada. Again, in an unhelpful manner, he said: “I guess you’re not hearing and listening to what I’ve been saying. No, all you’re doing is prolonging this without adding much to the equation. … I really don’t care how many complaints she may know, know about or thinks she knows about”. The same comments apply to the interchange a few minutes later when the Trial Judge ruled that Ms. Hogan could not be asked questions regarding productivity at the office when Ms. Thibault was there compared to when she was on leave, and to the questions a minute later regarding the Respondent’s state of mind after Ms. Thibault left his employ.

[65] In these instances, when Ms. Thibault was trying to explain why she was asking the questions objected to, the Trial Judge interrupted her repeatedly and did not give Ms. Thibault the opportunity to explain the relevancy of the questions she was asking. Instead he gave a quick ruling without the benefit of argument from both parties. What must have been confusing is that he told the Appellants that they had to tender hard evidence to support their theory of what had happened between the Respondent and Ms. Thibault all the while limiting significantly the evidence they tried to tender to support their theory of the case. Some of his rulings may ultimately have been correct at law; however, it would have been very difficult for the Appellants to accept that when they were not given fair opportunity to make submissions regarding the admissibility of the evidence.

[66] Considering Ms. Thibault did not have the benefit of legal counsel, it was incumbent on the Trial Judge to ensure that Ms. Thibault had the opportunity to make submissions about the relevancy of her questions and for the Trial Judge to provide more detailed reasons as to why he was ruling the proposed evidence inadmissible. In the last incident referred to above, it took the intervention of Didier Thibault to explain the relevance of the question being asked when the Trial Judge interrupted Ms. Thibault so frequently that she did not have the opportunity to make a coherent argument to him as to why the proposed evidence was relevant to their theory of the case. At that point, the Trial Judge retracted his ruling and did allow Ms. Thibault to ask some questions for the limited purpose of proving that the Respondent’s lawsuit against the Appellants was nothing but a vindictive response to Ms. Thibault leaving his employ, as impliedly alleged in paragraph 15 of their Defence.

[67] There was a marked contrast between the restraints placed on the Appellants’ questioning of witnesses – including the Respondent – about the atmosphere at the Respondent’s office and the relationship between the Respondent and his staff, and the leeway given to the Respondent’s counsel on cross-examination of Lynn Hogan and Samantha Bayly to explore this same territory. The Respondent’s counsel cross-examined in a very aggressive fashion, frequently interrupting the witness and reframing her evidence to be something other than what the witness had originally stated or clarified. His cross-examination became a trial within a trial to undermine the credibility of each witness, whereas the Appellants were restricted as to what they could pursue with the Respondent to challenge his credibility.

[68] When Warren Thibault objected to the manner of cross-examination, complaining that the Respondent’s counsel was badgering the witness, the Trial Judge once again interrupted Mr. Thibault, did not allow him to elaborate on his objection, and remarked sarcastically that Mr. Thibault had been watching too much American TV – a statement that he had levied at Warren Thibault on the previous day. When Warren Thibault asked for the opportunity to finish articulating his objection, the Trial Judge continued to interrupt him. Warren Thibault, now clearly frustrated and upset, understandably challenged the Trial Judge as to why the Respondent’s counsel was permitted to aggressively attack the credibility of Lynn Hogan, who was under cross-examination at the time, when the Appellants had been restricted in their questioning of the Respondent on credibility issues. Warren Thibault also asked the Trial Judge to be respectful and to stop making derogatory remarks to him. The Trial Judge denied any wrongdoing and invited Warren Thibault to file a complaint if he was dissatisfied. The Trial Judge also warned Warren Thibault that he was appearing with the judge’s permission and the judge could remove him at any time if he deemed that Warren Thibault’s representation of the Appellants was inadequate.

[69] The tone during this interchange was argumentative and confrontational on the part of both the Trial Judge and Warren Thibault. I have no doubt that it led to the Appellants believing that the Trial Judge had a negative animus toward Warren Thibault and themselves. It is striking that neither Warren Thibault nor the Appellants objected to any further questions of Lynn Hogan or Samantha Bayly by the Respondent’s counsel despite what I would describe as a very aggressive and unrestrained cross-examination of both witnesses. At no time did the Trial Judge intervene to instruct the Respondent’s counsel not to interrupt the witness when she was attempting to respond to a question, not to ask multiple questions at the same time, not to misstate the evidence given previously by the witness, and not to engage in arguments with the witness. The free rein given to the Respondent’s counsel – a very experienced defence counsel – was in stark contrast to the constraints imposed on Warren Thibault and Sangeeta Thibault, two lay people, when they were asking questions.

