CITATION: Fernandes v. Goveas, 2016 ONSC 1992

COURT FILE NO.: 12-CV55593

DATE: 2016/04/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mable Fernandes

Plaintiff

– and –

Arthur Goveas, Dora Goveas and 1252336 Ontario Ltd, cob as Grace Monuments

Defendants

Tanya C. Davies, for the Plaintiff

Prakash Pooran, for the Defendents

HEARD: March 14-18, 2016 (Ottawa)

REASONS FOR JUDGMENT

Parfett J.

[1] The Plaintiff, Mable Fernandes is seeking compensation for unpaid wages and damages for wrongful dismissal, including punitive damages for the manner of her dismissal.

Background

[2] This case is a lesson in why family should not always be treated ‘like family’. The Plaintiff in this case was misled, overworked and underpaid by her family.

[3] The Defendants, Arthur and Dora Goveas immigrated to Canada from India. They settled in Stittsville, Ontario and eventually started their own business importing cemetery monuments.

[4] In 2001, they arranged for Dora Goveas’ sister – the Plaintiff – to come to Canada as a live-in caregiver and housekeeper. The Plaintiff, Mable Fernandes worked for the Defendants pursuant to the Federal Government’s caregiver program, which allowed immigrants to work as caregivers until such time as they could apply for permanent resident status. The Plaintiff obtained her permanent resident status in 2004, but continued to live with and work for the Defendants until September 2010.

[5] The Defendants concede they underpaid the Plaintiff over the course of the nine years she worked for them, but the quantum is disputed.

Issues

[6] There are a number of factual issues to be decided in this case. The determination of these issues will in turn define the precise quantum of compensation owed to Ms. Fernandes.

[7] These issues are as follows:

1. Are the issues of overtime and underpayment of wages statute barred?

2. What was the rate of pay promised to the Plaintiff?

3. Are monies owed to the Plaintiff for unauthorized withdrawals from her bank account?

4. Did the Plaintiff work overtime?

5. Was the Plaintiff dismissed or did she leave voluntarily?

6. If she was dismissed, was reasonable notice or compensation in lieu thereof provided; and

7. Was the manner of her dismissal such that punitive damages are appropriate?

Limitation period

[8] The Defendants argue that the Plaintiff’s claim for underpayment of salary and overtime should be dismissed on the ground she is statute barred because the claim was commenced more than two years after she knew or ought to have known there was a problem with her salary payments.

[9] The relevant sections of the Limitations Act, 2002[^1] state:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5 (1) A claim is discovered on the earlier of,

(a) The day on which the person with the claim first knew,

(i) That the injury, loss or damage occurred,

(ii) That the injury loss or damage was caused by or contributed to by an act or omission;

(iii) That the act or omission was that of the person against whom the claim is made, and

(iv) That, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) The day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place unless the contrary is proved.

[10] Additionally, fraudulent concealment will suspend a limitation period until the plaintiff can reasonably discover her cause of action.[^2]

[11] The Plaintiff’s evidence is that she had no knowledge of the shortfall in her bank account until she left the employ of the Defendants in 2010. The Defendants do not dispute this fact, but they argue that any evidence of a shortfall in her salary was discoverable by the Plaintiff no later than 2005.

[12] The issue therefore, is one of discoverability. Should the Plaintiff, by the exercise of due diligence, have known of any shortfall prior to 2010?

[13] The Plaintiff alleges the Defendants took steps to ensure she did not find out about the underpayments. She testified that she did not have any access to her bank account until 2005 when she obtained a bank card and thereafter could withdraw money from an automated teller machine. Prior to that date, the Defendants had full control of her account pursuant to a Power of Attorney. Furthermore, the bank branch was more than walking distance away, the Plaintiff did not drive and had to rely on one or other of the Defendants to take her to the bank, which they did only very occasionally.

[14] Once the Plaintiff had a bank card, she concedes she was in a position to determine her bank balance. However, the Plaintiff indicated that her sister, Dora Goveas advised her that it cost money to obtain a bank balance from an ATM and therefore it was better she not request her balance at the ATM. Finally, the Plaintiff also states that both the Defendants told her not to interact with the bank tellers as they did not want the bank where they did business learning how ill-educated the Plaintiff was and how poorly she spoke English.

[15] For reasons I will outline in more detail later, I find that the Plaintiff spoke only very basic English and therefore, even if she had not been warned off speaking to any teller, she would not have spoken to a bank teller to obtain her balance. In addition, and again for reasons I will develop later, the Plaintiff put her full trust in her sister and brother-in-law. She did not question what she was told by them.

