COURT FILE NO.: CV-16-00563736-0000

DATE: 2023-10-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SYLVIA BEAUMONT

Plaintiff (Defendant by Counterclaim)

– and –

DAKOTA BEAUMONT and BRODAN BEAUMONT

Defendants (Plaintiffs by Counterclaim; Claimants in Third Party Claim; Defendants by Counterclaim in Third Party action)

– and –

BART BEAUMONT, SYLVIA BEAUMONT, BOEMAR CANADA INC., BOEMAR INC., BOEMAR SURFACES INC., BOEMAR PRODUCTS INC. and BOEMAR SURFACE SYSTEMS INC.

Third Parties (Bart Beaumont and Boemar Surface Systems Inc. being Claimants by Counterclaim)

Howard Reininger, for the Plaintiff, Defendant by Counterclaim, Third Parties, and Claimants by Counterclaim in the Third Party Action

Louis Century and Geetha Philipupillai, for the Defendants, Plaintiffs by Counterclaim, Third Party Claimants, and Defendants by Counterclaim in the Third Party action)

HEARD: March 13, 14, 15, 16, and 17, 2023

CAVANAGH J.

REASONS FOR JUDGMENT

Introduction

[1] This litigation involves (i) claims made by Bart Beaumont and his wife, Sylvia Beaumont, against Bart Beaumont’s two sons, Brodan Beaumont and Dakota Beaumont, for payment of alleged unpaid loans and other relief, and (ii) the sons’ claims as employees against their father (and against Sylvia Beaumont and certain companies they allegedly operated) for alleged unpaid wages and for punitive damages and other relief.

[2] Bart Beaumont operated businesses and he employed his sons to work for the businesses. The sons gave notice of their resignations in 2016 and they left their employment in early July 2016.

[3] The parties agree that payments of $100,000 from Sylvia Beaumont and $148,000 from Bart Beaumont were made to Brodan Beaumont and Dakota Beaumont.

[4] Sylvia Beaumont and Bart Beaumont allege that the payments were loans pursuant to oral loan agreements. Brodan Beaumont and Dakota Beaumont deny that the payments were loans. They allege that the payments were compensation for earned wages from their work at their father’s companies that were withheld, or “banked”, by their father.

[5] For the following reasons, I conclude that the claims by Sylvia Beaumont and by Bart Beaumont should be dismissed. The claims of Brodan Beaumont and Dakota Beaumont for unpaid wages are allowed. I also award punitive damages in favour of each of Brodan Beaumont and Dakota Beaumont against Bart Beaumont and Boemar Surface Systems Inc.

Background Facts

[6] Each of the individual parties has the same last name. I refer to these individual parties by their first names, for convenience. By doing so, I mean no disrespect.

[7] The parties agreed to some background facts in an agreed statement of facts. These facts are set out below.

Agreed Statement of Facts

[8] Brodan and Dakota are brothers. Bart is their father. Sylvia is Bart’s current wife and Brodan’s and Dakota’s stepmother.

[9] Bart separated from his previous partner, Brodan’s and Dakota’s mother, in 1996, when Brodan and Dakota were young children.

[10] Subsequent to the separation, Bart had no relationship with either Brodan or Dakota until they each turned 18 years old. Brodan and Dakota were raised by their mother in Pickering, Ontario.

[11] Bart runs a number of companies that go by the name Boemar, including the Third Party, Boemar Inc. (“BI”), the Third Party, Boemar Surface Systems Inc. (“BSSI”), and the Third Party, Boemar Products Inc. (“BPI”).

[12] Sylvia is a director of the Third Party, Boemar Canada Inc. (“BCI”).

[13] In 2007, when Dakota was 18, he reached out to his father. In 2009, he began working for his father.

[14] In 2011, when Brodan was 18, he reached out to his father. He began working for his father that same year.

[15] Brodan’s last date of employment was July 11, 2016. Dakota’s last date of employment was July 12, 2016. The parties disagree on the periods of employment between the respective start dates and end dates.

[16] Boemar offices were located at 6185 Tomken Road, Mississauga.

[17] Brodan and Dakota worked the majority of their time off site. They worked at job sites across the country.

[18] Brodan and Dakota were required to submit timesheets to Bart on a weekly basis throughout their employment, always applicable.

[19] Brodan and Dakota were also required to submit before and after photos of jobsites, always applicable.

[20] In December 2013, Brodan and Dakota purchased a condominium unit as joint owners in Toronto, Ontario. The purchase price was $230,000.

[21] In November-December 2013, Sylvia and Bart paid the following amounts to Brodan and Dakota:

a. $100,000 cheque from Sylvia to finance the condominium purchase;

b. Cheques totalling $25,000 from Bart to Brodan;

c. Cheques totalling $20,000 from Bart to Dakota.

[22] In August-December 2014, Bart paid the following amounts to Brodan and Dakota:

a. Cheques totalling $14,000 from Bart to Brodan;

b. Cheques totalling $17,000 from Bart to Dakota.

[23] In January-December 2015, Bart paid the following amounts to Brodan and Dakota:

a. Cheques totalling $36,000 from Bart to Brodan;

b. Cheques totalling $36,000 from Bart to Dakota.

[24] The parties agree that these amounts ($100,000 from Sylvia and $148,000 from Bart) were paid by Sylvia and Bart to Brodan and Dakota. Sylvia and Bart allege that the payments were loans pursuant to an oral loan agreement. Brodan and Dakota deny that the payments were loans and allege that they were compensation for wages from their work at Boemar that were withheld, or “banked”, by Bart.

[25] When I refer to “Boemar”, I am referring to BI or BSSI where the context does not require me to make a distinction.

Analysis

[26] The evidence given by Bart and the evidence given by Brodan and Dakota on the issues raised in these proceedings is starkly contradictory. Determination of these issues requires me to make findings of credibility.

[27] I first address the claims by Sylvia, and by Bart and BSSI, against Brodan and Dakota for judgment for amounts owed to them for repayment of loans they allege were made to Brodan and Dakota.

Loan Claims by Sylvia and by Bart

[28] In her action Sylvia claims a declaration that Brodan and Dakota are in breach of a loan agreement with her. In the alternative, Sylvia seeks a declaration that Brodan and Dakota negligently misrepresented that they would repay monies loaned to them by Sylvia. In the further alternative, Sylvia seeks a declaration that Brodan and Dakota have been unjustly enriched. Sylvia claims damages in the amount of $100,000.

[29] In the counterclaim in the Third Party Action, Bart and BSSI claim repayment of the loan advanced by Bart to Brodan and Dakota in the amount of $148,000 or, in the alternative, damages in this amount for unjust enrichment. In addition, Bart and BSSI claim damages in the amount of $5 million from Brodan and Dakota for breach of their duties to be faithful to their employer and in the amount of $400,000 for business interruption. Bart and BSSI also claim punitive damages of $100,000.

[30] The loan agreement alleged by Sylvia was not in writing. It was oral. Sylvia does not assert that she had any oral or written communications with Brodan or Dakota about the loan agreement. Sylvia’s evidence is that all of the dealings with Brodan and Dakota about this loan were by Bart on her behalf.

[31] Where a party seeks a remedy based on an oral contract, that party has the burden of proving that all essential terms of the contract were agreed upon and that the contract was made. There must be proof of offer, acceptance, and certainty of terms. The Court must assess whether there is objective evidence of the parties intention to contract and the terms of such contract. This may entail a credibility assessment. See Jamshidi v. Dependable Mechanical Systems Inc., 2018 ONSC 7101, at para. 4, citing Schluessel v. Margiotta, 2018 ABQB 615, at para. 11.

What were the arrangements between Brodan and Dakota with Bart and Sylvia with respect to the payment of $100,000 for the purchase of the condominium?

[32] In her affidavit, Sylvia states that she provided her personal cheque for $100,000 (that she borrowed from her line of credit) payable to the lawyers representing Brodan and Dakota for the purpose of the purchase of the condominium unit. Sylvia deposed that the terms and conditions of the loan agreement upon which she relies, and the terms of repayment of the loan, were negotiated by Bart directly with Brodan and Dakota.