[70] Similarly, the Respondent’s counsel was given free rein to engage in an argumentative and, at times, insulting cross-examination of Didier Thibault – much of it based on outdated stereotypical thinking to the effect that there is only one way for married persons to handle their financial affairs, and that is by full disclosure with both husband and wife knowing the details about what sources of income each may have, how they have received that income, what they have done with that income, and what deposits and withdrawals they have made from joint accounts regardless of how those accounts are used and who monitors those accounts. The Respondent’s counsel interrupted Mr. Thibault repeatedly, not allowing him to fully answer questions. The Respondent’s counsel was allowed to challenge Mr. Thibault as to why he had not told his wife to pay back the funds the Respondent claimed were loans – despite Ms. Thibault pleading in the Defence that they were not loans. This implies further stereotypical thinking that a husband has the right and/or ability to control his wife’s actions. The Respondent’s counsel was allowed to challenge Mr. Thibault as to why, once he had become aware of the existence of the six cheques to Sangeeta Thibault and the two cheques to him, he did not personally repay the Respondent the entire $10,508. This was despite Mr. Thibault and the Respondent having testified that Mr. Thibault never asked the Respondent for any money, had not provided any “office help” for the Respondent, had never asked for a loan from him, and had no financial relationship with him. Again, this implies further stereotypical thinking that a husband is responsible for the alleged debts of his wife. The Respondent’s counsel knew or should have known through reference to the cheques in question that only the two made out to Didier Thibault had been deposited to the parties’ joint account; the balance of the cheques in the name of Sangeeta Thibault had been deposited into Ms. Thibault’s personal account. Despite this fact, the Respondent’s counsel repeatedly suggested to Mr. Thibault that he should have repaid the entire amount of the alleged loans – despite there being no juridical reason for him to do so. At no time did the Trial Judge intervene to limit these questionable tactics engaged in by the Respondent’s counsel.

[71] The questioning of Didier Thibault by the Respondent’s counsel harkens back to Blackstone’s Commentaries from 1765, where it is stated:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage …

[72] Long gone are the days where under the common law a husband and wife were considered one person – the husband – and he was responsible for his wife’s actions. In fact, in Ontario, this concept of unity of legal personality was abolished by s. 1(1) of the Family Law Reform Act, 1975, S.O. 1975, c. 41, which states:

For all purposes of the law of Ontario, a married man has a legal personality that is independent, separate and distinct from that of his wife and a married woman has a legal personality that is independent, separate and distinct from that of her husband.

[73] The Trial Judge had a responsibility to intervene when the Respondent’s counsel was asking irrelevant questions of Didier Thibault based on outdated legal principles no longer applicable in Ontario. Instead of doing so, the Trial Judge remained silent while the Respondent’s counsel harshly criticized Mr. Thibault for not doing something which he had no legal obligation to do; namely, repay his wife’s alleged debts.

[74] Throughout all cross-examinations conducted by Warren Thibault and by the Respondent’s counsel, it was unfortunate that the Trial Judge was not better able to control the flow of questions and answers so that individuals were not talking over one another. Reading the transcript was challenging because sentences were frequently divided into segments as everyone spoke at the same time.

[75] On the third day of the trial, the Respondent’s counsel made his submissions with virtually no interruptions on the part of the Trial Judge. On one occasion, the Trial Judge sought a clarification. Near the end of the submissions of the Respondent’s counsel, the Trial Judge made a comment apparently agreeing with a point advanced by counsel.

[76] Didier Thibault then made submissions regarding the claims against him. The Trial Judge interrupted him frequently to ask questions.

[77] Warren Thibault then made submissions as the Appellants’ representative. Right from the start, the Trial Judge interrupted him in a confrontational fashion. He challenged Mr. Thibault for referring to the odd amount of the cheques made out to Didier Thibault ($1,024 and $1,184), stating that the Appellants had not asked the Respondent any questions in this regard – which was not accurate. Warren Thibault went on to assert that the only reasonable interpretation of the evidence was that it had been the Respondent and not Sangeeta Thibault who had altered the time entries on the computer kept for payroll purposes. The Trial Judge challenged this submission in an exchange where the Trial Judge and Warren Thibault were talking over each other. The interchange deteriorated significantly when Mr. Thibault tried to make the point that the Trial Judge should question the Respondent’s credibility when he knowingly signed a cheque made payable to Didier Thibault that had the word “loan” on it when the only evidence before the court was that there had been no financial relationship of any nature between the Respondent and Didier Thibault. When Warren Thibault argued that the evidence supported the conclusion that this payment had really been intended to reimburse Sangeeta Thibault for services she had provided to the Respondent during her maternity leave, the Trial Judge immediately responded: “What am I to make about somebody who does not come into this court with clean hands who says … that: ‘I’m taking EI benefits and I’m also working at the same time’”?

[78] The next seven pages of the transcript show a rapid, confrontational exchange between the Trial Judge and Warren Thibault with Warren Thibault and Didier Thibault becoming increasingly frustrated and concerned about their inability to make their submissions in a fulsome and coherent fashion. The Trial Judge responded to these concerns by stating that he was perfectly entitled to ask questions so that he could understand their submissions. Without question, a trial judge has the authority and the responsibility to seek clarification of submissions being made by a party, a representative, or counsel. As well, there can be no doubt that a trial judge can question the validity of any submission not based on the evidence adduced at trial, and can insist that the person making the submission point to specific evidence that would support the position being advanced. In this regard, a trial judge is acting appropriately when warning those making submissions not to engage in speculation. Finally, a trial judge is entitled to question any submission that does not accord with common sense and reason.

[79] The Trial Judge in this case was seeking to do all of these things when Warren Thibault was making his submissions. The problem with some of the interventions undertaken by the Trial Judge was not their intent or their content; it was the manner in which the Trial Judge pursued them. There are pages of transcript during which the Trial Judge interrupted Warren Thibault repeatedly and adopted an unnecessarily confrontational attitude. Mr. Thibault rarely had the opportunity to complete a sentence or provide a full answer to the question being posed. It is clear from the audiotape that Warren Thibault became increasingly frustrated as a result. He, in turn, became argumentative, disrespectful, and confrontational with the Trial Judge.