[16] A reasonable person is defined at s. 5(1)(b) of the Limitations Act as someone ‘with the abilities and in the circumstances of the person with the claim’. In this case, that means someone who

• Was not born in Canada;

• Spoke only minimal English;

• Was living exclusively in the home of her employers and had little social interaction outside the family;

• Trusted her employers implicitly given they were family;

• Had a moderate education;

• Was diagnosed as autistic and noted as having problems with speech and social interactions.

[17] The Defendants took a number of steps to make it difficult for the Plaintiff to know the actual state of her financial affairs. Arthur Goveas paid the Plaintiff by cheque drawn on his business account. He also deposited the cheques into the Plaintiff’s account. Any withdrawals made from the account for the purpose of purchasing a GIC or to deposit in an RRSP account, he did.

[18] Mr. Goveas did not prepare any reconciliation of the Plaintiff’s net pay cheque after deductions for income tax, EI and CPP with the gross amount of pay due to her. Consequently, the Plaintiff never saw any such reconciliation. Arthur Goveas prepared the Plaintiff’s T4 slips. He admitted in court that the amounts listed in the T4s bore little resemblance to what he had actually paid the Plaintiff. His accountant prepared the Plaintiff’s income tax return based on the numbers he supplied. These returns were filed as exhibits.[^3] The returns were either not signed at all by the Plaintiff or – as candidly admitted to by Arthur Goveas – signed by someone other than the Plaintiff. She testified she never saw any of her income tax returns.

[19] The Plaintiff testified she did not have a key to the Defendants’ mailbox and only saw mail they gave to her. Consequently, she never saw a bank statement.

[20] In short, the Defendants concealed from the Plaintiff the fact they paid her irregularly[^4], underpaid her and manipulated her account using the Power of Attorney without first advising her of their intentions.[^5] On the other hand, the Defendants told the Plaintiff they would take care of her and ensure she had a pension. Her bank statements show that some of the money in the account was used to purchase GICs and RRSPs in the Plaintiff’s name.

[21] In my view, this concealment coupled with the trust the Plaintiff placed in the Defendants, and her language, psychological and social limitations created a situation where the Plaintiff was unable to exercise due diligence in order to discover the state of her financial affairs until after she left the Defendant’s employ.

[22] As a result, I find that the shortfall of money in the Plaintiff’s account was not discoverable until 2010 and this action was therefore started within the limitation period.

[23] Before moving on to the other issues in this case, it is necessary to deal with the issue of credibility.

Credibility

[24] The credibility of the three main witnesses in this case – Mable Fernandes, Arthur Goveas and Dora Goveas – plays a significant role. As noted earlier, the end result of this case is largely dependent on findings of fact. These witnesses testified to their versions of the events that form the backdrop to this case.

[25] In assessing credibility the court ought to apply certain guidelines. These guidelines are set out in R. v A.M.[^6] The relevant ones are as follows:

• Every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate[^7];

• One of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath.[^8] Inconsistencies vary in their nature and importance. Some are minor, others are not. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned[^9];

[26] To these guidelines, I would add the following comment: another useful tool in assessing credibility is to assess the consistency of a witness’ evidence with that of other witnesses if there is no evidence of collusion or with independent evidence, such as documentary evidence. These guidelines permit a judge to assess not just credibility but also reliability. A witness may be credible, but for various reasons not reliable. On the other hand, a witness who is not credible is never reliable.

[27] The assessment of Ms. Fernandes’ credibility was complicated by the fact she testified through an interpreter and her demeanour was wooden. The problem with Ms. Fernandes demeanour may have been due to her autism. In addition, she would repeat earlier testimony in answer to some questions. In a different witness, this latter behaviour might have led the court to find she was evasive, but in her particular circumstances, I could not make such a finding. The Plaintiff was not unintelligent but her limited education and language issues meant that at times she had trouble grasping some of the subtleties of the questions she was asked. Despite these difficulties, I found the Plaintiff to be for the most part a credible witness. Much of her testimony was confirmed by other witnesses or by the documentary evidence. This fact enhanced her reliability. Whenever I have not found her to be credible or reliable, I have outlined why.

[28] Arthur Goveas was not a credible witness. He was a businessman who, at the time of these events, had been living in Canada for over twenty years and who had been running his own business for more than a decade. This business was to all appearances a successful one. His explanation for the erratic deposits to the Plaintiff’s account, the lack of documentation in relation to her salary, the fact the figures he supplied to his accountant for the preparation of the Plaintiff’s T4s were to some extent a work of fiction, the fact her income tax returns were not signed or were signed by someone other than the Plaintiff was that he had been ‘sloppy’. It is notable that one of the other witnesses – Vincent Fernandes – who had also worked for Mr. Goveas had no complaints concerning how or when he was paid. It is inconceivable that a businessman would be successful if he was as ‘sloppy’ as Mr. Goveas was with respect to the Plaintiff’s money. I find that Mr. Goveas was not so much sloppy as negligent when it came to paying his sister-in-law.

