



COURT OF APPEAL FOR ONTARIO

CITATION: Moore v. Apollo Health & Beauty Care, 2017 ONCA
    383

DATE: 20170511

DOCKET: C62816

Laskin, Lauwers and Brown JJ.A.

BETWEEN

Alexandra Emily Moore

Appellant

and

Apollo Health & Beauty Care

Respondent

Alexandra E. Moore, acting in person

Stephanie E. Sangster, for the respondent

Heard: May 1, 2017

On appeal from the order of the Divisional Court (Justice
    Elizabeth M. Stewart), dated June 16, 2016, with reasons reported at 2016 ONSC 3331,
affirming the order of Deputy Judge Michael Bay of the Small
    Claims Court, dated January 9, 2015
.

Brown J.A.:

I.

Overview

[1]

The appellant, Alexandra Moore,
    sued her former employer, the respondent Apollo Health & Beauty Care
    (Apollo), in Small Claims Court for constructive dismissal and other employment-related
    damages. Ms. Moore has represented herself throughout the matter. At trial, she
    advanced two claims.

[2]

First, Ms. Moore alleged Apollo had fundamentally changed the terms of
    her employment, thereby constructively dismissing her. The trial judge found in
    Ms. Moores favour, holding Apollo had constructively dismissed her. However,
    the trial judge concluded Apollo provided Ms. Moore with appropriate
    termination notice calculated in accordance with the terms of the employment
    contract.

[3]

Second, Ms. Moore alleged Apollo had failed to pay her amounts for hours
    she had worked, for two statutory holidays, and for six sick days. The trial
    judge did not award any amount for these claims on the basis Ms. Moore had
    abandoned them during her trial evidence.

[4]

Ms. Moore appealed to the Divisional Court, requesting that court
    overturn the trial judges ruling she had abandoned portions of her claim and
    his finding on wrongful termination. A single judge of the Divisional Court
    dismissed her appeal. Ms. Moore then sought and obtained leave to appeal to
    this court.

[5]

I would not interfere with the trial judges finding that Apollo provided
    Ms. Moore with the amount of termination notice to which she was entitled under
    her employment contract. However, I would allow the appeal in respect of her claim
    for unpaid wages, statutory holidays and sick days. The trial judges
    conclusion she had abandoned her claim was based on a misapprehension of Ms.
    Moores evidence and therefore must be set aside.

II.

Facts

The appellants employment

[6]

Apollo hired Ms. Moore, an engineer, in November 2012 as a line
    technician. The company presented her with an employment contract. One term of
    the contract stated that in the event Apollo terminated her employment, Ms.
    Moore would be entitled to receive only such notice of termination,
    termination pay, benefit continuation and/or severance pay, if any, as are
    required by the [
Employment Standards Act, 2000
, S.O. 2000, c. 41
] in the circumstances
    of the termination. The company advised Ms. Moore she was free to seek
    independent legal advice before signing the contract. She signed the contract
    without doing so.

[7]

Apollo also provided Ms. Moore with an employee handbook, which stated
    employees were entitled to paid half-hour lunch breaks, double-time for Sunday
    work, and six paid sick days a year.

[8]

By the spring of 2013, three events had transpired. First, Ms. Moore discovered
    she was not receiving paid lunch breaks, paid sick days or double-time for
    Sunday work, as represented in the employee handbook. Apollo took the position
    the handbook was out-of-date, those terms had been changed before Ms. Moore had
    started her job, and therefore she was not entitled to receive those benefits.

[9]

Second, Ms. Moore discovered she was not being given credit for the full
    number of hours she had worked on several days.

[10]

Finally, Ms. Moores duties expanded from those of a line technician to
    more managerial responsibilities, akin to a line manager. Her pay, however, did
    not change.

[11]

On May 21, 2013, Ms. Moore provided Apollo with eight weeks notice of
    her resignation. In response, the company shortened her notice period to three
    weeks, relying on the terms of the employment contract.

The trial

[12]

A few weeks after her employment with Apollo had ended, Ms. Moore
    brought an action in the Small Claims Court against the company and some of its
    employees. Before trial, she withdrew her claim against the employees. As
    mentioned, her claim against Apollo contained two main components: (i) damages
    for constructive dismissal, using eight weeks as the appropriate period of
    notice; and (ii) damages for unpaid wages, two statutory holidays, and six
    unpaid sick days (hereafter collectively the Unpaid Wages).