[80] For the next while, Warren Thibault made submissions with fewer interruptions on the part of the Trial Judge and with any questions from the Trial Judge being posed in a calm manner. However, before long, when Mr. Thibault was asking the Trial Judge to consider carefully the credibility of the Respondent, the Trial Judge pushed back strongly against some of Mr. Thibault’s submissions. Again, the Trial Judge posed numerous questions without giving Mr. Thibault sufficient time to respond. Once again, the exchanges were confrontational and argumentative, with both the Trial Judge and Mr. Thibault not allowing the other to complete a sentence without interjecting.

Legal Principles regarding Apprehension of Bias

[81] Courts must be held to the highest standard of impartiality (R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484, at para. 92; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at paras. 59, 76). There is a strong presumption of impartiality that applies to judges, and the bar to establish that a reasonable apprehension of bias exists is a high one (R.D.S., at para. 33; Wewaykum, at para. 59; and Martin v. Sansome, 2014 ONCA 14, 314 O.A.C. 375, at para. 32). The onus of demonstrating a reasonable apprehension of bias lies with the person who is alleging its existence (R.D.S., at para. 114; Wewaykum, at para. 59).

[82] In R.D.S., at para. 106, Cory J., quoting from R. v. Bertram (1989), 8 W.C.B. (2d) 694 (H.C.), accepted the following definition of bias:

A leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.

[83] In Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-395, de Grandpré J. set out the test for finding a reasonable apprehension of bias:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information … [The] test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude …

The grounds for this apprehension must, however, be substantial, and I … refus[e] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.

[84] As has been confirmed in numerous cases, not only is a trial judge entitled to intervene in the trial process, but he or she has an obligation to intervene when appropriate to ensure that justice is done in substance and appearance (R. v. Murray 2017 ONCA 393, 138 O.R. (3d) 500, at para. 91). Valid reasons to intervene include:

…to focus the evidence on issues material to a determination of the case. To clarify evidence as it has been given and is being given. To avoid admission of evidence that is irrelevant. To curtail the needless introduction of repetitive evidence. To dispense with proof of the obvious or uncontroversial. To ensure the way that a witness answers or fails to respond to questions does not unduly hamper the progress of the trial. And to prevent undue protraction of trial proceedings.

(Murray, at para. 92, quoting Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, at paras. 233-234, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 91, 276 O.A.C. 398n. See also Martin, at paras. 33-34.)

[85] When undue interference or intervention is raised as a ground of appeal, the fundamental question for the appeal court is whether the interventions, considered cumulatively, led to or resulted in an unfair trial or the appearance of an unfair trial (Murray, at paras. 96-97). This question must be considered through the eyes of a reasonable person present throughout the trial.

[86] Judges are expected to conduct proceedings in a courteous and civil manner. They are expected to remain patient and to avoid expressions of annoyance. However, isolated expressions of impatience and annoyance by a trial judge as a result of frustration do not necessarily mean that the proceedings are not being conducted in a fair manner (Martin, at para. 37, quoting Chippewas, at para. 243). On the other hand, incidents which when considered in isolation may be of no consequence can combine to create an overall appearance of bias when they are considered cumulatively in the overall context of the proceedings (R. v. Stewart (1991), 1991 11753 (ON CA), 62 C.C.C. (3d) 289 (Ont. C.A.), at p. 320).

Application of Legal Principles in this Case

[87] After considering the entirety of the proceedings from opening addresses to the final costs award, as reflected in the transcripts, the audio recording, the judge’s rulings, and the Reasons for Judgment and costs award, I find, with regret, that an objective, reasonable observer viewing the trial realistically and practically would, with reason, conclude that the Trial Judge was not impartial as between the Appellants and the Respondent.

[88] The context in which these proceedings were occurring was that a dentist was suing his former employee and her husband for $25,000. Much of this claim related to an alleged overpayment of wages that the OLRB, after a full hearing, previously determined was far less than what the dentist was claiming. Despite that earlier finding, the dentist sought to relitigate all the issues before the OLRB together with additional issues. The dentist was represented by an experienced counsel both before the OLRB and at the Small Claims Court trial. The employee and her husband were unrepresented during both proceedings for the simple reason, as they explained at the commencement of the trial, that they could not afford a lawyer. The husband’s father, who had no legal credentials, was given permission to assist his son and daughter-in-law at both hearings.

[89] The Trial Judge had to walk a fine line between providing procedural directions but not legal advice to the unrepresented litigants. During much of the trial, the Trial Judge succeeded in this regard. The Trial Judge also had to ensure that he understood and gave consideration to the factual and legal issues raised by the unrepresented litigants to the same extent that he was willing to entertain such issues when raised by the dentist’s counsel. The Trial Judge was less successful in this regard. Finally, the Trial Judge had to approach his assessment of the parties’ credibility in an even-handed manner, without any preconceived notions or assumptions. A reasonable, well-informed person observing the proceedings and reviewing the judgment would be left with the impression that the Trial Judge was not impartial in this regard.

