CITATION: Covenoho v. First Data, 2021 ONSC 6542
DIVISIONAL COURT FILE NO.: 729/19
DATE: 20211006
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, R.D. Gordon and Kristjanson JJ.
BETWEEN:
JOSS COVENOHO
Self Represented
Appellant
– and –
FIRST DATA
Tudor Carsten and Ahmed Kamel, counsel for the respondent
Respondent
HEARD at Toronto by videoconference: September 29, 2021
ENDORSEMENT
[1] This is an appeal from the order of Morgan J. on a summary judgment motion brought by the appellant in her wrongful dismissal case: Covenoho v. First Data, 2019 ONSC 2346. Having found that the appellant was terminated without cause after six months’ employment, the motion judge determined the reasonable notice period was five weeks and awarded five weeks pay in lieu of notice. The motion judge dismissed the remainder of the appellant’s claims regarding alleged improper conduct by the respondent employer.
[2] The standard of review on an appeal from a judge’s order on a question of law is correctness. Findings of fact and of mixed fact and law cannot be reversed unless there is palpable and overriding error.
[3] The appellant raises several grounds of appeal. I find no merit in any of them. There is no basis for setting aside the order. I focus on three main issues raised by the appellant.
Terms of Employment and Notice
[4] The appellant submits that the motion judge erred in finding that the appellant should be treated as an employee without a written employment agreement. The appellant never signed the employment agreement provided by the employer. She argued that she provided an amended employment agreement to management which bound the corporation. The motion judge found that there was no evidence that the amended agreement was agreed to, acted on, or signed. There was ample evidence to support this finding, and no palpable and overriding error of fact or error of law.
[5] The appellant argues that the motion judge erred in awarding five weeks pay in lieu of notice. The appellant argues she is entitled to a total of 16 months’ pay in lieu of notice; the gist of her argument is that common law and precedent as applied by the motion judge do not encompass the reality of job searches in the 21st century generally, nor for her as a racialized woman in particular. I do not agree that the motion judge’s approach constituted an error of law.
[6] In determining the five-weeks reasonable notice period for the appellant, the motion judge applied the proper legal standard. The motion judge identified and considered the factors identified in Bardal v. The Globe and Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.) at p. 145. The motion judge found that the plaintiff was 48 years old, a six-month employee, in a relatively unspecialized position which required no advanced education, although it did require bilingualism. The motion judge found the plaintiff might need a modest amount of re-training in seeking out alternative employment, although her bilingualism is an asset. I agree with the motion judge’s finding at para. 12 that five weeks notice was “appropriate and, at the top end, even generous given the range found in the case law and the duration and nature of the Plaintiff’s employment.” The motion judge made no palpable and overriding error of fact or mixed fact and law in applying the Bardal factors in this case. The decision as to where a litigant is to be placed in the range after application of the Bardal factors is a discretionary decision, entitled to deference.
[7] The motion judge rejected the appellant’s submission that the notice period should be extended because of the respondent’s improper conduct towards her, identifying and applying the legal standard set out by the Supreme Court of Canada in Keays v. Honda Canada Inc., 2008 SCC 39, [2008] 2 S.C.R. 362. There was no error of law in this approach.
Dismissal of Other Claims
[8] The second issue is whether the motion judge erred in dismissing the balance of claims in the summary judgment motion. The motion judge recognized that the appellant had put forward a number of other claims, including fraudulent misrepresentation, duress, retaliation, humiliation, abuse of power, disregard for statute, bad faith, reprehensible and high-handed tactics, obstruction of justice, corruption, conspiracy, harassment, retaliation against litigation, libel and slander. The motion judge concluded at para. 4 that:
There is no cogent evidence to support any of the Plaintiff’s more inflammatory or far-reaching allegations. The assertions of bad faith, harassment, retaliation, high-handed tactics, etc. all speak to the difficult employment relationship described in both sides’ materials but do not amount to separate causes of action. The assertions of retaliation abuse of power, conspiracy, obstruction, libel and slander, etc. speak to the litigation itself and her view of the Defendant’s approach to the legal action. None of this establishes any independent cause of action.
[9] I agree. The appellant has demonstrated no palpable and overriding error in the motion judge’s assessment of the evidence and his determination of the factual issues is entitled to deference. There was no error of law with respect to the motion judge’s decision to dismiss the balance of the claims.
[10] The appellant argues that the motion judge ignored entirely her claim of “breach of role,” which is a claim that additional training she was required to undertake constituted a constructive dismissal. To the extent that this was part of the alleged improper conduct, there was no palpable and overriding error in the judge’s finding that there was no cogent evidence supporting this allegation.
[11] There was no palpable and overriding error of fact or error in law in the judge’s finding that there were no grounds for awarding any exemplary, moral, punitive, or any other damages in respect of the allegations of improper conduct by the respondent.
[12] I find that it was fair and just for the motion judge to determine the motion in a summary manner. There was no error in the approach, reasoning, or conclusions of the motion judge.
Reasonable Apprehension of Bias
[13] The appellant alleges that the motion judge deliberately ignored her evidence, had an “unhealthy intention” towards her, and that “[j]udges have a strong bias towards employers whom they perceive as elite and wealthy.” This falls far short of a reasonable apprehension of bias, consists of speculation without foundation, and we find no merit in this argument.
Fresh Evidence Motion
[14] The appellant brought a motion to admit fresh evidence, which consisted of 2021 reports from the Ministry of Labour concerning the employer’s response to a workplace incident involving Ms. Covenoho on January 3, 2018, and a complaint of January 10, 2018. Ms. Covenoho states that the reports establish new facts about the employer’s actions in 2018, in particular the credibility of the employer’s claims about the investigation of the incidents in 2018 and perjury by the employer’s affiants on the motion.
[15] I find that the test to admit fresh evidence has not been met. The three-pronged test for the admission of fresh evidence on appeal is: (i) the tendered evidence is credible; (ii) it could not have been obtained, by the exercise of reasonable diligence, prior to trial; and (iii) the evidence, if admitted, will likely be conclusive of an issue in the appeal: Sengmueller v Sengmueller (Ont. C.A.).
[16] On the second branch, the evidence could have been obtained before the motion. There was extensive evidence about these incidents in the motion record; the incidents and investigating steps were a live issue in the summary judgment. The appellant chose not to examine the employer’s witness on discovery, nor to cross-examine the employer’s witnesses on their affidavits. On the third branch, it would not be conclusive of an issue on the appeal nor likely to affect the motion’s result; the material is irrelevant, putting into evidence (as hearsay) the views of the Ministry of Labour.
Disposition
[17] For these reasons the appeal is dismissed with costs to the respondent of $5,000.00, inclusive, payable within 30 days.
___________________________ Kristjanson J.
I agree
Sachs J.
I agree
R.D. Gordon J.
Date of Release: October 6, 2021