[29] Dora Goveas was a more credible witness than her husband, but her testimony often mirrored his and I find that where that is so, it was also not credible.

[30] One of the primary disputes in this case involved the Plaintiff’s English language skills. The Plaintiff testified that her English skills were very basic. The Defendants contended that the Plaintiff had a good comprehension of the English language both written and oral. They also stated that they primarily spoke English at home and that their children spoke no Konkani (the parties’ mother tongue).

[31] When the Plaintiff initially applied for a visa to come to Canada as a caregiver, she was required to go through an interview. Her English language skills were noted by the assessors at the High Commission to be poor and she was denied a visa. When she went to her second interview, she brought with her a document asserting that she had taken a two month English language correspondence course. The Plaintiff denied she had ever taken such a course. The High Commission expressed some doubts about the authenticity of some of the Plaintiff’s documents but ultimately granted her a visa.

[32] The Plaintiff told the court she managed to pass the second interview because her sister Dora Goveas sent her questions and answers in both English and Konkani and she was able to rehearse her answers. Mrs. Goveas testified that she reviewed the probable interview questions and answers with the Plaintiff, but denied actually sending her any written questions and answers. In either event, the Plaintiff was able to prepare for the interview.

[33] Despite their contention that the Plaintiff’s English language skills were good, the Defendants were unable to produce a single document written by the Plaintiff. Every document relating to the Plaintiff was drafted by someone else. The most the Plaintiff ever did was sign a document. There was no witness brought by the Defendants who could corroborate their assertion. Finally, it is notable that the Plaintiff never attended any ESL courses. Her initial visa did not permit her to take courses, but starting in 2004 those restrictions were lifted.

[34] Based on the evidence and the lack of evidence to the contrary, I find that the Plaintiff’s English language skills are as basic as she describes them.

The terms of the employment contract

[35] The next issue to deal with concerns the terms of the Plaintiff’s employment contract.

[36] The Plaintiff claimed that she was promised $5,000/month in salary if she came to Canada to act as the Defendants caregiver/housekeeper. She asserts that this contract was oral only, but made prior to her arrival in Canada. She also contends she would never have come to Canada had she known she would only make minimum wage.

[37] The Defendants state that they offered to pay the Plaintiff minimum wage, less room and board in return for her services. Their offer is contained in a letter they sent to Human Resources Development Canada (HRDC) – a government agency who had to pre-approve their job offer before the Plaintiff could apply to come to Canada.[^10] They indicated that this same letter was sent to the Plaintiff to be included in her application for a visa to work in Canada.[^11]

[38] For an oral agreement to exist, the essential terms of the contract must be agreed upon by the parties. In other words, there must be a meeting of the minds (i.e. consensus ad idem) by the parties in respect of the essential terms of the agreement. The test for whether there has been a meeting of the minds is objective. It was described as follows by Pepall J. (as she then was), in UBS Securities Canada Inc. v. Sands Brothers Canada Ltd.[^12]:

For parties to be bound by contract, there must be a meeting of the minds, commonly referred to as consensus ad idem. The test as to whether there has been a meeting of the minds is an objective one and has been described as follows:

... [T]he parties will be found to have reached a meeting of the minds, in other words be ad idem, where it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined within a reasonable degree of certainty ...

[39] Evidence of the parties’ subjective intention does not determine whether the parties came to an agreement or, if so, the terms of that agreement.[^13] The test asks what a reasonable observer would think was the parties’ intention in light of all the circumstances.

[40] Where the parties have come to the requisite meeting of the minds with respect to all essential terms of the agreement, the agreement is complete and enforceable, even where it may provide for some further formal written document or record of the agreement to be executed. On the other hand, no contract exists if the essential elements of the agreement have not been settled or agreed upon, where terms are missing or have not been finalized, or where there is ambiguity about what the parties have agreed to or the contract is too general or uncertain.[^14] Pepall J. observed the following about the need for certainty in UBS Securities Canada Inc.:

Intention alone is insufficient to create an enforceable agreement. The essential terms must also be sufficiently clear to suggest that the parties came to an agreement.

... I am satisfied ... that the parties intended to make a contract. However, this does not end the matter. Notwithstanding that the parties may have thought they were bound, if the essential terms of the alleged contract lack certainty, either because they are vague or because they are obviously incomplete, the result will not be a binding contract: 9 Hals., 4th ed. Para. 262; Treitel, The Law of Contract, 5th ed. (1979), at p. 40; Corbin on Contracts at p. 394.: Canada Square Corp. v. Versafood Services Ltd..