[90] Although individually some of the following would be inconsequential, in my assessment, their cumulative effect resulted in a reasonable apprehension of bias against the Appellants:

• At the commencement of the trial, the Thibaults raised the question of res judicata due to earlier proceedings before the OLRB. The Trial Judge refused to consider this issue in any meaningful fashion and ordered the trial to proceed. At the end of the first day of testimony, the Trial Judge, following guidance from Dr. Halpin’s counsel, but without hearing submissions from the Thibaults, again reiterated that the OLRB decision was of no relevance to the issues before him. Following the release of the OLRB decision, and before the release of the Trial Judge’s decision, the Thibaults again raised res judicata. The Trial Judge gave no serious consideration to this principle, despite the likelihood of conflicting findings and, instead, went on to make many findings in Dr. Halpin’s favour which conflicted with findings made at the OLRB.

• On several occasions, the Trial Judge interacted with Warren Thibault, Sangeeta Thibault, and Didier Thibault in a brusque and impatient fashion, at times verging on rudeness. (That being said, on many occasions – particularly on the first day – the Trial Judge maintained a calm manner and took the time to explain matters to the Thibaults.)

• On two occasions when Warren Thibault tried to object to questioning on the part of Dr. Halpin’s counsel, the Trial Judge told him that he had been watching too much television and overruled the objections without giving them real consideration.[^1]

• On occasion, the Trial Judge made quick rulings against the Thibaults without giving Warren Thibault, Sangeeta Thibault, or Didier Thibault the opportunity to fully present their argument. If they pushed the matter, he usually stopped and gave them further opportunity to speak – but it is clear from the record that his approach undermined their ability to plead their case and sapped their confidence in the trial process.

• Throughout the trial, the Trial Judge’s questions to and interactions with the Thibaults left the impression that he was placing the burden of proof on the Thibaults to disprove all of the allegations made by Dr. Halpin whereas the legal burden was on Dr. Halpin to prove those allegations. The Trial Judge’s Reasons for Judgment left the same impression.

• The Trial Judge allowed Dr. Halpin’s counsel to cross-examine Sangeeta Thibault, Didier Thibault, and their witnesses without restraint. On a number of occasions, counsel asked multiple questions at the same time, did not give the witness sufficient time to respond before another question was posed, adopted a sarcastic and disrespectful tone with witnesses, and displayed a level of aggressivity that was uncalled for. In contrast, the Trial Judge restricted the evidence that the Thibaults could introduce on issues that potentially related to Dr. Halpin’s credibility and the motivation for his lawsuit against the Thibaults. One such important issue was Dr. Halpin’s relationship with other employees – the number who had left or been fired, those who had not received their last paycheque, those who had sought assistance under the Employment Standards Act, 2000, and those whom Dr. Halpin had accused of fraud. This evidence could have brought into question the bona fides of Dr. Halpin’s allegations of wrongdoing on the part of Ms. Thibault. It was also relevant to the credibility of Dr. Halpin’s assertion that he did not pay much attention to the documents he was given before he wrote a payroll cheque for an employee. If he had been defrauded by other employees, it was only reasonable to expect him to pay particular attention to payroll documents being presented to him by his current employees. As well, the Thibaults were not given scope to explore how many complaints had been made to the Royal College of Dentists of Canada in the past to put into context how important it would have been to Dr. Halpin for Ms. Thibault to provide a complimentary letter about him to the College, and the likelihood that he would have been very upset if she was critical of him when writing to the College. The theory being advanced by the Thibaults was that Dr. Halpin’s lawsuit against them was motivated not by facts but by his desire to punish Ms. Thibault for having withdrawn her letter of support. Finally, the Trial Judge advised that he would not take into account any evidence regarding the quality of work performed by Ms. Thibault and her importance to the smooth operation of the office despite the relevance of this evidence to Ms. Thibault’s claims that she had been given a raise by Dr. Halpin upon her return to work after her maternity leave and that monies she received from Dr. Halpin during her maternity leave were for services she provided.

• At the end of Ms. Thibault’s questioning of Lynn Hogan, she asked Ms. Hogan if it was fair to say that Ms. Thibault was working at the clinic while she was on leave. The Trial Judge rightly pointed out that that was a very leading question. Ms. Thibault asked if she could rephrase the question. The Trial Judge responded that it was too late. A fair reading of the transcript was that Ms. Thibault concluded that she was not allowed to ask Ms. Hogan further questions on this topic – even though it was an important topic for her to cover. The Trial Judge did not explain to Ms. Thibault that she could pursue this line of questioning, but with open-ended rather than leading questions. Ultimately, the Trial Judge decided that Ms. Thibault had done no work during her maternity leave for which she was entitled to be compensated by Dr. Halpin.

• During the unnecessarily aggressive cross-examination of Lynn Hogan by Dr. Halpin’s counsel, Warren Thibault objected and specifically raised the issue that Dr. Halpin’s counsel was being given free rein to cast aspersions on Ms. Hogan’s credibility whereas the Thibaults had been restricted in their cross-examination of Dr. Halpin. The Trial Judge summarily dismissed the objection by telling Warren Thibault that he had been watching too much American TV. The Trial Judge went on to say that if Warren Thibault did not like how the Trial Judge was managing the trial, he could file a complaint. He warned Warren Thibault that he was being allowed to make representations on behalf of his son and daughter-in-law with the permission of the court and that permission could be withdrawn at any time. After this interchange, the Thibaults were noticeably quiet despite what can only be referred to as a full-blown attack by Dr. Halpin’s counsel on Ms. Hogan’s credibility – an attack that resulted in the Trial Judge dismissing Ms. Hogan’s evidence.