[33] When she was cross-examined, Sylvia confirmed that there was no written loan agreement or anything in writing about the loan. Sylvia confirmed that she had no discussions with Brodan or Dakota about the loan. The oral discussions took place between Bart and Brodan and Dakota. Sylvia’s evidence is that she agreed to write a cheque for $100,000, that she considered to be a loan, based on her discussions with Bart.

[34] Sylvia agreed that she never contacted Brodan or Dakota about repayment of the loan or demanded repayment.

[35] Sylvia states in her affidavit that when Brodan and Dakota responded to her action, they alleged for the first time that the money they received from her was not a loan, but money allegedly owed to them by her on an allegation that she was an officer and director of a corporation by which they were employed. On cross-examination, Sylvia agreed that she had never talked to Brodan or Dakota about the loan. Sylvia agreed that she does not know whether Bart told Brodan and Dakota that he was banking their wages.

[36] Sylvia testified that she sold Brodan and Dakota furniture for $10,000 at the same time and she received this payment. She had no discussions with Brodan or Dakota about this payment. She discussed this with Bart. Sylvia denied that she received payment of an additional $10,000 from Brodan and Dakota.

[37] Bart’s evidence is that in order to assist his sons and purchasing the condominium, he made arrangements for a loan to be made by Sylvia to them in the amount of $100,000 and he loaned them an additional $148,000 to assist in the purchase of the condominium and payment of a line of credit obtained from Bank of Montreal by Dakota to assist in the purchase of the property.

[38] Bart deposed in his affidavit that the terms of the loan that he negotiated on behalf of Sylvia were that when Dakota and Brodan repaid the line of credit using money that he loaned to them, they would each obtain a new line of credit which they would use to repay the $100,000 loan made by Sylvia. Bart deposed the prior to the action by Sylvia, Dakota and Brodan did not dispute that the funds advanced to them were loans for which they were responsible for repayment. Bart deposed that in July 2016, Brodan and Dakota advised him that they would never repay the loans made to them by Sylvia and him.

[39] Brodan deposed in his affidavit that in December 2013, he and Dakota purchased the condominium unit which closed on December 16, 2013 for a price of $230,000. He deposed that by the time of this purchase, he and Dakota had each worked thousands of hours of unpaid work for Boemar which, in his case, included around 18 months of full-time unpaid work when one hundred percent of his wages were being “banked”. Brodan deposed that he and Dakota were told by Bart that their unpaid “banked” hours would be used to pay for the purchase of a condominium.

[40] Brodan deposed that he and Dakota received $100,000 from Sylvia which they understood to be payment of their “banked” earnings. Brodan deposed that at the time of the condominium purchase, Bart told him and Dakota that the $100,000 payment would be made by cheque from Sylvia which was delivered by Bart to the real estate lawyers handling the transaction. Brodan states that Bart told him on numerous occasions that the payment from Sylvia was payment of their banked earnings. He deposed that he was not told that the $100,000 payment was a loan that would have to be repaid.

[41] Brodan and Dakota assert in their evidence that they were required to pay $20,000 to Sylvia to obtain this $100,000 advance. One payment of $10,000 was in cash for used furniture. The other $10,000 was also in cash. Therefore, Brodan deposed, the net payment from Sylvia was $80,000. Brodan’s evidence is that he and Dakota each withdrew $10,000 from their bank accounts and he included in his affidavit a copy of bank records showing withdrawals totalling $10,000.

[42] Brodan deposed that in November-December 2013, Bart issued a series of cheques to Dakota and him to be used in connection with the condominium purchase. These cheques totalled $45,000, made up of $20,000 for Dakota and $25,000 for him. Brodan states that these funds were used to fund the condominium purchase including the down payment and the $20,000 in cash paid to Sylvia.

[43] Dakota’s affidavit evidence is consistent with the affidavit evidence provided by Brodan. Dakota deposed that he had Brodan received $100,000 from Sylvia and they were required to pay $20,000 to her to obtain this payment. Dakota deposed that around the time of the condominium purchase, Bart told them that the $100,000 payment would be made by cheque from Sylvia which was delivered to the real estate lawyers by Bart. Dakota deposed that he does not know why the cheque was issued in Sylvia’s name as opposed to in Bart’s name or in the name of one of the Boemar companies. He deposed that Bart said something to the effect that he wanted to include Sylvia in the process so she wouldn’t feel left out.

[44] Dakota deposed that he and Brodan withdrew $10,000 from their respective bank accounts to make the $20,000 payment to Sylvia. Dakota provided bank statements showing withdrawals for amounts totalling $10,000 that, he states, were used to make the payment to Sylvia. Dakota agrees that one payment of $10,000 was for used furniture.

[45] With respect to Sylvia’s claim for repayment of a $10,000 loan, she agrees that the terms of this advance were negotiated by Bart with Brodan and Dakota. Bart was her agent in respect of this transaction. Sylvia is bound by the acts of Bart as her agent when he acted within the scope of his ordinary or apparent authority. See Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, 1996 149 (SCC), at para. 101. Sylvia’s subjective understanding or belief that the payment was a loan is irrelevant.

[46] The evidence given by Bart, and by Brodan and Dakota, in their affidavits is directly in conflict. Brodan and Dakota depose that the $100,000 advance (which they say was a net amount of $80,000) was a payment of their “banked” earnings from work for Boemar. They deny that the advance was a loan.

[47] Bart, on the other hand, denies that there was any agreement with Dakota or Brodan that any earnings from their work for Boemar would be withheld, or banked, to be paid later when they needed the money. He deposed that Brodan and Dakota were paid by cheque, or through provision of personal benefits, for all of their work for Boemar.

[48] I have summarized the evidence with respect to the $100,000 payment. In order to decide whether Sylvia has shown that the payment was a loan, I need to consider additional evidence from Bart and his sons in relation to other payments made by Bart to them and in respect of the terms of employment that were agreed upon for each of Dakota and Brodan.

What were the arrangements between Bart and Brodan and Dakota with respect to payments from Bart to them totalling $148,000?

[49] Bart’s evidence is that he loaned Brodan and Dakota a total amount of $148,000 to assist them to make a down payment for the purchase of the condominium unit, to pay for other closing costs, and to enable them to pay a line of credit obtained by Dakota from Bank of Montreal. Bart’s evidence is that he agreed with Dakota and Brodan that when Dakota repaid his line of credit balance with Bank of Montreal, which would be made from the $148,000 loan he made to them, they would each obtain a new line of credit which would then be used to repay the $100,000 owed to Sylvia. Bart’s evidence is that the loans to Dakota totalling $73,000 and the loans to Brodan totalling $75,000 were made from his personal resources and not from BI or BSSI.

[50] Brodan’s and Dakota’s evidence is that the payments by Bart were for “banked” wages based on hours actually worked for Boemar for which they had not been paid.

[51] In order for me to make findings about the terms of the $100,000 advance made by Sylvia using funds drawn on her line of credit, and the payments totalling $148,000 made by Bart, I need to consider the evidence about the agreement that Brodan and Dakota allege they made with Bart that compensation for their work for Boemar for which they did not receive payment would be “banked” by Bart and paid to them later, when the money was needed.

Did Bart make an agreement with Brodan and Dakota that hours they worked for Boemar would be “banked” and they would be paid for these banked hours?

[52] A central issue in these proceedings is whether Bart made an agreement with each of Brodan and with Dakota when they first started to work for Boemar that hours they worked for which they were not paid by cheque would be “banked” by Bart and that each of Brodan and Dakota would be paid for these “banked hours”, at Bart’s discretion, when they needed the money.

[53] Brodan deposed in his first affidavit that even though he worked long hours including most weekends, he was not paid based on his actual hours of work. Instead, the majority of his earnings were “banked” by Bart in what Bart called the “Boemar Bank”. In his affidavit, Brodan deposed that the idea of “Boemar Bank” was explained to him by Bart early on during his employment at Boemar. Brodan explains this arrangement in his affidavit, which, he deposed, also applied to Dakota:

a. Rather than paying Brodan his wages, Bart would withhold or “bank” most of his wages into something he called the “Boemar Bank”;

b. Bart said it was in Brodan’s interest for him to “manage” their money;

c. During some periods, Bart provided him with a minimal amount of money to live on, while “banking” the majority of their earnings;

d. During other periods, Bart provided him with no wages, on the understanding that 100% of his earnings were being “banked” in the “Boemar Bank”;

e. The purpose of this arrangement was to enable Bart and Dakota to work enough hours and bank enough earnings to purchase a condo;

f. Brodan trusted his father and believed that Bart was banking his earnings and managing his money and acting in his best interest.