[41] The court’s task in interpreting or determining the terms of an agreement is the same whether the contract is oral or written. However, where the agreement is exclusively oral, the evidence admissible on the inquiry may be broader. As stated in G.H.L. Fridman, The Law of Contract in Canada:

When everything is oral, and there is no written contract at all, proving what has been agreed may be a difficult task, but once it is established what the respective parties said, and what was the nature and content of their undertakings, effect must be given to their express language. In the case of a completely oral contract there is greater flexibility in the nature of the evidence that is admissible to prove the contents of the contract and the meaning of the language used by the parties. In the case of a contract that is in writing the attitude of the law has been stricter. The reason for this is clear. If the parties have seen fit to put their contractual intentions into writing, it must be because they wanted their meaning to be clearly and unequivocally established. There should be no room for argument about what has been agreed. The written word should make plain beyond doubt or question what were the requirements of the contract that was entered into by the parties.[^15]

[42] The conduct of the parties after the alleged agreement was made can be a strong indication of the existence of an agreement and/or of the terms of that agreement.[^16]

[43] In the present case, the only evidence concerning the existence of an oral contract promising a salary of $5,000/month comes from the Plaintiff. Her testimony is corroborated to a limited degree by her brother, Vincent Fernandes. During her testimony, it was apparent the Plaintiff was unaware that room and board would be deducted from her wages. It was also clear she had only a limited understanding of the fact income tax, CPP and EI would also be deducted. She seemed to believe that she would receive the full amount of her salary.

[44] On the other hand, the Defendants’ assertion that they only ever promised minimum wage is corroborated not only by the letter they sent to HRDC and which they state was also sent to the Plaintiff, but also by two other subsequent letters sent to the Federal Government in order to renew the Plaintiff’s visa.[^17]

[45] In addition, an annual salary of $60,000 in 2001 for a live-in caregiver/housekeeper is well outside the usual range.

[46] In my view, the Plaintiff was mistaken in thinking she would receive a salary of $5,000/month and consequently, I cannot find there was an oral contract with those terms. Instead, I find there was an agreement for a salary of minimum wage, less room and board. That agreement is evidenced by the letter sent to HRDC.

Overtime

[47] The Employment Standards Act, 2000[^18] requires overtime to be paid where an employee has worked more than 44 hours per week. Overtime is paid at a rate of one and half times the regular salary. In addition, the regulations associated with the ESA indicate when an employee is considered to be working versus not working.[^19] As noted in Leys v. Likhanga,[^20]

Employers may be surprised to learn that their employees may be working within the meaning of the Act when there is actually no product of their labour. It is important however to understand why this is the case. Wages do not guarantee purchase of an actual service or product from an employee. Rather, wages purchase an employee’s time during which productivity may be expected. This may be explicit, as in workplaces with settled work schedules, 9:00 a.m. to 5:00 p.m. for example, or it may be implicit, such as when the amount of work assigned indicates a need to perform overtime. Complications arise, however, when there is incongruity between the employer’s expectation about the time required to complete a set of tasks and the employee’s individual ability to do so. In light of its broad remedial purpose, however, the Act’s provisions favour the employee in such circumstances. Further, even when no work has been assigned but an employee is not free to leave the workplace and pursue personal endeavours without regard for his or her employer’s interest, generally speaking, that employee is “working” for the purposes of the Act, even in the absence of any productivity or benefit for the employer.[^21]

[48] Accordingly, what matters is not how long it did, or should have, taken the employee to fulfill all of the tasks she is given, but rather whether the employee was in a position to go about her own business once she had completed her tasks.

[49] The Plaintiff claims she worked significant overtime. She says she took care of the Defendants’ children before school by dressing them, preparing the family’s breakfast and feeding breakfast to the children. She then walked the older child to school and took the younger child to daycare. While the children were out of the house, she cleaned the house, prepared lunch and took lunch to the business premises for the Defendants. She also picked up the younger child from daycare at 2pm and had her in her care until her bedtime. In addition, she prepared dinner and cleaned the kitchen up afterwards. She prepared the children for bed and put them to bed around 9 or 10pm. The Plaintiff testified that the children had after school activities and Mrs. Goveas would take them to those activities, but the Plaintiff either stayed home with whichever child was not going to the activity or stayed at the activity with the children.

[50] The Plaintiff also indicated that while she did not have childcare responsibilities on the weekend, she still had to prepare all the meals for the family. She stated that the Defendants regularly had parties to entertain clients or family and she was responsible for preparing any food and cleaning up after the party.

[51] Moreover, the Plaintiff testified that she did the gardening and lawn care as well as snow clearance in the winter.

