CITATION: Fernandes v. Goveas, 2016 ONSC 2960
COURT FILE NO.: 12-CV55593
DATE: 2016/05/03
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 Defendants
HEARD: By written submissions (Ottawa)
supplemental REASONS FOR decision
Parfett J.
[1] The Defendants in this matter are seeking clarification of the quantum of overtime payable to the Plaintiff. The parties addressed this issue with the submission of written arguments.
[2] The Defendants argue that the decision is silent on several issues impacting the calculation of any payment of overtime. Specifically, they assert,
• The Plaintiff could have sought work elsewhere after 2004 and therefore no overtime should be paid after that date;
• Any overtime claim is statute-barred;
[3] In the alternative, they contend,
• The business was closed from December 1 - March 31 every year and therefore the overtime the Plaintiff claimed she worked because of the long hours the Defendants worked could not apply to this period;
• The family went on long vacations during the period the business was closed, so the Plaintiff could not have been working overtime; and
• The Plaintiff herself took long vacations during this period.
[4] Finally, the Defendants ask that the issue of the fraudulent withdrawal of cheques be revisited. Specifically, the Defendants contend that the reason for my rejection of the explanation for the withdrawal of $6,770 is not founded in the evidence.
[5] The Plaintiff disputes all aspects of these contentions and asks that I reject the Defendants’ request.
Legal Principles
[6] A court can only revisit an order or judgment in strictly limited circumstances. The general rule is that the court has no jurisdiction to reopen or amend a final decision unless: (1) there has been a slip in drawing up the judgment, or (2) there has been an error in expressing the manifest intention of the court.[^1]
[7] This common law power is codified in Rule 59.06(1) of the Rules of Civil Procedure[^2]:
59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendments in any particular on which the court did no adjudicate may be amended on a motion in the proceeding.
[8] Justice Perell explained the scope of this rule and the common law position in Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celistica Inc.[^3]:
[30] Rule 59.06 (1) is designed to amend judgments containing a slip or error, errors which are clerical, mathematical or due to misadventure or oversight. The rule is designed to amend judgments containing a slip, not to set aside judgments resulting from a slip in judicial reasoning: Central Canada Travel Services v. Bank of Montreal, 1986 CanLII 2576 (ON SC), [1986] O.J. No. 1249 at para. 21 (H.C.J.); Dhaliwal v. Plantus, [2007] O.J. No. 5450 at para. 4 (S.C.J.). Rule 59.06 (1) is not designed to be a disguised means to review errors in the making of the Reasons for Decision; rather, it is designed to correct errors in memorializing the Reasons into a formal order or judgment.
[9] In Kerrr v. Danier Leather Inc.[^4], Justice Cumming held that the court retained jurisdiction to make an order for costs after the publication of the judgment because excluding this issue did not reflect the court’s true intention. The court had not previously adjudicated upon the merits of the costs decision and both parties were given the opportunity to make submissions before the decision was amended[^5].
[10] The Ontario Court of Appeal has recently held that “A judgment based on a claim not made or a theory not advanced and argued cannot stand. The fairness and reliability of the adversarial process demand that each side have notice of the other’s claims and a full opportunity to respond to those claims”[^6].
[11] Where a decision departs from the adversarial process and is not anchored in the pleadings, evidence, positions or submissions of the parties, it may be contrary to natural justice[^7].
Analysis
[12] The issue of the impact of vacations purportedly taken by the Defendants and the closing of the business was never pleaded or argued by the Defendants during the trial. However, I have permitted them to argue this issue via written submissions as it impacts on the ultimate quantum to be paid to the Plaintiff.
[13] Based on the written submissions, I make the following additional findings:
• The issue of the limitation period has already been dealt with in the main decision. I will not re-visit it now;
• The fact the Plaintiff could have worked elsewhere if she was unhappy with the amount of overtime she was expected to work is irrelevant. Once again, the main decision deals with the Plaintiff’s limitations with respect to skills, language and social interactions. I will not re-visit it.
• The evidence concerning the closing of the business was very limited. It comes solely from Dora Goveas. The only confirmation – and it was very limited – came from Vincent Fernandes, who stated that sometimes the business closed for the month of December. He could have been cross-examined on this point and was not. In addition – and most importantly – the Plaintiff was not cross-examined on this issue. There is therefore, no evidence of the impact of any business closure on her work. Pursuant to Browne v Dunn[^8], I cannot put much weight on Dora Goveas’ evidence. In the circumstances, the purported closure of the business cannot therefore have any impact on the calculation of overtime;
• There was no evidence of consequence regarding the family’s vacations and certainly the evidence that was provided did not relate directly to what the Plaintiff did or was expected to do while the family was gone or while she was with them. This evidence would be critical to determine whether the Plaintiff was still working, on vacation and what, if any overtime was worked. Given the lack of evidence on this point, I cannot find it has any impact on the calculation of overtime; and
• The Plaintiff’s evidence concerning her own vacations was that she took almost no vacation time, with one exception being a month long trip to India in 2009. There was also a brief, 4 day trip to Toronto. No overtime is payable during these periods.
[14] The final issue deals with the cheque written for $6,770 purportedly for overpayment of salary. A review of the cheques[^9] indicates that some of the cheques relating to the purported overpayment were not made until after the issuance of the reimbursement cheque. This fact ought to have been made clearer in the original decision and is an oversight on my part.
[15] For the reasons set out above, I find that no overtime is payable for the two vacation periods the Plaintiff indicated she took during the time she worked for the Defendants. Apart from this correction to my original decision, no other corrections are required.
Madam Justice Julianne Parfett
Released: May 03, 2016
CITATION: Fernandes v. Goveas, 2016 ONSC 2960
COURT FILE NO.: 12-CV55593
DATE: 2016/05/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mable Fernandes
Plaintiff
– and –
Arthur Goveas, Dora Goveas and 1252336 Ontario Ltd, cob as Grace Monuments
Defendants
supplemental REASONS FOR decesion
Parfett J.
Released: May 03, 2016
[^1]: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paras 113, 116.
[^2]: R.R.O. 1990, Reg. 194
[^3]: 2013 ONSC 1502, at para. 30
[^4]: (2005), 2005 CanLII 23095 (ON SC), 76 O.R. (3d) 354
[^5]: at paras. 39-40
[^6]: Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271, at para. 62
[^7]: Labatt Brewing Company Ltd. v. NHL Entreprises Canada, L.P., 2011 ONCA 511, 106 O.R. (3d) 677, at paras. 4-6
[^8]: (1893) 1893 CanLII 65 (FOREP), 6 R. 67
[^9]: Exhibit #13