[54] Dakota deposed that he worked long hours including most weekends but he was not paid based on his actual hours of work. Instead, the majority of his earnings were “banked” by Bart in what Bart called the “Boemar Bank”. Dakota explains in his affidavit the idea of the “Boemar Bank”, as explained to him by Bart, which is consistent with the description given by Brodan.

[55] Bart disputes this evidence. In his Defence and Counterclaim in the Third Party action, Bart pleads that “The ‘Boemar Bank’ is a fabrication on the part of Dakota and Brodan designed to avoid repaying the loans to Sylvia and Bart”. Bart maintained this position in his evidence at trial.

[56] In his second affidavit, Bart deposed that when Brodan worked as an independent contractor for BI, he was paid on an hourly basis. Bart deposed that at no time did he tell Brodan that his wages were being banked or that any hours of his work were being banked. He deposed that Brodan was paid for every hour he worked as an independent contractor. Bart states that when Brodan became a full time employee of BSSI, he was paid every two weeks regardless of the hours he worked.

[57] In his second affidavit, Bart addresses the evidence of Brodan and Dakota about “banked hours”. He deposed that “[i]t was only after Brodan Beaumont became a full-time employee that I ever discussed with him the concept of “banked hours” and explained to him that he could choose to be paid for overtime hours worked or take time off in lieu of being paid for the overtime hours worked. Bart’s deposed in his affidavit that, as with Brodan, there was no conversation with Dakota that any of his hours were “being banked” until after he became a full-time employee of BSSI beginning in October 2013.

[58] Bart testified that Brodan was paid for overtime hours when he worked more than 44 hours per week at “time and a half” and this was called “banked hours”. He testified that the banked hours were always taken as vacation or as payment of personal expenses. The overtime hours were not paid by cheque.

Timesheets and other employment records

[59] In these proceedings, Brodan and Dakota produced and put into evidence through their affidavit’s timesheets recording hours worked for Boemar. Their evidence is that they were only able to locate and produce some, but not all, timesheets they completed and submitted to Bart and Boemar.

[60] Bart and Boemar did not produce any timesheets for Brodan and Dakota.

[61] Bart testified that Brodan and Dakota were required to submit timesheets to him for every week they worked. He testified that the timesheets were either delivered to the office in person or sent by email. Bart filed the timesheets as delivered or, if they were sent by email, after they were printed. He emailed the timesheets he received by email to other employees of Boemar. He prepared spreadsheets on which he entered the hours worked from the timesheets.

[62] Bart testified that he and his companies do not have timesheets or other records showing the hours worked by Brodan and Dakota because the timesheets were shredded after they were no longer legally required to be kept. He testified that the shredding of documents that are no longer required was done in the winter months, after the Christmas holidays, at the time he did tax returns. Bart testified that he would always keep timesheets going back six months to 1 ½ years. Bart testified that emails sending timesheets were also deleted when they were not required to be legally kept.

[63] Bart was asked whether there were no time sheets for any given period of time or whether he shredded the timesheets, and he responded that he has no idea.

[64] The Employment Standards Act, 2000 (“ESA”) includes provisions in relation to an employer’s record keeping obligations. Section 15(1) of the ESA provides that an employer is required to record certain information with respect to each employee and retain such records for periods specified in s. 15(5). An employer is required to record and retain information of the date on which an employee began his or her employment for three years after the employee ceased to be employed. An employer is required to record and retain information of the number of hours the employee worked in each day and each week for three years after the day or week to which the information relates. An employer is required to record and retain information contained in each written statement given to the employee under s. 12(1), s. 12.1 and clause 36(3)(b) for three years after the day the information was given to the employee. Section 12(1) requires the employer to give a written statement of wages for pay periods on or before an employee’s pay day.

[65] This action was commenced by a Statement of Claim issued on November 7, 2016. Brodan and Dakota’s Statement of Defence and Counterclaim is dated December 13, 2016. The Third Party Claim was issued on December 20, 2016. Brodan’s last day of work for Boemar was July 11, 2016. Dakota’s last day of work for Boemar was July 12, 2016. This shows that by mid-December 2016, Bart knew that there was an issue in the litigation about whether Brodan and Dakota had been paid for hours they worked at Boemar.

[66] Bart, and the Boemar parties, were required to preserve relevant documents and produce them in this litigation. By mid-December 2016, Boemar was required by the ESA to have retained certain employment records for Dakota and Brodan for a period going back 2 ½ years. Yet, in this litigation, Bart and the Boemar companies did not produce any hard copies of timesheets, emails of timesheets sent to Bart, emails of timesheets sent by Bart to secretarial staff at Boemar, spreadsheet summaries of timesheets, wage statements, or other records relating to the employment of Brodan and Dakota.

[67] I address Bart’s evidence with respect to shredding or deletion of employment records when I address the claims by Brodan and Dakota for punitive damages.

When did Brodan work full time for Boemar?

[68] Brodan deposed that he worked for Boemar continuously for approximately five years, from August 2011 until July 2016. He divides this five-year period into four periods:

a. August 2011 to May 2012 - In this period, Bart provided some pay cheques, with some of his earnings being banked. Brodan worked some weeks without any pay. There was evidence at trial of the total amount of payments made by BI to Brodan or Dakota. This amount is approximately $18,000, and the last payment was made in May 2012.

b. June 2012 to October 2013 - In this period, virtually all of Brodan’s earnings were banked. He received no pay for the majority of his work during this time.

c. October 2013 to December 2015 - In this period, Brodan was put on “payroll” and received small bi-weekly cheques for a portion of his earnings. Since he worked long hours and weekends which were unpaid, he continued to bank significant earnings. During this period, he also received some lump-sum payments of prior banked earnings.

d. December 2015 to July 2016 - In this period, Brodan continued to receive small bi-weekly checks and continued to bank earnings.

[69] In his affidavit, Brodan describes his work during each of these four periods of time and provides estimates of his hours of work.

[70] Brodan deposed that he completed timesheets at Boemar documenting his daily hours of work and he also completed weekly timesheet for himself and other members of a job site when he was the supervisor for the job site. For jobs in the Greater Toronto Area, he would typically hand timesheets in person to Bart and his secretary, Sonia Moore. He and Dakota left their timesheets at the Boemar office. For out-of-town jobs, they would often email completed timesheets to Bart and Sonia by photographing them and then attaching the photographs to emails. They would submit the hard copies to the office later, when they returned to Toronto. If they knew they were returning to Toronto, they would hold onto the timesheets and hand them in person rather than emailing. Brodan states that, as a result, he was able to find many timesheets in his email “outbox” going back to 2012-2013. He states that he only has a portion of his timesheets. These are appended as exhibits to his affidavit.

[71] Brodan deposed that the timesheets show that he worked extremely long hours between June 2012 and October 2013, a period when Bart says he was not working. Brodan deposed that his average weekly hours based on the available timesheets between June 2012 and October 2013 is 72.5 hours per week, or 44 regular hours and 25.5 overtime hours per week. With the exception of a vacation in Banff, he worked for the entire period from June 2012 to October 2013, including periods not covered by the timesheets.

[72] Brodan deposed that the hours shown in his timesheets also did not take into account many additional hours he worked that were not recorded on the timesheets including (a) when he was the job site supervisor on the road, he spent time in the evenings after work hours completing timesheets and emailing them to Bart; (b) he spent time emailing “before and after” photographs of jobsites to Bart which, depending on the Internet connection, could take hours. If this was done in the evening, he typically did not record the worktime in his timesheets; (c) at various times, Bart instructed them to complete tasks and not record the hours in their timesheets.

[73] Brodan states that the long hours shown in his timesheets are consistent with him working more than 70 hours per week, for many weeks in a row, despite receiving no wages. He states that he did this because he believed that Bart was “banking” his earnings to be used for the purchase of a condominium.