[13]

Ms. Moore represented herself at trial. She testified. Apollo called one
    former employee to testify. The trial judge reserved.

[14]

The trial judge held the alteration of Ms. Moores responsibilities from
    that of a non-supervisory line technician to a line supervisor was a
    fundamental change in her job amounting to constructive dismissal. As well, he
    found the handbook was part of her employment contract. By denying Ms. Moore
    the listed benefits of paid lunch breaks, sick days and double-overtime for
    Sunday shifts, Apollo violated the employment contract and committed acts of
    constructive dismissal. The trial judge concluded Ms. Moore was constructively
    dismissed.

[15]

However, the trial judge went on to find the contract specified the
    amount of notice to which Ms. Moore was entitled when constructively dismissed.
    He concluded Apollo provided Ms. Moore with the notice to which she was
    entitled.

[16]

The trial judge found Apollo denied Ms. Moore her contractual benefits for
    paid lunch breaks, sick days and Sunday double-overtime. As well, he found, at
    para. 15, that hours were improperly and repeatedly deducted from her time
    records without justification and in violation of her employment contract.
    However, he denied her claim for Unpaid Wages, writing, at para. 19:

The claim for lost pay for lunch breaks, sick days, Sunday
    double-overtime, etc. cannot be awarded for the simple reason that this claim
    was abandoned.

Motion for a new trial

[17]

Ms. Moore brought a motion for a new trial pursuant to r. 17.04(1) of
    the
Rules of the Small Claims Court
, O. Reg. 258/98. Pursuant to rr.
    17.04(4) and (5), the Small Claims Court may grant a new trial or
pronounce the judgment that ought to have been given at trial and order
    judgment accordingly where (i) there was a purely arithmetical error in the
    determination of the amount of damages awarded, or (ii) there is relevant
    evidence that was not available to the party at the time of the original trial
    and could not reasonably have been expected to be available at that time.

[18]

Deputy Judge Clemenhagen directed a review by the trial judge, writing:

I have reviewed the transcript of the trial. It appears that DJ
    Bays finding in the course of her evidence the plaintiff abandoned her claim
    for unpaid wages as well as missed holiday and sick pay was not appearing in
    the course of her evidence. Therefore, the decision should be reviewed by Judge
    Bay on this issue to determine if his remarks were supported.

[19]

The trial judge subsequently dismissed Ms. Moores r. 17.04 motion,
    writing: My conclusion re waiving heads of damage is substantive, not
    mathematical.

Divisional Court decision

[20]

Ms. Moore appealed to a single judge of the Divisional Court, who
    dismissed her appeal. In regard to Ms. Moores claim for damages for
    constructive dismissal, the appeal judge wrote, at para. 7:

Moore does not take issue with the determination by the trial
    judge that she was wrongfully dismissed by Apollo. Similarly, although she may
    not agree with it, she does not challenge the trial judges decision that the
    employment agreement she had entered into with Apollo when she took the job
    disentitles her to any extra notice of termination or damages in lieu thereof
    beyond that which she admits she was given by Apollo.

[21]

The appeal judge also rejected Ms. Moores argument that the trial judge
    had erred in finding she had abandoned her claim for Unpaid Wages, writing, at
    paras. 22 and 23:

In my view, the trial judge made no palpable and overriding
    error in construing the evidence at trial and Moores position as he did. Moore
    presented no documentary quantification of any losses sustained by her and told
    the trial judge that she was just explaining one of the reasons why she left,
    i.e., why she claimed that she had been constructively dismissed.

Although Moore is a self-represented litigant, she is evidently
    very capable. The trial judge was obliged to be fair and even-handed in his
    conduct of the trial and could not function as her counsel. Moore did not
    pursue any specific money compensation for the pay differential issues, and
    specifically said she was not expecting compensation for them. The trial judge
    was entitled to conclude that she had abandoned any claim for repayment.

III.

First Issue: Damages for Constructive Dismissal

[22]

Ms. Moore submits the trial judge erred in relying on the notice
    provisions of her employment contract to calculate damages for constructive
    dismissal. She argues that once the trial judge found Apollo constructively
    dismissed her, the employment contract was void and its terms could not be used
    to calculate the notice to which she was entitled.

