Court File and Parties

COURT FILE NOs: CV-18-593807 DATE: 20190415 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joss Covenoho, Plaintiff – AND – First Data, Defendant

BEFORE: E.M. Morgan J.

COUNSEL: Joss Covenoho, in person Tudor Carsten and Ashley Boyes, for the Defendant

HEARD: April 12, 2019

Motion for Summary Judgment

[1] The Plaintiff moves for summary judgment in her wrongful dismissal claim. She worked for the Defendant as a Bilingual (French/English) Inbound Technical Call Centre Agent for roughly six months – from September 11, 2017 to March 8, 2018 – earning $22.00/hour for a 40 hour work week. She seeks 18 months’ pay in lieu of notice as well as millions of dollars in punitive damages.

[2] Since the Plaintiff was terminated without cause, I need not go into a lengthy narrative regarding her employment experience with the Defendant. Suffice it to say that the evidence establishes that it was a difficult and testy relationship. Affidavits from a number of the Defendants’ representatives and co-employees with the Plaintiff attest to her resistance to various job methodologies and training sessions implemented by the Defendant, and to her persistent threats to bring litigation against the Defendant and its personnel. The Plaintiff’s own evidence confirms much of this, albeit with a different spin. She has gone to some effort to explain that she did not agree with the new cross-training program the Defendant wanted her to go through, and to detail the various complaints, including internal ethics complaints, she submitted about supervisory employees.

[3] The Plaintiff appears to have had extensive and somewhat troubled experience with civil litigation. Her motion materials filed in this case contain lengthy and inflammatory allegations that repeat those already struck out of her pleading in an earlier motion. Her factum and motion record contains a substantial amount of material already struck from her Reply by Order of Glustein J. of this court dated October 10, 2018, but repackaged and reproduced here. The material also recounts incidents from previous legal actions in which she has been involved and in which she complains about wrongful conduct by no less than three of my judicial colleagues. She has had a difficult time focusing on the issues at hand.

[4] I note that the causes of action pleaded in the Statement of Claim include loss of pay (which I interpret to be, in effect, a wrongful dismissal pleading), 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. 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.

[5] Having said all of that, the Plaintiff was employed by the Defendant and was terminated without cause. She is therefore entitled to reasonable pay in lieu of notice. There was an Employment Agreement presented to her by the Defendant at the commencement of her employment, which she did not sign. The Plaintiff apparently presented the Defendant with a revised or amended Employment Agreement of her own which the Defendant in turn did not sign.

[6] The Plaintiff is of the view that she has proved the existence of a binding amended Employment Agreement by demonstrating that the Defendant’s management personnel had in fact received her draft of the amended Employment Agreement. It may well be that the Defendant received the proposed amendment, but there is no evidence that it was agreed to or acted on, and it is certain that it was never signed by anyone on behalf of the Defendant. Under the circumstances, for the purposes of determining her entitlement to reasonable notice of termination, the Plaintiff should be treated as an employee without a written employment agreement.

[7] The courts have repeatedly expressed the fact that the purpose of reasonable notice or compensation in lieu of notice is compensatory, not punitive: Farber v. Royal Trust Co., [1997] 1 S.C.R. 846, at para 48. Notice is calculated in accordance with the actual income and benefits that the employee would have earned over the course of the notice period, subtracting any income earned by the employee in mitigation less expenses incurred in achieving that mitigation: Brien v. Niagara Motors Limited, 2008 ONSC 41823, [2008] O.J. No. 3246, at para 268.

[8] The length of the notice period turns on a number of specific factors, as set out in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.). As the court put it, at 145:

There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.

[9] Counsel for the Defendant submit that the notice period for short-term employees – i.e. those who work for the employer for less than three years – generally are rather minimal. They cite the examples of King v. Peel, 2012 ONSC 1730, where an employee terminated after 10 months and earning $38,695 annually was awarded a notice period of two weeks, and Fanous v. Total Credit Recovery, [2006] O.J. No. 3036, where an employee terminated after 19 months and earning $21,000 annually was awarded a notice period of one month.

[10] On the other hand, longer term employees – i.e. those who work for the employer for more than three years – generally are more generous. A rule of thumb appears to have developed in which the value of reasonable notice is roughly one month’s salary and benefits for every year of employment. Again, counsel for the Defendant provides the example of Baxter v. NCO Financial Services Inc., 2010 CarswellOnt 7772, where an employee terminated after 3 ½ years and earning $38,054 annually was awarded a notice period of 3.5 months.