[74] Bart deposed in an affidavit sworn in July 2017 that Brodan was not employed by him or any Boemar company between June 2012 and October 2013. Bart deposed that in or about October 2013, Brodan approached him for a job at BSSI. Bart repeated these statements in September 2017 in his pleading in response to the Third Party Claim. Bart later admitted on his examination for discovery on September 11, 2019 and in his subsequent affidavit sworn May 4, 2022 that his statement that Brodan did not work for any Boemar corporation from June 2012 to October 2012 was untrue. He said it was an error on his part that he was able to correct upon receipt of Brodan’s productions. He did so after he received timesheets from Brodan during this period of time in the course of this litigation.

[75] I take this evidence from Bart into consideration when I assess Bart’s credibility as a witness. Bart provided evidence to the Court in an affidavit that unequivocally states that Brodan was not employed by Boemar between June 2012 and October 2013. The fact that Bart later admitted that this evidence was untrue when he was confronted with timesheets from Brodan during this period does not clear up the problem of untrue evidence having been initially tendered through an affidavit.

[76] Bart would have remembered that Brodan was working for BSSI during this period. Brodan’s timesheets show that he was working an average of 72.5 hours per week. Bart does not explain why I should accept that his misstatement was an innocent error. I find that Bart knew that this evidence was untrue when he swore his affidavit in July 2017, and that he was forced to withdraw this factual assertion after receiving Brodan’s timesheets.

[77] Although Bart conceded that Brodan was employed by Boemar during the period from June 2012 to October 2013, he does not explain how Brodan was paid for his work during this period of time. No records from Boemar (or from Bart) showing such payments of wages were produced. Brodan’s evidence is that his compensation during this period of time was withheld by Bart and “banked” in the Boemar Bank. Notwithstanding his admission that Brodan was employed with Boemar during this period of time, Bart maintained his position at trial that Brodan had been paid for all of the hours he worked.

[78] When he was cross-examined, Bart testified that he cannot remember when Brodan and Dakota were or were not working for the Boemar companies. He testified that he relies completely on timesheets that were produced in this litigation for him to determine whether Brodan and Dakota were or were not working.

[79] Bart agreed that Boemar made per diem payments to Brodan and Dakota for their meals and expenses when they were working at jobs out of town. Brodan received per diem payments for days in many months from June 2014 to April 2016 where he was unable to locate time sheets. Dakota received per diem amounts for many days during months from June 2014 to May 2016 where he was unable to locate and produce timesheets. This evidence shows that Brodan and Dakota were working for Boemar when the per diem payments were made. Nevertheless, Bart continued to insist at trial that they only worked on days where timesheets were provided. In the face of this, and other, evidence showing that Brodan and Dakota worked for Boemar during periods of time not covered by timesheets, Bart’s evidence is simply not credible.

[80] Bart’s evidence that he has no recollection about when Brodan or Dakota were working for his companies is not credible. Bart was able to recall many details of the employment arrangements he had with his sons, including times when Dakota’s working arrangements were terminated. BSSI is a small company with relatively few employees. Brodan and Dakota are Bart’s sons. It is very convenient for Bart to profess that he must rely on timesheets produced in this litigation to justify his position about when Brodan and Dakota were working. I find that Bart was being untruthful when he testified that he does not recall, other than based on timesheets produced, when Brodan and Dakota were working.

[81] I accept Brodan’s evidence given in his affidavits about the time he was working for the Boemar entities. Brodan recalled when he was working, and his evidence was not undermined on cross-examination. I accept Brodan’s evidence that the timesheets he produced are only some of the time sheets he completed when he worked for Boemar. Brodan explained why he does not have all of the time sheets, and his explanation makes sense.

When did Dakota work full time for Boemar?

[82] Dakota deposed that he worked for Boemar for approximately seven years from approximately July 2009 until July 2016, (with interruptions in the first three years of work). Dakota divides this seven-year period into four periods:

a. July 2009 to January 2012 - In this period, Bart provided some pay cheques, with some of his earnings being banked. Dakota worked some stretches without any pay. He was also fired in two occasions, then later rehired. He was fired for the third time in January 2012, then rehired around June 2012.

b. June 2012 to July 2013 - In this period, Dakota worked full time for Boemar and virtually all of Dakota’s earnings were banked.

c. July 2013 to December 2015 - In this period, Dakota was put on “payroll” and received small biweekly cheques for a portion of his earnings. Since he worked long hours and weekends which are unpaid, he continued to bank significant earnings. During this period, he also received payments of prior banked earnings.

d. December 2015 to July 2016 - In this period, he continued to receive small biweekly cheques and continued to bank earnings.

[83] Dakota describes in his affidavit each of these periods in more detail and provides estimates of his hours of work.

[84] Dakota deposed that as part of its work at Boemar, he often took photos for various reasons. He appends to his affidavit copies of photos that appear to show that he was working on various dates during the period when Bart said he was not working for him or any Boemar company. Dakota deposed that he worked for Boemar for the entire period from July 2012 to July 2013. Brodan confirmed that Dakota was working for Boemar during this period of time.

[85] Dakota appends to his affidavit copies of credit card statements for July 2012 to July 2013 which, he says, document the purchases he made in various locations across the country while on work trips for Boemar. Dakota states that he included these credit card statements to challenge Bart’s claim that he was not working for Boemar in July 2012 to July 2013.

[86] Dakota tendered into evidence emails from Sonia Moore, a Boemar employee, in April 2013 to July 2013. These emails show that Dakota was working for Boemar during this period of time.

[87] Dakota states that he is no longer in possession of timesheets from July 2013 or earlier. He says that these timesheets were submitted to Bart, and he saw no reason to preserve them at the time. With respect to the timesheets that he emailed to Bart for out-of-town jobs, Dakota states he no longer has access to his old emails and his old email account which were auto erased after years of inactivity. Dakota states that he reviewed Brodan’s timesheets from 2012-2013 and that he worked similarly long hours throughout July 2012 to July 2013.

[88] Dakota attached as exhibits to his affidavit copies of available timesheets for 2013, 2014, 2015, and 2016. He provides an analysis of these timesheets which, together with his recollection, supports his estimate that he worked an average of at least 64 hours per week during the period October 2013 to December 2015 (44 standard hours and 20 overtime hours per week). Dakota deposed that he believes this is a low-end estimate because the recorded hours in his timesheets did not include all hours worked. Dakota deposed that Bart withheld his biweekly pay on numerous occasions. He states that Bart told him and Brodan that their biweekly pay represented only a small portion of their actual earnings and that the majority of the earnings each week were being “banked” in the “Boemar Bank” based on the hour submitted in their timesheets.

[89] Dakota’s evidence is that based on his available timesheets from 2013, 2014, 2015 and 2016, and his best recollection, he estimates that he worked in excess of 60 or 70 hours per week throughout July 2012 to July 2013 (with the exception of a three-week Banff vacation). He deposed that much of this period was spent out-of-town working for Boemar jobs across the country. During this period, he received no regular wage, and his earnings were banked in the “Boemar Bank”.

[90] Bart’s affidavit evidence is that Dakota began working as an independent contractor for BI in 2009 and was paid on an hourly basis. Bart’s evidence is that Dakota’s work as an independent contractor was not continuous and there were substantial gaps during that time period when he was not working for BI at all because he was terminated several times during that time period. Bart’s evidence is that Dakota was terminated for a third time in September 2011 and, thereafter, he did not begin to work for any Boemar corporation until July 2013 when he became a full-time employee of BSSI. Bart disputes Dakota’s evidence that he again began working full time for BI in July 2012.

[91] Bart testified that he does not recall when someone was or was not working and that he relied on timesheets to reach his conclusion.

[92] I accept Dakota’s evidence that he worked for Boemar during the periods he identified in his affidavit. With respect to the period from June 2012 to July 2013, I accept Dakota’s evidence that he worked full time for Boemar during this period of time (with the exception of the Banff vacation – from December 23, 2012 to January 13, 2013). The evidence about the Banff vacation (when Dakota and Brodan were out west on a job site) supports Dakota’s evidence that he was working for Boemar in this period.