[52] The Plaintiff stated that both Defendants worked very long hours in their business, including evenings and weekends.

[53] On the other hand, the Defendants indicated that not only did the Plaintiff not work overtime, she rarely even worked a 37 hour week.

[54] They indicated that Mrs. Goveas and the Plaintiff shared all the household tasks. They denied that the Plaintiff ever assisted with the children’s activities or took them to school or daycare. Mrs. Goveas said that while the Plaintiff occasionally helped with the younger child’s math homework, she otherwise had no childcare duties after the children came home from school.

[55] The Defendants also indicated that while the Plaintiff did prepare meals, this was not an onerous task and the clean-up was shared with Mrs. Goveas. Mrs. Goveas denied she worked long hours and testified she was usually home in time to greet her older child at the bus stop and sometimes, she was home as early as 2pm. She also said that the Plaintiff had all her evenings free and used them to watch television and read books.

[56] Both Defendants pointed out that the house was small and did not require a lot of cleaning. They said it was only cleaned once a week and that task was shared by the Plaintiff and Mrs. Goveas. They also testified they rarely entertained and when they did, it was a family celebration in which everyone pitched in with food or the event was catered.

[57] Finally, the Defendants stated that Mr. Goveas cut the lawn and a company took care of snow clearance if the snowfall was more than 5cm. If it was less, the Plaintiff might have had to shovel snow, but she would have had assistance from other family members.

[58] The problem with the Defendants’ assertions as set out above is that even if they are accurate, they ignore the principles of the ESA. On their evidence, the Plaintiff was not in a position to leave the house during the day in order to pursue her own personal endeavours. She had childcare, house cleaning or meal preparation and clean-up even though it may have been shared with Dora Goveas.

[59] The Defendants contended the Plaintiff had so little work to do that they assigned her a task in which she read the daily obituaries and sent pamphlets to the families of the deceased outlining the Defendants’ company’s services. This task involved determining which obituaries were new as opposed to being memorials, then locating the home addresses of the families by looking in the telephone book, finding the postal codes and then writing out the addresses and mailing the envelopes.

[60] As noted earlier, the Plaintiff’s English language skills were very limited. In my view, it is very unlikely that she could have carried out the task outlined in the previous paragraph. It is equally unlikely that the Plaintiff spent much time reading books in English. Accordingly, I do not accept the Defendants’ evidence with respect to these assertions.

[61] When asked why they wanted the Plaintiff to come to Canada if they had so little work for her, both Defendants responded they wanted to give her a better life than she had in India. This purported altruism does not accord well with the file notes on the progress of the Plaintiff’s visa application obtained from the High Commission for Canada in New Delhi.[^22] Those notes show that within a very short period of time after the Plaintiff was first refused a visa, the Defendants had hired a lawyer to assist them with a renewal of the visa application. They also helped prepare the Plaintiff to pass the English language interview. This level of effort is suggestive of a significant need for the Plaintiff’s services.

[62] In addition, Mrs. Goveas testified that prior to the Plaintiff’s arrival she had indeed worked very long hours. She stated that before the business was started, she worked at least two jobs and often worked seven days a week. This evidence is also strongly suggestive of the fact that the Plaintiff’s services were very necessary. The fact that both Defendants worked long hours was corroborated by Vincent Fernandes who worked for the Defendants for several years.

[63] On the one hand, I do not accept all the Plaintiff’s evidence concerning her hours of work. I do not accept the Plaintiff’s evidence that there were parties every weekend. That testimony does not fit with the testimony that the Defendants worked long hours, including weekends.

[64] On the other hand, I do accept that the Plaintiff did all the household tasks and childcare responsibilities and that these responsibilities involved both evening and weekend work. Consequently, I find that the Plaintiff did work overtime. Based on the testimony of the Plaintiff that I accept, I find the Plaintiff worked on average a ten hour day during the week and a further four hours a day on each weekend day or approximately 58 hours per week.

[65] In accordance with the Employment Standards Act, 2000, the Defendants were required to pay the Plaintiff her regular rate up to 44 hours and time and a half for the remaining overtime.

Underpayment of salary and unauthorized withdrawals

[66] The Defendants admit they underpaid the Plaintiff’s salary. They have submitted a chart indicating they owe the Plaintiff $9,526.39, not including pre-judgment interest. However, the chart does not take into consideration that in 2002 and 2003, the Plaintiff’s annual salary was $16,000.[^23] It also fails to take into consideration that in 2004 her income was $22,930, in 2005 it was $20,200, in 2006 $22,552, in 2007 $23,098, and in 2008 $21,200. In 2009 her reported income was $15,400 but it ought to have been $18,278 based on 37 hours per week and minimum wage.[^24] According to the Plaintiff’s tax return her 2010 income is listed as $18,600 but it is unclear whether the Plaintiff earned any other income after she left the Defendants’ employ. Consequently, I accept the Defendants evidence that she earned $14,716 during the nine months she worked for them.