[11] The Plaintiff is 48 years old. As indicated, she was employed by the Defendant for just under six months. Her employment was relatively unspecialized and required no advanced education, although the requirement of bilingualism added an element of expertise that the Plaintiff brought to the job. The Plaintiff might need a modest amount of re-training in seeking out alternative employment, although her bilingualism is an asset that will doubtless assist her in seeking new employment.

[12] Counsel for the Defendant suggest that a reasonable notice period of 3 to 5 weeks is applicable here. In my view, that is 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. Five weeks is more than a month, and she only worked for the Defendant for half a year. The Plaintiff earned $9,365.18 in regular pay and $6,599.34 in overtime pay for the ten-week period preceding her termination. Adding 5% on her regular pay as representing the value of health and welfare benefits, the Plaintiff’s weekly employment income was $1,671.63. At that rate, which generously includes overtime pay, she earned somewhere in the range of $80,000. Five weeks’ worth of that annual income comes to $8,358.15.

[13] I will detour for one moment to address the fact that the Plaintiff spends a great deal of time describing what she considers to be improper conduct by the Defendant. She seeks a greater than usual notice period as a result of this conduct. That approach, however, has been rejected by the Supreme Court of Canada in Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362, 2008 SCC 39, at para 59:

…in cases where damages are awarded, no extension of the notice period is to be used to determine the proper amount to be paid. The amount is to be fixed according to the same principles and in the same was as in all other cases dealing with moral damages. Thus, if the employee can prove that the manner of dismissal caused mental distress that was in the contemplation of the parties, those damages will be awarded not through an arbitrary extension of the notice period, but through an award that reflects the actual damages.

[14] I see no grounds here for awarding any exemplary, moral, punitive, or any other damages in respect of the allegations of improper conduct by the Defendant. Those allegations are not proven on the evidence before me. What is proven is that the Plaintiff was a six month employee and was terminated without cause. For that, she is entitled to reasonable notice or pay in lieu of reasonable notice. I find that the appropriate notice period for the Plaintiff is 5 weeks.

[15] The Plaintiff did not mitigate her damages and did not answer Defendant’s request that she detail her efforts to do so. Defendant’s counsel asks that I make an adverse inference from that refusal. Given that the Plaintiff is operating here without legal representation, I do not think it is a proper case for an adverse inference. The Plaintiff may not have appreciated the import of the question or of her own refusal. In any case, it is not all that likely that the Plaintiff could find a job within 5 weeks, and so her notice period does not deserve to be shortened based on some hypothetical foregone mitigation opportunity.

[16] Counsel for the Defendant requests an Order that I strike from the record the substantial quantity of evidence that repeats materials already struck out by the Order of Justice Glustein. As I told Defendant’s counsel at the hearing, there is no need for the Defendant to respond to allegations that have been struck from the Plaintiff’s pleadings, as matters not pleaded are by definition not in issue in summary judgment. Given my analysis of the motion, it appears to me to be redundant and unnecessary to formally strike the reply affidavit material here as in any case I am only considering issues that properly arise from the pleadings.

[17] The Defendant shall pay the Plaintiff $8,358.15, less the amounts that she has already been paid upon termination. The Plaintiff points out that the record contains her Statement of Earnings and Deductions issued by the Defendant, and those records show that she received $3,511.23. Accordingly, the Defendant shall pay the Plaintiff a total of $4,846.92 as pay in lieu of notice.

[18] The Plaintiff brought a lengthy and complex motion, with voluminous evidence, for what should have been a straightforward and narrow employment case. She has made numerous allegations which are simply baldly asserted by her and are denied by the representatives of the Defendant. None of those far reaching allegations are proved on a balance of probabilities. With the exception of the claim for pay in lieu of notice, all of the Plaintiff’s claims are dismissed.

[19] Although in one sense the Plaintiff has been successful in obtaining damages for having been dismissed without notice, this claim was in effect buried in a large number of unsuccessful claims asserting other types of unproven wrongful conduct. The Defendant has been successful in having all of those other claims dismissed. There are therefore mixed results. Although the Plaintiff and counsel for the Defendants have made submissions with respect to costs, I am not inclined to award costs for or against either party.

[20] Counsel for the Defendant may take out the formal Judgment. The requirement to obtain the Plaintiff’s approval as to form and content of the Judgment is dispensed with.

Morgan J. Date: April 15, 2019