[93] Dakota’s evidence is supported by photographs he took while at job sites out of Ontario. Dakota explained the context of these photos in his evidence. He was cross-examined about these photos and his evidence withstood cross-examination. I accept his evidence in respect of the photos. Dakota tendered into evidence credit card statements during this year. These records show that Dakota was working for Boemar during this period of time. I accept Dakota’s evidence that the credit card transactions are in relation to his employment with Boemar.

[94] Bart did not offer an explanation for these documents if Dakota was not working for Boemar. He simply relies on timesheets as the only evidence he will accept to show when Brodan and Dakota were working for Boemar.

[95] Bart’s reliance on only timesheets to support his conclusions about when Brodan and Dakota were working was not disclosed in his affidavits and came up during his cross-examination. Bart would have known from his memory whether Dakota was working for Boemar during the period from June 2012 to July 2013. I reject Bart’s evidence that he does not recall whether Dakota was working during this year. This evidence is simply not credible.

[96] I find that Dakota was working for Boemar as he explains in his affidavit and, in particular, that he was working full time during the period from July 2012 to July 2013. I accept Dakota’s evidence about his timesheets and find that the timesheets found and produced by Dakota in this litigation are only some of the time sheets that Dakota completed and submitted while he was working for Boemar.

Recordings of telephone conversations

[97] Each of Brodan and Dakota gave evidence that in their final weeks of work in June-July 2016 they recorded conversations with Bart because they realized that Bart would often say different things to each of them and that he was sometimes untruthful. They wanted these recordings to protect themselves. In preparation for trial, they obtained professional transcripts of the recordings.

[98] I ruled that the recordings are admissible. The recordings were put into evidence as were the transcripts (as an aid). The parties do not dispute the accuracy of the transcripts.

[99] Bart agreed that he has listened to these recordings and that he recognizes his voice on the recordings.

(a) July 10, 2016 Recording

[100] A recording was made on July 10, 2016 of a telephone conversation between Bart and Dakota, portions of which were played during the cross-examination of Bart.

[101] In this conversation, Dakota says that he has not been paid since June 10 and asks: “how come?”. Bart asks whether Brodan told him, and Dakota responds that Brodan did not tell him anything. The conversation continues:

BART: No, because you have enough saved up in there. I was just banking the rest so you could save up enough to get out of your situation.

DAKOTA: What do you mean?

BART: Well, you remember at the beginning when I would just pay you a little bit, pay you a little bit, and I would bank it all for you, and then I’d give you large deposit cheques –

DAKOTA: Like, how you’re paying me like 800 or whatever, plus the per diem or something like that?

BART: Right. But now you’ve got -- that’s why I keep asking you, how much do you have saved up, how much do you have saved up. So when you said you had five grand or whatever, like I told Brodan, then I said I’m going to bank it up so that you guys -- you could get paid off quicker.

DAKOTA: So – so what does that mean? So I don’t understand. I’m – I’m kind of confused.

BART: Okay. Okay. Remember to be -- so right now, how much do you have in your account right now?

DAKOTA: Around four.

BART: Okay. So you get money, and then I would stop giving you cheques, and then when you needed money, when you got below a thousand dollars, I would give you another bonus cheque to minimize your taxes so I can get it done quicker for you.

DAKOTA: Okay. But –

BART: Every time I put it on a payroll, you got to pay taxes.

DAKOTA: Yeah, like how you are giving us like – the $800 or whatever? So what’s – what’s going on now? So when – like, so when we’re done here on the 15^th, like, what -- what happens after that, is what I’m asking like…

BART: Oh, well, then we got to sit down and -- and I got my accountant doing all the figures right now to show you if you leave now this is what it’s going to cost you and this is what your savings is, and I’m going to have all the paperwork ready for you.

DAKOTA: Okay. But as like – so I still – like -- I’m not getting paid as I’m working? Like, the -- so I don’t understand.

BART: No, you’re --- Dakota, of course you’re getting paid as you’re working. It goes into your bank.

DAKOTA: Into my what? What bank?

BART: Okay. Your tax free. You know when you were sitting there at the beginning and I was saving money for you? You’re still getting –

DAKOTA: Yeah, into the Boemar Bank thing you’re talking about.

BART: It’s – it’s the exact same thing as you were doing before.

DAKOTA: Yeah, but except this time I don’t get paid. Like, before I was getting paid, but the extra was going into the Boemar Bank.

BART: No, no. Dakota, that was only when – when -- before that, before you bought your unit, everything was going into the bank, other than enough for you to live on. Once you got it paid, then we decided to change it, that’s the difference.

DAKOTA: That we weren’t getting pay cheques before?

BART: It’s exactly how it was before. Dakota before you bought your unit, do you remember you were saving up as much as you could so you could get a deposit down to buy your condo?

DAKOTA: Okay. So then we banked money and then –

BART: And that’s what you paid –

DAKOTA: The money that you gift us.

BART: Now, you did the same thing -- the same thing you did before, right, now you’re doing it because you’re paid -- you’re paid off. So now you got to save it up so that you can pay it off again, right, so you can separate. But since then, you’ve decided to make a change. So I have to -- I said everything is submitted with my accountant. My accountant is going over all the figures, going to give me the number sometime next week, and then you make your decision. Well, you’ve made your decision, then you can make your decision on how you’re going to handle it moving forward, that’s all.

DAKOTA: Okay. So the whole time, like, we paid off our place since like December. But since January till like June 10, I was getting pay cheques of like whatever-- whatever they were.

BART: Absolutely. But Brodan hadn’t paid it off. He still owed me money, so I just let it keep running until he had paid me off.

DAKOTA: Okay. I – well, no, I don’t really understand. I just – okay. It doesn’t make sense to me really –

BART: Well, it –

DAKOTA: -- like that somebody is working and they’re not getting paid. That doesn’t make sense to me at all.

BART: Well – well you are getting – Okay. Dakota, you worked for four years with me, and you saved up all the money. All you did was get enough money for living expenses because I had to control your money so you could get a deposit together, right.

DAKOTA: Yeah, That’s like –

BART: Once you was paid –

DAKOTA: -- when we were working and then you said, like, yeah, I’ll -- gift to this money, so you don’t have to get -- you know what I mean? Like, I’ll give you the money –

BART: That’s right.

DAKOTA: -- so you guys can buy your condo.

BART: That’s exactly right, based on you fulfilling your obligation. If you didn’t fulfil your obligation, that it would be treated –

DAKOTA: But there was –

BART: -- no different than breaking a mortgage.

DAKOTA: There was – okay. But like you -- you said like, okay, we’re going to gift you this so you can pay off your condo, and once your condo is paid off, your -- like this condo or whatever, the one that we’re sharing –

BART: Then you save –

DAKOTA: -- you know, you –

BART: You do the exact same thing -- let me finish. Then you do the exact same thing as you did at the beginning, you save up enough money so that you could move into your own condos, and be independent, or your own home, whatever it was.

DAKOTA: Okay. So these –

BART: But things changed.

[102] When he was cross-examined and this part of the conversation was put to him as an admission that the evidence of Brodan and Dakota about the “banked” earnings was true, Bart responded that counsel for Brodan and Dakota may have misinterpreted these words because counsel does not know what was going on. Bart denied that his words meant that Dakota was saving earned money, through it being withheld by Bart and kept in the “Boemar Bank”, to be given to him when needed. He responded that the point he was making was that Dakota was only earning enough to pay for living expenses and that he was not earning enough to save any money. Bart denied that his words in this conversation show that he knew that Dakota was working full time during the period July 2012 to July 2013 and that Bart was banking his wages.

[103] Bart repeated on cross-examination that the “Boemar Bank” was fabricated by Brodan and Dakota to avoid repaying their loan, and testified that when the July 10, 2016 conversation took place, Dakota did not know what a “Boemar Bank” was, and neither did he.

(b) June 27, 2016 conversation

[104] A recording of a conversation between Bart and Brodan on June 27, 2016 was put into evidence. The following passage is from this recorded conversation:

BRODAN: Okay. So, what do I have banked in my Boemar bank right now?