• The Trial Judge repeatedly interrupted Warren Thibault as he attempted to make submissions at the conclusion of the trial. The Trial Judge used a confrontational tone and engaged in argument with Mr. Thibault. Dr. Halpin’s counsel was allowed to make his submissions virtually uninterrupted.

• In his Reasons for Judgment, the Trial Judge gave a detailed critique of Sangeeta Thibault’s credibility and was highly critical of her for receiving money from Dr. Halpin when she was on maternity leave and not reporting those earnings to the Employment Insurance authorities. In doing so, the assumption that the Trial Judge was making was that Ms. Thibault received these funds as earnings (not as a loan). Nevertheless, the Trial Judge went on to find that all of the cheques written by Dr. Halpin to Sangeeta Thibault or Didier Thibault while Ms. Thibault was on maternity leave represented loans and not earnings. Thus, for the purpose of assessing Ms. Thibault’s credibility, the Trial Judge considered the cheques to be earnings; for the purpose of requiring her and her husband to repay the sums to Dr. Halpin, the Trial Judge considered the cheques to be loans.

• The Trial Judge found Didier Thibault lacking in credibility based on outdated, stereotypical reasoning that he was married to Sangeeta Thibault and therefore must have known about her financial affairs and what she did with the money she earned or received from Dr. Halpin. The Trial Judge also stated that Didier Thibault did not know where his wife was working at the current time, and this impacted on his assessment of Mr. Thibault’s credibility. In fact, Mr. Thibault had testified as to where his wife was working; he simply did not remember the exact name of the organization.

• The Trial Judge found Lynn Hogan’s evidence lacking in credibility due to her self-interest in protecting what she claimed was a pay raise. He did not assess Dr. Halpin’s evidence as being self-serving despite his obvious interest in avoiding having to honour any such pay raise. Furthermore, when Ms. Hogan was testifying, the Trial Judge said that he was not interested in whether Dr. Halpin had been given permission under the Employment Standards Act, 2000 to withhold pay from Lynn Hogan – evidence that could have impacted on the Trial Judge’s eventual calculation of monies he found owing by the Thibaults.

• The Trial Judge found Samantha Bayly lacking in credibility because she had been fired and had an axe to grind. The Trial Judge never mentioned any axes to grind that Dr. Halpin may have had and, on the evidence adduced at trial, it was apparent that there may have been some, such as the fact that Sangeeta Thibault had written an unfavourable letter about him to the Royal College of Dentists of Canada.

• After spending three and a half pages criticizing the credibility of the Thibaults and two of their three witnesses, the Trial Judge spent only a couple of sentences to state, without any detailed assessment, that Dr. Halpin was credible. He appeared to arrive at this conclusion, in part, by making assumptions about how a dental practice is meant to function – despite the absence of evidence in this regard. The evidence raised questions about Dr. Halpin’s credibility, for example, why he acknowledged that Sangeeta Thibault continued to do the payroll at his office during her maternity leave but then claimed that she was not entitled to be paid for that work. The Trial Judge ignored this, and other, discrepancies.

• The Trial Judge found Didier Thibault liable to repay money to Dr. Halpin without conducting any legal analysis as to the basis upon which such liability would attach to him. He merely accepted the assertion of Dr. Halpin’s counsel that this must be the case.

• The Trial Judge made an award of damages totalling $27,208, despite Dr. Halpin only seeking $25,000 and the Trial Judge having no jurisdiction to make an order in excess of $25,000.

• In his Costs decision, the Trial Judge simply adopted the costs submissions of Dr. Halpin’s counsel without comment and ordered Sangeeta Thibault to pay costs of $8,770.48 and Didier Thibault to pay costs of $1,043.99. Both orders covered the disbursements of $295.48 – for a double payment of disbursements to Dr. Halpin. The total fees ordered, $8,162.40 comes to 32.6% of the maximum damages award of $25,000 that can be made in the Small Claims Court. Under the Courts of Justice Act, R.S.O. c. C. 43, s. 29:

An award of costs in the Small Claims Court, other than disbursements, shall not exceed 15 per cent of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding.

By adopting Dr. Halpin’s submissions in their entirety with no explanation as to what aspect of those submissions he was relying on to justify a costs award exceeding 15% of the amount recovered, and by ordering both Appellants to pay the disbursements, the Trial Judge gave further weight to the apprehension created by the trial proceedings and the judgment that he was biased against the Thibaults.

[91] Although some of the legal and technical errors made by the Trial Judge, standing alone, would not justify a finding of a reasonable apprehension of bias, when they are part of the context in which the Trial Judge’s behaviour is assessed, errors of this nature can augment other concerns about conscious or unconscious bias arising from the proceedings.

Disposition re Reasonable Apprehension of Bias

[92] The substantive and costs decisions of the Trial Judge are set aside.

Disposition

Powers on Appeal

[93] Under s. 134(1) of the Courts of Justice Act, a court to which an appeal is taken may make any order or decision that ought to or could have been made by the court appealed from, order a new trial, or make any other order or decision that is considered just. Under s. 134(4)(a), a court to which an appeal is taken may, in a proper case, draw inferences of fact from the evidence, except that no inference shall be drawn that is inconsistent with a finding that has not been set aside.

[94] The Small Claims Court is meant to offer an expeditious and cost-effective way of resolving disputes involving relatively small amounts of money. This dispute between Dr. Halpin and the Thibaults has already taken up two days of hearing time before the OLRB and three days of trial time in the Small Claims Court. I cannot, in all conscience, return any outstanding issues back to another judge of the Small Claims Court for a further hearing and decision.