[67] The Defendants will have to adjust their calculation of the underpayment to the Plaintiff based on the numbers indicated above.

[68] Arthur Goveas had a Power of Attorney signed by the Plaintiff.[^25] The Plaintiff presented evidence that four cheques were drawn on her account and signed by Arthur Goveas. She testified that these cheques were written without her knowledge or consent and the Defendants have therefore failed to account to her for these cheques.

[69] The holder of a Power of Attorney (POA) must account to the person for whom they hold the POA for any monies taken from their bank account.[^26]

[70] In the present case, the Plaintiff claims she was unaware she had ever signed a Power of Attorney. The Defendants deny this and state the Plaintiff was well aware of the existence of the POA.

[71] There is something of a mystery associated with the Power of Attorney. The evidence indicates that two Powers of Attorney were signed. The first POA was signed on February 20, 2001; the second POA was signed on September 24, 2001. None of the witnesses were able to explain why this occured.

[72] The Plaintiff testified that on February 20, 2001, shortly after her arrival, she was taken to the Defendants’ bank allegedly to open a bank account. She was presented with a document to initial and sign, but the top of the document was concealed from her view and Mr. Goveas did not tell her what the document was. The Defendants also assert that the POA was explained to the Plaintiff and she agreed to it. There is insufficient evidence to make a determination of this specific issue and in any event it is unnecessary to do so. As noted earlier, Mr. Goveas had a duty to account to the Plaintiff for his management of her financial affairs.

[73] The Plaintiff testified that she was never shown any of these cheques and never told what they were for. The Defendants indicated that they accounted to the Plaintiff for all these cheques. The Plaintiff argued – and I agree – that if the Defendants had gone to the trouble of explaining these cheques to her, why not get her to sign them at the same time? It beggars belief that they would explain cheques to the Plaintiff that were drawn on her account and then not get her to sign them. As a result, I find that all of these cheques require an explanation.

[74] In the case of the four cheques, Arthur Goveas gave the following explanations for his use of the Plaintiff’s funds:

• Cheque for $6,770 – Mr Goveas indicated he had asked Mrs. Goveas to start paying the Plaintiff, then forgot that he had made that request. Consequently, this cheque was to rectify the overpayment;

• Cheque #5 for $6,000 – Mr. Goveas was not sure what this cheque was for, but believed it was deposited into an investment account held by the Plaintiff;

• Cheque #6 for $6,000 – This cheque was a repayment of funds disbursed by the Defendants on the Plaintiff’s behalf for airline tickets, gifts, clothes and spending money for a trip to India in December 2004; and

• Cheque for $5,000 – Mr. Goveas indicated that this cheque represented a reimbursement of all the monies spent by the Defendants to bring the Plaintiff to Canada, such as visa application fees, airfare, lawyer’s fees, etc.

[75] The problem with Mr Goveas’ explanation for the first cheque is that some of the cheques he presented to court and said were double payments were not deposited into the Plaintiff’s account until well after this cheque was prepared.[^27]

[76] The explanation for the first of the two $6,000 cheques, cheque #5 is problematic. The bank provided a letter in which they indicated that while the Plaintiff’s bank statement does indicate the cheque was deposited into an investment account, they were able to confirm it was not an account held by the Plaintiff.[^28]

[77] The explanation for the second of the two $6,000 cheques, cheque #6 is more believable. The Plaintiff acknowledged she went on a trip to India in December 2004. She also indicated she believed the trip had been paid for by her brother. However, the only documentary evidence available would suggest otherwise.[^29] I find that this cheque was for expenses incurred for the Plaintiff’s trip.

[78] Finally, the $5,000 cheque was conceded by the Defendants to have been inappropriately drawn on the Plaintiff’s account. They waited more than three years to collect on the money they disbursed on the Plaintiff’s behalf. While Mr. Goveas said the Plaintiff wanted to pay them back as soon as she had the necessary funds, she had those funds as early as June 2002 and the Defendant did not collect. Consequently, I agree with the Defendants counsel that the money disbursed for visa application fees, etc should be treated as a gift and therefore this money should be returned to the Plaintiff.

[79] In conclusion, the Defendants are to repay the Plaintiff $17,770 plus pre-judgment interest.

Was the Plaintiff dismissed or did she leave voluntarily?

[80] The next issue to deal with is whether the Plaintiff left the Defendants’ employ voluntarily.

[81] The backdrop to the end of the Plaintiff’s employ is important in understanding the parties’ respective positions.