BART: I haven’t - I’m waiting for my accountant to get back to me, because he’s got to look all the way back from when you started in, what was it, 2012 or something.

BRODAN: Okay. But what do I have - what do I have banked right now? You need to ask him what I worked from 2012 to find out what I have banked in Boemar bank right now?

BART: Oh, yeah, absolutely, because it goes from year-to-year to year-to-year. Because I got to make sure I don’t get in any shit, right.

[105] On cross-examination, Bart was asked about this passage from this conversation. He agreed that the words were his. He stood by his evidence that the Boemar Bank was a concept fabricated by Brodan and Dakota. On cross-examination, after listening to this recorded passage, Bart confirmed his evidence that the Boemar Bank is a complete fiction created by Dakota and Brodan to avoid repaying loans.

[106] Bart was re-examined about his evidence on cross-examination about the term “banked hours”. He answered that ‘banked hours” is a term that describes that the government allows employers to permit employees to “bank” hours in excess of 44 hours per week so that, for example, a seasonal worker can ask that overtime hours be “banked” so that the employee receives payments when they are not working. Bart testified that the banked amount in excess of 44 hours per week would be paid at time and one-half of the employee’s hourly wage.

[107] I consider Bart’s evidence about the recorded telephone conversations with Dakota and with Brodan as part of my assessment of Bart’s credibility as a witness in these proceedings having regard to the evidence as a whole.

[108] I reject Bart’s evidence that the term “Boemar Bank” was fabricated by Dakota and Brodan, long after the fact, to avoid repayment of debts. In the recording of his conversation with Dakota, Bart introduces the term “bank” in relation to Dakota’s hours of work, when he says that “at the beginning”, he would just pay Dakota a little bit, and then he would “bank it all for you ...”. Bart says that he stopped giving Dakota cheques and, when he needed money, Bart would give him a “bonus cheque”. Bart tells Dakota that before he bought his “unit” (which I find is clearly a reference to the condominium unit purchased by Dakota and Brodan in December 2013) everything was going into “the bank”, other than enough for Dakota to live on. Bart explains that Dakota is not receiving cheques for his work in June and July 2016 because the money is being banked, like it was “at the beginning”. Bart states that Dakota worked for him for four years and all he received was enough money for living expenses “because I had to control your money so you could get a deposit together, right”.

[109] Bart’s statements in this conversation with Dakoda make it clear that he knows what the term “Boemar Bank” means, and that it means that he was not paying Dakota for hours he worked, other than enough to live on, and that Dakota’s compensation for his work was being withheld, or “banked”, by Bart, to be paid only at his discretion, when it was needed. Bart’s explanation of how Dakota’s compensation for his worked hours was “banked” corresponds closely with how Dakota and Brodan describe the arrangement in their affidavits.

[110] Bart offered no credible explanation in his affidavits or in his viva voce evidence at trial for how the words he used in this conversation could mean anything else. When he was cross-examined, he did not offer any explanation, but insisted that his words were being misconstrued, and he declared that he stood by his evidence that the agreement with him in relation to the “Boemar Bank”, as explained by Brodan and Dakota in their affidavits, was a fabrication.

[111] The recorded conversation with Brodan shows that Bart was very familiar with the term “Boemar Bank”. When this term was first raised by Brodan, Bart did not question the use of this term or convey that he did not understand its meaning. He responded to Brodan’s questions about how much he had banked in the Boemar Bank by saying that “it goes from year to year to year” and that his accountant was calculating the amount. Bart’s words in this conversation show his understanding that the “banked” amount of unpaid compensation for hours Brodan worked from 2012 to June 2016 is owing to Brodan.

[112] The evidence given by both Brodan and Dakota was that there was no loan agreement, either with Sylvia or with Bart. Their evidence was that the $100,000 payment (they say a net payment of $80,000) and the payments from Bart totalling $148,000 were represented to them by Bart as compensation for many hours of unpaid labour each performed for Boemar. They answered questions about these payments responsively and in considerable detail. The evidence of Brodan and Dakota in this respect was not shaken on cross-examination.

[113] I accept the evidence given by Brodan and Dakota that they made an agreement with Bart that their compensation for hours worked for Boemar, other than payments made at Bart’s discretion, would be withheld, or “banked”, by Bart, to be paid to them later. I accept the evidence given by Brodan and Dakota that during some periods, they worked full-time for Boemar and received no compensation because Bart was “banking” their compensation to be paid to them later.

[114] I accept the evidence given by Brodan and Dakota that when they purchased the condominium unit in December 2013, Bart told them that the payment of $100,000 made to the real estate lawyers working on the condominium purchase was money owed to them from their “banked” hours of work. I reject Bart’s evidence that this advance was a loan. I accept the evidence of Brodan and Dakota that this advance was not made pursuant to an oral loan agreement made by Bart on behalf of Sylvia as a lender. I find that Sylvia has failed to prove that, through Bart, she made a loan agreement with Brodan and Dakota.

[115] I reject Bart’s evidence that Boemar paid Brodan and Dakota for all of the hours they worked. This evidence is contradicted by Bart’s statements in his recorded conversation with Dakota, and in his conversation with Brodan. Bart also agreed that he does not know when Dakota or Brodan were working for Boemar, other than based on timesheets they located and produced. I accept the evidence of Brodan and Dakota that the timesheets they located and produced are not all timesheets they submitted to Bart and Boemar for their work for Boemar.

[116] I find that Bart was untruthful in his evidence when he maintained, after hearing the recorded conversations and reviewing transcripts, that he does not know what the term “Boemar Bank” means, and that his sons fabricated their evidence about Boemar Bank and banked compensation for hours worked to avoid repaying loans.

[117] Based on these findings, I conclude that Sylvia has failed to prove that, through Bart, she made a loan agreement with Brodan and Dakota in relation to the $100,000 payment she made to the lawyers who acted on the purchase of the condominium unit.

[118] Based on these findings, I conclude that Bart has failed to prove that he made an agreement with Brodan or Dakota that payments he made to them totalling $148,000 were loans.

Third Party Claim by Brodan and Dakota

[119] In their Third Party Claim, Brodan and Dakota make claims against Bart, Sylvia, and various Boemar companies including Boemar Canada Inc., a company that, according to the evidence of Bart and Sylvia, is operated by Sylvia and is unrelated to the businesses of other Boemar companies operated by Bart.

[120] In their Third Party Claim, Brodan and Dakota claim (a) damages for breach of contract, breach of trust, unjust enrichment and/or civil conspiracy; (b) damages for the intentional and/or negligent infliction of emotional distress and mental suffering; (c) bad faith, exemplary and punitive damages; and (d) an accounting of hours worked and wages and benefits paid to them.

[121] The claims made by Brodan and Dakota are for breach of their contracts of employment with Boemar made with Bart as Boemar’s authorized representative.

[122] In Wallace v. United Grain Growers Ltd., 1997 332, at paras. 91-93, the Supreme Court of Canada held:

91 The contract of employment has many characteristics that set it apart from the ordinary commercial contract. Some of the views on the subject that have already been approved of in previous decisions of this Court (See e.g. Machtinger, supra) bear repeating. As K. Swinton noted in “Contract Law and the Employment Relationship: The Proper Forum for Reform”, in B.J. Reiter and J. Swan eds., Studies in Contract Law (1980), 357, at p. 363:

... the terms of the employment contract rarely result from an exercise of free bargaining power in the way that the paradigm commercial exchange between two traders does. Individual employees on the whole lack both the bargaining power and the information necessary to achieve more favourable contract provisions than those offered by the employer, particularly with regard to tenure.

92 This power imbalance is not limited to the employment contract itself. Rather, it informs virtually all facets of the employment relationship. In Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038, Dickson C.J., writing for the majority of the Court, had occasion to comment on the nature of this relationship. At pp. 1051-52 he quoted with approval from P. Davies and M. Freedland, Kahn-Freund’s Labour and the Law (3^rd ed. 1983), at p. 18:

[T]he relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination. ...

93 This unequal balance of power led the majority of the Court in Slaight Communications, supra, to describe employees as a vulnerable group in society: see p. 1051. The vulnerability of employees is underscored by the level of importance to which our society attaches to employment. ...