[95] For the purpose of this appeal, I have listened to the audiotapes of the proceedings and have read the transcripts. I have access to the Exhibit Books used at Trial. There is also the decision of the OLRB which triggers issue estoppel in these proceedings. There is no reason why I cannot render a decision respecting those issues requiring further consideration.

Issues Already Determined

Issue Estoppel

[96] As explained above, by virtue of issue estoppel, I find that the amount owing by Sangeeta Thibault to Dr. Halpin respecting any overpayment of her wages is $140.97.

Claim against Didier Thibault

[97] The onus was on Dr. Halpin to provide a legal and factual basis for his claim against Didier Thibault for payment of $10,508 (or the lesser amount of $2,208, as found by the Trial Judge based on the two cheques made out to Didier Thibault). For the reasons set out above, Dr. Halpin has failed to meet that onus. Dr. Halpin’s claim against Didier Thibault is dismissed.

Issues to be Determined

Claim regarding Loans

[98] The onus was on Dr. Halpin to prove that cheques he provided to Sangeeta Thibault and made payable to her or to Didier Thibault were loans to her or advances for future salary to which she never ended up being entitled. The OLRB determined that a portion of the payments made to Sangeeta Thibault while she was on maternity leave were salary payments for services provided by Ms. Thibault to Dr. Halpin during her leave. The OLRB also determined that Ms. Thibault was entitled to be paid for those services at the rate of $32 per hour. The only issue to be decided was the number of hours Ms. Thibault worked over this period for which she was entitled to receive compensation.

[99] Dr. Halpin’s evidence was that Ms. Thibault came to the office for one to two hours approximately every two weeks, at which time she completed the office payroll. His evidence was that it would take Ms. Thibault only 15 minutes to do the payroll which she did as a favour to him and not for remuneration. He claimed that Ms. Thibault spent the rest of the time chatting and showing off her newborn baby, though he subsequently acknowledged that she did not always have her baby with her. I do not find this evidence credible. It challenges common sense. It seems unlikely that Ms. Thibault would get herself and, often, her young baby from her home to Dr. Halpin’s office in downtown Ottawa every two weeks during a Canadian winter and spring to do 15 minutes of work as a favour to Dr. Halpin. It also seems unlikely that Dr. Halpin or any of his other employees would have time in their busy days to socialize with Ms. Thibault and admire her baby for 45 minutes, or an hour and 45 minutes, every two weeks as claimed by Dr. Halpin. Finally, Dr. Halpin’s evidence was contradicted by all of the other witnesses who spoke to the issue, and who did so in far greater detail.

[100] Sangeeta Thibault testified that she continued to do significant work for Dr. Halpin during her maternity leave. That included payroll, monthly orthodontic installment payments, month-end reports, accounts payable, accounts receivable, insurance claims, hiring and training staff, and checking codes for Dr. Halpin. This was in addition to answering phones, making appointments, greeting patients and receiving payment from patients, if there was no other staff member at the front desk to perform these mundane tasks. Ms. Thibault explained that Dr. Halpin was particularly desperate for her help in December 2015 and January 2016 because he had not hired a replacement or another receptionist to fill the void she had left. She explained that Dr. Halpin had suggested that he issue her cheques made payable to her husband to compensate her for all the help she was providing. The first two cheques in the series of eight in dispute were made out to Didier Thibault: one on December 18, 2015 for $1,024 (the exact amount obtained if Ms. Thibault worked 32 hours at $32 an hour), and one on January 18, 2016 (the exact amount obtained if Ms. Thibault worked 37 hours at $32 per hour). Ms. Thibault explained that she became increasingly uncomfortable having cheques made out in her husband’s name for work she had done, and she asked Dr. Halpin to make subsequent cheques in her name. He did so. Her evidence was that he said they could sort out the details of the payments once she got back to work after her maternity leave. Subsequent cheques made out to Ms. Thibault were not for amounts easily divisible by 32.

[101] Lynn Hogan confirmed that, when Ms. Thibault was on maternity leave, she came into the office every two weeks to do payroll. In addition, she was in the office quite a bit to order supplies and deal with issues relating to billing, collections, and insurance that the other office staff at the time were not trained to handle.

[102] Samantha Bayly testified that she had been hired by Ms. Thibault in January 2016. At the time of her interview, Ms. Thibault was on maternity leave and had her baby with her. She confirmed that Dr. Halpin contacted Ms. Thibault almost daily when she was on maternity leave to ask questions about the practice or patients. By way of example, she gave very precise and uncontradicted evidence about a particular phone call to Ms. Thibault when Ms. Thibault was in Vancouver to attend her grandmother’s funeral. Ms. Bayly also provided uncontradicted evidence as to how Ms. Thibault used to access the office computer system remotely, how Ms. Bayly observed the icon on her screen indicating that Ms. Thibault was on-line, and how Ms. Bayly had conversations with Ms. Thibault in which Ms. Thibault would move the cursor on the screen to show Ms. Bayly how to do certain functions. On average, Ms. Bayly estimated that Ms. Thibault worked a couple of hours a day when she was on maternity leave. The evidence was that, while Ms. Bayly was employed by Dr. Halpin, she missed a significant amount of work – creating pressure on Ms. Thibault to help Dr. Halpin as much as possible.