[82] Mr. Goveas had started a business in India. His brothers-in-law who were living in India worked for that business. At some point in 2009, a dispute arose between Mr. Goveas and his brothers-in-law. There were allegations of wrongdoing on both sides. Not unnaturally, this situation caused tension in the Goveas household and, according to Mrs. Goveas, led to Mr. Goveas being unhappy with all of his in-laws.

[83] It is at this point that the waters become murky. The Goveas’ allege that the Plaintiff sided with her brothers in India and decided she wanted nothing further to do with the Defendants. Mrs. Goveas testified that the Plaintiff told her six months before she left that she would be leaving – in effect giving six months’ notice. Conversely, the Plaintiff states she was aware of the dispute but was not taking sides. Instead, she was unhappy with the move to a larger house and asked for a raise. She testified that not only was Mrs. Goveas so angry with her request for a raise that she assaulted the Plaintiff, but she also summarily fired her.

[84] There are two pieces of documentary evidence that in my view resolve this dispute:

• The Defendants gave the Plaintiff $5,000, paid for her airfare to Calgary and asked her to sign a release. They testified that the $5,000 was a goodwill gesture. If Mr. Goveas was so unhappy with his in-laws, why was he prepared to give such a generous gift to the Plaintiff? I do not find this assertion to be credible in the circumstances and I find that this payment was in fact a severance payment.

• The Record of Employment prepared by Mr. Goveas lists the reason for leaving as ‘shortage of work/end of contract’. Mr. Goveas said he wrote that statement because he wanted to ensure the Plaintiff could obtain unemployment benefits. I do not accept that explanation. Given the serious nature of the dispute in India and Mr. Goveas’ feelings towards his in-laws, it is unlikely he would do something as serious as lying on an official form in order to assist his sister-in-law.

[85] Accordingly, I find that the Plaintiff was dismissed from her employ.

Reasonable notice

[86] There is no question that the Plaintiff was dismissed without cause. Employers may dismiss employees without cause, but they are required to pay an appropriate amount of severance. In this case, the key issue is the appropriate amount of severance.

[87] The courts have long recognized that employment is an important aspect of a person’s life and sense of self-worth.

[88] In Reference Re Public Service Employee Relations Act,[^30] Chief Justice Dickson wrote that:

Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.[^31]

[89] In Wallace v. United Grain Growers Ltd.,[^32] the Court recognized that a contract of employment is different than other commercial contracts in that there is a power imbalance between the employer and employee which ‘informs virtually all facets of the employment relationship.’[^33]

[90] When an employer dismisses an employee without cause, the employer must provide reasonable notice or compensation that is equivalent to reasonable notice. The purpose of notice is primarily compensatory.[^34] The court is required to determine an amount that seems fair and reasonable.

[91] In determining the appropriate length of a notice period, the court takes into consideration a number of factors. These factors were first outlined in Bardal v. The Globe & Mail Ltd.[^35] These factors include the character of the employment, the length of service of the employee, the age of the employee and the availability of similar employment having regard to experience, training and qualifications of the employee.[^36] A rule of thumb for severance for a long-term employee that appears to be used regularly is one month’s pay for every year worked for that employer.

[92] In assessing the appropriate notice period in the present case, I note the following:

• The character of the employment – as a caregiver/housekeeper – would not of itself attract a longer than average notice period;

• Length of service. In this case, the Plaintiff worked for the Defendants for nine years. As noted in Ansari v. B.C. Hydro & Power Authority, ‘the law requires a longer notice period for a long-term employee.’[^37] Working for nine years as a caregiver/housekeeper is a significant length of time. Such positions are usually occupied for much shorter periods of time;

• The age of the employee at the time of dismissal. Again as noted in the Ansari case, ‘age bears so importantly upon the prospects for other similar employment.’[^38] In this case, the Plaintiff was 51 years of age when she was terminated. The likelihood of her obtaining a similar position, particularly given the difficulties her age presents are compounded by her lack of English language skills, is remote. This factor militates in favour of a longer notice period.

[93] Using the rule of thumb, the notice period in this case starts at nine months. In my view, that period should be raised to 10 months to take into consideration the Plaintiff’s length of service and her age at the time of her dismissal.

[94] At the time she left the Defendants’ employ, the Plaintiff was earning $1,635/month. The appropriate severance was therefore $16,350 less the $5,000 she was actually paid, so she is owed $11,350 plus pre-judgment interest.

Punitive Damages

[95] The Plaintiff argues that the manner of her dismissal warrants punitive damages. As noted earlier, she alleges that when she asked for a raise, her sister shoved her against a counter and then summarily fired her. She also contends she was denied breakfast the morning she left and required to wait in a car, in a closed garage with the car engine running.