[123] I take these legal principles into consideration when I address Brodan’s and Dakota’s claims.

What is the amount of Brodan’s claim for unpaid wages?

[124] Brodan claims unpaid wages for the period from December 10, 2015 to May 2016 and for June-July 11, 2016.

[125] This claim begins when the last cheque from Bart to Dakota or Brodan was given, which was December 10, 2015. Brodan’s claim is for withheld and unpaid wages owed to him beginning December 10, 2015 for earned wages in excess of the base wage of $480.

[126] The claim of each of Brodan and Dakota is based on an hourly wage of $19. Bart told Dakota and Brodan that this was their hourly wage for this period of time. I accept that this hourly wage is the best evidence of the hourly wage that should be used for the calculation of unpaid wages.

[127] Based on evidence of Brodan’s available timesheets, Brodan estimated his unpaid wages during this period of time based on his average hours per week, being 64 hours per week. Based on an hourly wage of $19 for six months, at 64 hours per week, Brodan’s claim for unpaid wages results in total wages of $36,556. Brodan was paid $12,500 during this period. He claims the difference, being $24,056.

[128] Brodan also claims unpaid wages for June 7 to July 11, 2016. Brodan was able to produce his completed timesheets from June 7 to July 11, 2016. He worked 209 standard hours and 106.5 overtime hours in this period. Based on an hourly wage of $19 per hour, his unpaid wages for this period were:

• Standard wages: 209 hours x $19/hour = $3,971

• Overtime wages: 106.5 hours x $19/hour x 1.5 = $3,035.25

• Total unpaid wages for June-July 2016: $7,006.25

[129] Brodan claims total unpaid wages of $31,062.25 from December 10, 2015 to July11, 2016.

[130] I find that Brodan worked long hours for Boemar for six months from December 10, 2015 to June 6, 2016. I accept Brodan’s evidence about the estimates of time he worked based on his available timesheets. I accept that Brodan’s calculation of unpaid wages is supported by the evidence.

What is the amount of Dakota’s claim for unpaid wages?

[131] Dakota claims unpaid wages for the period of time from December 10, 2015 to May 2016, and for June-July 2016.

[132] This claim begins when the last cheque from Bart to Dakota or Brodan was given, which was December 10, 2015. Dakota’s claim is for withheld and unpaid wages owed to him beginning December 10, 2015 for earned wages in excess of the base wage of $480.

[133] Dakota estimated his unpaid wages during the period from December 2015 to May 2016 based on his average hours per week in the available timesheets, being 67 hours per week. Dakota calculates his claim for unpaid wages for six months, at 67 hours per week, based on $19/hour, in the total amount of $38,779. Dakota was paid $12,500 during this period of time. He claims the difference, being $26,279.

[134] Dakota was able to produce his completed timesheets from June 7 to July 11, 2016. He worked 2013 standard hours and 94.5 overtime hours during this period. Based on an hourly wage of $19/hour, his unpaid wages for this. Our:

• Standard wages: 213 hours x $19/hour = $4,047

• Overtime wages: 94.5 hours x $19/hour x 1.5 = $2,693.25

• Total unpaid wages: $6,740.25.

[135] Dakota claims total unpaid wages of $33,019.25 from December 2015 to July 2016.

[136] I find that Dakota worked long hours for Boemar for six months from December 10, 2015 to June 6, 2016. I accept his evidence about the estimates of time he worked. I accept that Dakota’s calculation of unpaid wages is supported by the evidence.

Which parties are liable for unpaid wages?

[137] In O’Reilly v. ClearMRI Solutions Inc., 2021 ONCA 385, the Court of Appeal, at paras. 2 and 49-51, addressed the common employer doctrine:

The common law doctrine recognizes that an employee may simultaneously have more than one employer. If an employer is a member of an interrelated corporate group, one or more other corporations in the group may also have liability for the employment obligations. However, and importantly, they will only have liability if, on the evidence assessed objectively, there was an intention to create an employer/employee relationship between the employee and those related corporations.

[T]he common employer question is one of contractual formation - did the employee and the corporation alleged to be a common employer intend to contract about employment with each other on the terms alleged? When such an intention is found to exist, no violence is done to the concept of corporate separateness because the corporation is held liable for obligations it has undertaken.

To determine whether the required intention to contract was present, the parties’ subjective thoughts are irrelevant. Nor need the intention necessarily have been reflected in a written agreement. The common law’s approach to contractual formation is objective; intention to contract can be derived from conduct. As the Supreme Court has stated in a similar common law contractual formation contact, what is relevant is “how each party’s conduct would appear to a reasonable person in the position of the other party” ...

The conduct most germane to showing an intention that there was an employment relationship with two or more members of an interrelated corporate group’s conduct which reveals that effective control over the employee resided with those members ... This is consistent with how the law distinguishes employment from other types of relationships. Control over such matters as the selection of employees, payment of wages or other remuneration, method of work, and ability to dismiss, can be important indicators of an employer/employee relationship ...

[138] I find that Bart paid Brodan and Dakota money for their unpaid and “banked” wages from employment with the Boemar companies from his personal funds. By suing for payment of the $148,000 he paid to Brodan and Dakota for unpaid and banked wages, Bart, personally, is effectively suing to recover paid wages received by Brodan and Dakota. This is clear and objective evidence that Bart exercised personal control over Brodan and Dakota as employees and personally acted as their employer. This evidence of Bart’s conduct would show to a reasonable person in the position of Brodan and Dakota that Bart intended to be a common employer with BSSI.

[139] With respect to Brodan’s and Dakota’s claim for unpaid wages, I conclude that Bart, personally, was, with BSSI, a common employer of Brodan and Dakota.

[140] Brodan and Dakota rely on evidence that Sylvia told Dakota of his dismissal in January 2012, that she often gave directions to them in Boemar’s Mississauga office, and that her $100,000 payment was compensation for wages earned by Brodan and Dakota.

[141] I do not accept that the evidence shows that Sylvia acted in such a way that would appear to a reasonable person in the position of Brodan and Dakota that she was their employer. The fact that she may have given directions to Brodan and Dakota is not, objectively viewed, sufficient to show that Sylvia was an employer of Brodan and Dakota. Sylvia was not involved in the discussions about the $100,000 payment. The fact that Bart acted as her agent in these discussions does not, in my view, lead to the conclusion that she is a common employer of Brodan and Dakota.

[142] Brodan and Dakota have not shown that other Boemar companies employed them during the period when they claim unpaid wages.

[143] Bart is jointly liable with BSSI as common employers for payment of unpaid wages to Brodan and Dakota.

Are Brodan and Dakota entitled to an award of punitive damages?

[144] Brodan and Dakota each claim punitive damages against Sylvia (by counterclaim) and against Bart, BSSI, and other third parties.

[145] In Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, the Court of Appeal addressed the requirements for an award of punitive damages in a claim for wrongful dismissal based on breach of an employment contract:

To obtain an award of punitive damages, a plaintiff must meet two basic requirements. First, the plaintiff must show that the defendant's conduct is reprehensible: in the words of Binnie J. in Whiten, "malicious, oppressive and high-handed" and "a marked departure from ordinary standards of decent behaviour": see Whiten, at para. 36. Second, the plaintiff must show that a punitive damages award, when added to any compensatory award, is rationally required to punish the defendant and to meet the objectives of retribution, deterrence and denunciation.`

[80] When the claim against the defendant is for breach of contract, as is Boucher's claim against Wal-Mart, the plaintiff must meet a third requirement. The plaintiff must show that the defendant committed an actionable wrong independent of the underlying claim for damages for breach of contract. In Canada, this requirement originated in the Supreme Court of Canada's judgment in Vorvis, itself a case about a breach of an employment contract, and was later affirmed in Whiten, at paras. 78-83.

[146] In Boucher, the Court of Appeal confirmed that the employer’s breach of its duty of good faith and fair dealing in the way the employee was dismissed was an actionable wrong.

[147] An independent actionable wrong is required, but it can be found in breach of a separate and distinct contractual provision or other duty such as a fiduciary obligation: Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 83.