[103] Georgina Chapman testified that she worked as a receptionist at Dr. Halpin’s office from the first week of May 2016 to April 2017. When she started at the office, Sangeeta Thibault was there (without her baby) to train her. Ms. Thibault then came into the office a minimum of twice or three times a month for either a morning or an afternoon and every so often for most of the day in order to help Ms. Chapman and continue performing the functions that only she could do, such as invoicing, managing major accounts, payroll, ordering product, handling orthodontic payments, establishing treatment plans for orthodontic patients, and working on accounts payable and accounts receivable. Ms. Chapman described how other staff members left items at the front desk for Ms. Thibault to deal with when she came into the office. Ms. Chapman described how initially, she contacted Ms. Thibault by email or text message several times a day and, a bit later, several times a week to receive further guidance regarding receptionist duties.

[104] I find on a balance of probabilities that, aside from the two to three weeks in January and February 2016 when Ms. Thibault was in Vancouver, she went to the office every two weeks, and sometimes more frequently, to do Dr. Halpin’s payroll and deal with all of the other office management functions about which Ms. Thibault and the other former staff members testified. Ms. Thibault spent considerably more time doing so than the 15 minutes suggested by Dr. Halpin. As well, Ms. Thibault regularly took telephone calls from Dr. Halpin and other staff members who needed her advice regarding patients and office management issues. Finally, as needed, she would access the office computer system remotely to perform some of her office management functions.

[105] I also find on a balance of probabilities that the understanding between herself and Dr. Halpin was that she would be compensated in some fashion for her services but not in the form of bi-weekly paycheques while she was in receipt of maternity benefits. It is for that reason that she did not use the time clock when she came into the office. I find that some of the cheques provided to Ms. Thibault while she was on maternity leave were to compensate her for these services. Although Dr. Halpin was not in a position to deduct these as salary payments when calculating his net business income, he also did not make contributions to Canada Pension Plan and Employment Insurance on Ms. Thibault’s behalf. Dr. Halpin benefitted very significantly from Ms. Thibault’s on-going help. The three other staff members all testified that the environment at the office was very stressful and chaotic when Ms. Thibault was not there. Ms. Hogan’s anxiety issues increased during her tenure at Dr. Halpin’s office, requiring her to be on medication and, eventually, to leave his employ. Ms. Bayly lasted a very short period of time due to the stressful work environment. Ms. Chapman advised that she has never worked in such a stressful office and felt that she had to leave in April 2017. Clearly, the more Dr. Halpin could rely on Sangeeta Thibault maintaining a presence at the office – even though on maternity leave – the better it was for the smooth operation of his practice and his ability to retain staff.

[106] I find that the first two cheques made payable to Didier Thibault in the amounts of $1,024 on December 18, 2015 and $1,184 on January 18, 2016 were given to Ms. Thibault in payment of work done for Dr. Halpin. This totals $2,208, on which Ms. Thibault was entitled to receive vacation pay at 4% or $88.32.

[107] My best estimate of the portion of the remaining $8,300 that represented compensation for services provided is calculated as follows:

• From January 18 to July 4, 2016, there were 24 weeks.

• Ms. Thibault worked at the office on average ½ day (4 hours) every second week to do payroll (this allows for her missing one date when she was in Vancouver but sometimes going to the office on other days – such as when she trained Ms. Chapman – and sometimes spending the entire day at the office).

• In addition, Ms. Thibault worked remotely from home on average nine hours every two weeks (an hour a day except the day she was at the office) to take calls for help from other staff members or Dr. Halpin and to work on the computer on those days when she was not at the office.

• Ms. Thibault was entitled to be paid at a rate of $32 per hour, as determined by the OLRB.

• For her hours at the office, Ms. Thibault was entitled to receive $1,536. For her hours working remotely, Ms. Thibault was entitled to receive $3,456. This yields a total of $4,992.

• Ms. Thibault was entitled to receive vacation pay at 4% on her earnings, which would have totalled $199.68.

[108] Thus, I find that, of the $10,508 which Dr. Halpin claimed was a loan from himself to Ms. Thibault, $7,488 represented compensation which he owed her for her having assisted him at his office and from her home while she was on maternity leave. This leaves a balance of $3,020 left unaccounted for.

[109] At a few points in his evidence, Dr. Halpin spoke of giving Ms. Thibault an advance while she was on maternity leave and of his expecting her to repay those sums by way of a deduction from her pay of $100 to $200 each paycheque until she had reimbursed him. There was evidence of Dr. Halpin having given other employees an advance on their wages. Ms. Thibault was a trusted employee of Dr. Halpin. He anticipated that she would be working for him into the future. He likely saw no problem advancing her funds while her income was reduced on maternity leave on the understanding that she would gradually repay those funds once she was back at full salary.

[110] I find that Sangeeta Thibault, alone, owes Dr. Halpin $3,020 to repay advances on future earnings that he provided to her during her maternity leave but that were never repaid by her through deductions from her pay once she returned to the office in July, 2016. Ms. Thibault is also obliged to pay Dr. Halpin pre-judgment interest on this sum at the applicable rate from October 6, 2016. Post-judgment interest is also payable.

Overpayment of Lynn Hogan’s Wages

[111] Dr. Halpin alleged that Sangeeta Thibault increased Lynn Hogan’s pay rate from $17 to $18 per hour without his authorization. He acknowledged that once Ms. Thibault was on maternity leave, and particularly when Samantha Bayly was missing a lot of work, Ms. Hogan’s workload increased. He acknowledged that, in all likelihood, she complained to Ms. Thibault that she was not being paid enough for the work she was doing. He surmised that Ms. Thibault increased Ms. Hogan’s wage rate because they were friends. There is no allegation that Ms. Thibault benefitted in any respect from the increased pay rate.