[96] The latter part of this story is so improbable it colours the Plaintiff’s entire account of these events. Mrs. Goveas categorically denies she ever assaulted the Plaintiff or treated her in such a cavalier, not to mention dangerous, fashion. Mrs. Goveas was clearly very upset by these allegations and I have no hesitation in finding that the events as outlined by the Plaintiff never occurred.

[97] As noted in the Wallace case, ‘punitive damages are an exception to the general rule that damages are meant to compensate the plaintiff. The purpose of such an award is the punishment of the defendant.’[^39] Such damages are only awarded where the employer’s behaviour can be characterized as ‘harsh, vindictive, reprehensible and malicious’.^40

[98] Given I have found the Plaintiff has not proven the Defendants behaved in any way that could be described in the words noted above, I also find that there are no grounds for an award of punitive damages.

Conclusion

[99] The parties should be able to come to an agreement on quantum of monies owed to the Plaintiff based on the findings set out above. However, if they are not, they may set a time to appear before me to argue the matter.

Costs

[100] The parties should attempt to resolve the issue of costs themselves, however, if the parties cannot resolve the issue of costs, brief written submissions of no more than one page, with attachments including Offers to Settle and a detailed Bill of Costs, are to be provided with 15 days with a right of reply within a further five days.

Madam Justice Julianne Parfett

Released: April 6, 2016

CITATION: Fernandes v. Goveas, 2016 ONSC 1992

COURT FILE NO.: 12-CV55593

DATE: 2016/04/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mable Fernandes

Plaintiff

– and –

Arthur Goveas, Dora Goveas and 1252336 Ontario Ltd, cob as Grace Monuments

Defendants

REASONS FOR JUDGMENT

Parfett J.

Released: April 6, 2016

[^1]: S.O. 2002, c.24

[^2]: M(K) v. M(H), 1992 CanLII 31 (SCC), [1992] 3 SCR 6 at para. 61.

[^3]: Exhibit #19

[^4]: See Exhibit #1, tab 21. The Plaintiff was supposed to be paid monthly but as an example in 2002, the Plaintiff was paid in March, May, June, July, September, November and December.

[^5]: See Exhibit #1, tab 23.

[^6]: 2014 ONCA 769.

[^7]: At para. 9, citing R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 SCR 122 at p. 134.

[^8]: At para. 12, citing R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 CCC(3d) 347 (OCA) at p. 354.

[^9]: At para. 13.

[^10]: Exhibit #1, tab 4

[^11]: Exhibit #1, tab 1

[^12]: (2008), 2008 CanLII 19507 (ON SC), 45 B.L.R. (4th) 105 (Ont. S.C.), at para. 40, aff’d 2009 ONCA 328, at paras. 86-88.

[^13]: Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129, at para. 54; S & J Gareri Trucking Ltd. v. Onyx Corp., 2014 ONSC 4765.

[^14]: Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 1991 CanLII 2734 (ON CA), 79 D.L.R. (4th) 97 (Ont. C.A.); Picavet v. Clute, 2012 ONSC 2221, 22 R.P.R. (5th) 72, at para. 12.

[^15]: 6th ed. (Toronto: Carswell, 2011), at p. 436.

[^16]: Schremph v. Willchuk, 2013 ONSC 2863, 89 E.T.R. (3d) 303

[^17]: Exhibit #1, tabs 5 & 6.

[^18]: S.O. 2000, c.41.

[^19]: See s. 6 of O.Reg 285/01.

[^20]: 2012 CarswellOnt 6703 (OLRB).

[^21]: At para. 15.

[^22]: Exhibit #1, tab 2

[^23]: See Exhibit #1, tabs 5 & 6.

[^24]: Exhibit #1, tab 19

[^25]: Exhibit #1, tab 14

[^26]: See the Substitute Decisions Act, 1992, S.O. 1992, c.30 ss. 32(6) and 38(1). See also Lacroix v. Kalman, 2015 ONSC 19 at para. 31.

[^27]: See Exhibits #13 & 14.

[^28]: Exhibit #17.

[^29]: Exhibit #1, tab 3 – an invoice for airfare that clearly divides up the cost of the airfare between the Plaintiff and her brother.

[^30]: 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313.

[^31]: At para. 91.

[^32]: 1997 CanLII 332 (SCC)

[^33]: At paras 90-92.

[^34]: Farber v. Royal Trust Co., 1997 CanLII 387 (SCC), [1997] 1 SCR 846 at para 48

[^35]: 1960 CanLII 294 (ON SC), [1960] OJ No 149

[^36]: At para 21.

[^37]: 1986 CanLII 1023 at para. 26

[^38]: At para. 27

[^39]: Wallace, supra. Note 25 at para. 79.