[148] Punitive damages should receive the most careful consideration and the discretion to award them should be cautiously exercised. Courts should only resort to punitive damages in exceptional cases: Honda Canada Inc. v. Keays, 2008 SCC 39, at para. 68.

[149] In Pohl v. Hudson’s Bay Company, 2022 ONSC 5230, the motion judge on a motion for summary judgment in a wrongful dismissal case awarded compensatory damages against the employer on the basis that the employer had breached the employment contract by dismissing the employee without reasonable notice. The motion judge also awarded punitive damages. He found that the employer violated the ESA by failing to pay the employee’s wages in a lump sum within seven days of termination and the employer failed to provide the employee with a timely or accurate record of employment. The motion judge held that the failure to pay out the wages owed to the employee in accordance with the ESA and the failure to issue a timely record of employment justified an award of punitive damages. The employer’s failure to comply with the ESA was an actionable wrong that was independent of the claim for damages for breach of contract.

[150] There is no evidence that Sylvia engaged in reprehensible conduct that would justify an award of punitive damages.

[151] I have found that Bart told Brodan and Dakota when they began working for Boemar that he would withhold or “bank” their earnings at his discretion and pay them amounts they needed to live on, with the banked amounts being held by him to be paid when they needed the money, such as to make a down payment on the purchase of a condominium. I have found that when Bart arranged with Brodan and Dakota to pay them $100,000 through a cheque drawn on Sylvia’s account to be used in connection with the purchase of the condominium, he told them that this was a payment from their “banked” earnings. I have found that when Bart paid amounts to Dakota in the amount of $73,000 and to Brodan in the amount of $75,000, from November 1, 2013 to December 10, 2015, these payments, to Bart’s knowledge, were not loan advances but were payments of withheld wages owing to Dakota and Brodan.

[152] I have found that Bart’s evidence that Dakota was not working full time for Boemar from July 2012 until July 2013 was false, and that Dakota worked full time during this period of time without receiving payment of wages which were withheld or “banked” by Bart. I have found that Bart, initially, falsely maintained that Brodan did not work for Boemar full time from June 2012 to October 2013, and that he only resiled from this position in September 2019 when he was examined for discovery after receiving Brodan’s completed timesheets that showed that he was working for Boemar during this period of time. I have found that during this period, Brodan was not paid wages for his work, and his wages were withheld, or “banked” by Bart.

[153] I have found that for the period from June to July 11, 2016, Bart stopped paying Brodan and Dakota for their work, after they gave him notice of their resignations. The withheld wages were not paid. Throughout this litigation, Bart maintained this position and refused to pay Dakota and Brodan their earned wages. This conduct was a violation of the ESA. This is an actionable wrong that is independent of the claim by Brodan and Dakota for breach of their employment contracts.

[154] The audio recording of the conversation between Bart and Dakota on July 10, 2016 shows that Bart was fully aware that his denial throughout this litigation that he withheld, or “banked”, earned wages owing to Brodan and Dakota is false. Through his own words in this conversation, Bart agreed that he withheld wages owed to them. He promised to have his accountant prepare a statement showing the amount of unpaid wages owed to them. This was never done. Bart says in this conversation that he is withholding wages for work done in June and July 2016, just as he did earlier in their employment.

[155] The audio recording of the June 27, 2016 conversation with Brodan shows that, contrary to his false denials, Bart knew what the term “Boemar Bank” meant. He knew that he had withheld earned wages owed to Brodan and Dakota. He promised to have his accountant go back to when Brodan started to work in 2012 to determine how much was owed to Brodan for banked earnings.

[156] Bart did not offer a colourable explanation for his words in the recorded conversations. He fell back on his position that without timesheets, he did not accept that Brodan and Dakota worked for Boemar and refused to account for wages they earned. Bart and Boemar did not produce any timesheets or other employment records for Brodan and Dakota, maintaining that all hard copies of such records were shredded, and all electronic records were deleted.

[157] I do not accept Bart’s evidence in this respect. Even recent records in 2016 and 2015 were not produced, although this litigation started in 2016. The intentional destruction of relevant employment records constitutes spoliation of relevant documents. If the employment records were destroyed, as claimed, Bart, an experienced businessman, and BSSI, an established business, would have violated the document retention provisions of the ESA. I do not accept that this happened. When Bart promised to have his accountant go back to 2012 to determine Brodan’s banked wages, he did not suggest that this task would be impossible because needed records were no longer available. I do not accept Bart’s evidence that all employment records for Brodan and Dakota, including all electronic records, were destroyed as a matter of corporate policy. I find that at least some employment records for Brodan and Dakota, including timesheets, were available but Bart refused to produce them because doing so would contradict the false narrative that Bart was maintaining to defend his position in this litigation.

[158] Even after the recorded conversations between Bart and his sons in June and July 2016 were produced to Bart, he did not change his position in this litigation. At trial, his counterclaim to the third party claim included a claim for damages of $5 million against his sons for their alleged breach of a duty to be faithful to their employer. Although this claim was not pursued at trial, it was never formally abandoned.

[159] Bart’s conduct in relation to his (and BSSI’s) employees, and his sons, Brodan and Dakota, qualifies as harsh, offensive, and reprehensible by any measure. By falsely maintaining that the payments of $100,000 and $148,000 were loans, and not payment of earned and withheld wages, Bart was effectively trying to recover from his employees and sons amounts paid to them as earned wages. After they gave notice of their resignations as employees, Bart withheld even their regular weekly wages, without any colourable justification. Bart used his superior power in the employment relationship to take advantage of his sons’ vulnerabilities. Throughout this litigation, Bart was untruthful about his arrangements with his sons that he was withholding or “banking” earned wages, even after the truth was revealed in his recorded telephone conversations with them in June and July 2016.

[160] In determining the amount to be awarded to Brodan and to Dakota for punitive damages, I must determine the amount that is rationally required to punish Bart and BSSI and to denounce and deter their conduct. When I consider the offensive nature of Bart’s misconduct, the length of time over which it has occurred, including through this trial, and his failure to acknowledge any misconduct towards his sons or show any remorse, I conclude that significant awards for punitive damages are justified.

[161] I award punitive damages to be paid by Bart and BSSI, jointly and severally, to Brodan and Dakota in the amounts of $75,000 (to each of them).

Disposition

[162] For these reasons:

a. The action by Sylvia Beaumont is dismissed.

b. The counterclaim of BSSI and Bart Beaumont in the third party action against Dakota Beaumont and Brodan Beaumont is dismissed.

c. The third party claim of Dakota Beaumont and Brodan Beaumont is allowed in part, and judgment is granted as against BSSI and Bart Beaumont, jointly and severally, as follows:

i. Dakota is awarded damages for unpaid wages against Bart and BSSI in the amount of $33,019.25.

ii. Brodan is awarded damages for unpaid wages against Bart and BSSI in the amount of $31,062.25.

iii. Dakota is awarded punitive damages against Bart and BSSI in the amount of $75,000.

iv. Brodan is awarded punitive damages against Bart and BSSI in the amount of $75,000.

d. The counterclaim of Dakota Beaumont and Brodan Beaumont against Sylvia Beaumont is dismissed.

e. The third party claim of Dakota Beaumont and Brodan Beaumont against third parties other than Bart Beaumont and BSSI is dismissed.

[163] If the parties are unable to resolve costs, they may make written submissions. The written submissions of Brodan and Dakota (not longer than 5 pages excluding costs outline) are due within 15 days. The responding submissions of other parties (also not longer than 5 pages excluding costs outline) are due within 15 days thereafter. Reply submissions, if any, (not longer than 2 pages) are due within 5 days thereafter.

CAVANAGH J.

Released: October 27, 2023

COURT FILE NO.: CV-16-00563736-0000

DATE: 2023-10-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SYLVIA BEAUMONT

Plaintiff

– and –

DAKOTA BEAUMONT and BRODAN BEAUMONT

Defendants

– and –

BART BEAUMONT, SYLVIA BEAUMONT, BOEMAR CANADA INC., BOEMAR INC., BOEMAR SURFACES INC., BOEMAR PRODUCTS INC. and BOEMAR SURFACE SYSTEMS INC.

Third Parties

REASONS FOR JUDGMENT

CAVANAGH J.

Released: October 27, 2023