[112] Ms. Hogan’s evidence was that, one day, she received a telephone call from Sangeeta Thibault in regard to a patient matter and, during that conversation, Ms. Thibault advised her that her wage rate was being increased from $17 to $18 per hour. Ms. Hogan heard Dr. Halpin’s voice in the background and she understood that he was authorizing the pay increase. This was confirmed in her mind when she subsequently went into his office every two weeks with the payroll sheets prepared by Ms. Thibault on which her rate of pay was clearly indicated in writing. Ms. Hogan observed Dr. Halpin reviewing them before he personally wrote her a cheque, often commenting on how well paid she was. Documentary evidence was tendered showing how visible Ms. Hogan’s rate of pay was on the forms she submitted to Dr. Halpin. Ms. Hogan’s evidence regarding how her paycheques got signed was consistent with the evidence provided by the other staff members.

[113] Sangeeta Thibault also testified that she had Dr. Halpin’s approval to increase Ms. Hogan’s hourly rate.

[114] I prefer the evidence of Sangeeta Thibault and Lynn Hogan to that of Dr. Halpin regarding this issue. It would make little sense for Ms. Thibault to try to sneak an unauthorized increase in Ms. Hogan’s hourly rate by Dr. Halpin when, each pay day, Ms. Hogan sat down with Dr. Halpin so that he could review the payroll documents on which her rate of pay was written in bold. It is not contested that he looked at those documents before issuing her a cheque.

[115] I also note that no evidence was tendered by Dr. Halpin as to whether he recovered any amount from Lynn Hogan directly and as to the outcome of her claim under the Employment Standards Act, 2000 for her last paycheque that had been withheld by Dr. Halpin. Furthermore, there was no evidence as to Ms. Thibault’s understanding as to whether the increase in wage rate was authorized or not, aside from Ms. Thibault’s evidence that she understood that it was – not only because she had spoken to Dr. Halpin, but also because she wrote the new rate in bold on the payroll documents submitted by Lynn Hogan to Dr. Halpin.

[116] Dr. Halpin has not proven that Ms. Thibault did anything wrong in her preparation of Lynn Hogan’s payroll documents for which she is legally liable to reimburse him. Dr. Halpin’s claims against Ms. Thibault relating to payments to Lynn Hogan or alleged overpayments to the Canada Pension Plan and Employment Insurance on her behalf are therefore dismissed.

Overpayment of Canada Pension Plan and Employment Insurance Payments

[117] Inadequate evidence was tendered at trial to justify any order relating to alleged overpayments of Canada Pension Plan and Employment Insurance payments by Dr. Halpin made on Sangeeta Thibault’s behalf. First, no calculations were done regarding payments to be made on Ms. Thibault’s behalf based on the findings of the OLRB regarding an overpayment of her wages. Secondly, no evidence was tendered as to what, if any, steps Dr. Halpin has taken to readjust payments to Canada Pension Plan and Employment Insurance based on the OLRB’s findings of Ms. Thibault’s wages for the periods in question to recoup any overpayment of contributions.

[118] Dr. Halpin’s claim respecting an alleged overpayment of Canada Pension Plan and Employment Insurance contributions made on Ms. Thibault’s behalf is therefore dismissed.

Writing Off Accounts for Alleged Friends

[119] Ms. Thibault provided a detailed explanation of why she had written off two accounts for an RCMP officer and his wife in the small amounts of $152.40 and $67.60 back in January and October 2015. Her evidence was that she had Dr. Halpin’s permission to do so. The onus is on Dr. Halpin to prove that she was not authorized to write off these accounts and his bald assertion that she must have done so because these individuals were Ms. Thibault’s friends – asserted only in January 2018 – does not persuade me that his claim is warranted.

Writing off Accounts for Ms. Thibault’s Mother

[120] Similarly, Dr. Halpin claims that Ms. Thibault did not have the authority to write off two accounts for her mother dated January 26, 2014 and December 3, 2015 in the total amount of $452. Ms. Thibault’s evidence was that she did have Dr. Halpin’s authority to do so. There was evidence that Dr. Halpin wrote off accounts relating to services provided to his family and some friends, such as his lawyer. There was also evidence that Dr. Halpin was fond of and reliant upon Ms. Thibault and considered her somewhat like family. Again, the onus is on Dr. Halpin to prove his claim against Ms. Thibault. Where the evidence is contradictory and the court has difficulty deciding which version of events to believe, it is the plaintiff who fails because the plaintiff bears the onus of proof.

Costs

[121] The Appellants shall have 15 days from the release of this decision to serve and file submissions regarding costs in the Divisional Court and in the Small Claims Court. The Respondent shall have 10 days following service of the Appellants’ costs submissions in which to serve and file responding costs submissions. The Appellants shall then have a further 10 days in which to serve and file submissions responding to any new matters raised in the Respondent’s costs submissions. Each set of submissions shall be no more than three pages in length, exclusive of attachments.

Aitken J.

Released: December 9, 2019

[^1]: The Trial Judge acknowledged on the second day that he had also said this on the first day, even though it is not reflected in the transcript and I did not detect it on the audiotape.