[23]

I do not accept this submission. Provisions respecting notice of
    termination of employment can limit the pay applicable on constructive
    dismissal:
Simpson v. Global Warranty Management Corp
.
, 2014
    ONSC 6916 (Div. Ct.), at paras. 3-4; Howard Levitt,
The Law of Dismissal in
    Canada
, loose-leaf (February 2017  Rel. 51), 3d ed., (Aurora: Canada Law
    Book, 2003), at para.11:40.10.

[24]

In the present case, the terms of the employment contract specifically
    address the calculation of notice upon constructive dismissal. Section 10
    provides:

If Apollo terminates your
    employment, you shall be entitled to receive only such notice of termination,
    termination pay, benefit continuation and/or severance pay, if any, as are
    required by the [
Employment Standards Act, 2000
] in the circumstances of
    the termination. This paragraph defines and limits your full entitlement to
    notice of termination, pay in lieu of notice, benefit continuation and
    severance pay upon termination of employment, and shall apply regardless of any
    changes to the terms and conditions of your employment (including changes in
    position, duties and responsibilities, reporting relationships, and
    compensation). Please read it carefully.

[25]

Accordingly, I see no error in the trial judges findings that Apollo
    gave Ms. Moore notice of its intent to terminate that was well within the
    contractual requirements and that Ms. Moore received what she was entitled
    to.

IV.

Second Issue: Damages for Unpaid wages

[26]

Ms. Moore submits the trial judge erred in finding she had abandoned her
    claim for Unpaid Wages. His error, she argues, was based on a misunderstanding
    of her evidence. She contends the error was repeated by the appeal judge.

[27]

I accept her submission. To explain why I do requires reviewing the
    sequence of Ms. Moores evidence at trial and the trial judges interactions
    with her.

Ms. Moores evidence at trial

[28]

Ms. Moore filed a lengthy Claim to start her action against Apollo. Her
    Claim concluded, at para. 74, with a list of the damages she was seeking to
    recover: (i) five weeks additional notice - $5,434; (ii) pay for three days,
    which included statutory holidays - $452.60; (iii) six paid sick days - $855;
    (iv) extra hours that she had worked, but had not been recorded by Apollos
    plant time clock - $250.83; and (v) $17,500 in punitive and aggravated damages.
    Paragraph 75 of the Claim set out an itemized, day-by-day calculation of the
    unpaid work days; para. 77 particularized her claim for unpaid sick days.

[29]

As permitted by r. 7.01(2)2 of the
Small Claims Court Rules
,
    Ms. Moore attached a number of supporting documents to her Claim, including
    copies of the Apollo timecards recording her hours of work.

[30]

Early in her evidence-in-chief at the trial, Ms. Moore explained to the
    trial judge that Apollo had not paid her for a number of hours she had worked. The
    trial judge asked for details. Ms. Moore stated the timecards were attached to
    her Claim. The trial judge asked her to separate from her Claim those documents
    she wanted him to consider as evidence. She did, and a bundle of 27 pages of
    documents was marked as Exhibit 1.

[31]

Then, Ms. Moore took the trial judge through the timecards and
    identified those days on which the plants time clock had not given her full
    credit for work.

[32]

Ms. Moore next gave evidence on the issue of unpaid sick days. She
    referred to the employee handbook, extracts from which had been marked as part
    of Exhibit 1. She testified that she was not paid for six sick days. Her
    evidence on this issue included the following exchange:

Ms. Moore: And I guess thats really all I have to say about
    sick days.

Court: Okay.

Ms. Moore: Thats, I think, is pretty straight-forward.

In response to a question from the
    Bench, Ms. Moore identified the dates for which she was claiming sick-day pay.

[33]

Ms. Moore then moved on to a new issue: how her job duties had changed,
    and the basis for her constructive dismissal claim. In that context, she began
    to testify about how Apollo had not provided paid lunch breaks and
    double-overtime for Sundays, as had been represented in the employee handbook.
    In the course of her evidence about Apollos overtime policy, the court
    intervened and the following exchange occurred:

Court: Are you going to be providing an accounting for all of
    this at some point?

Ms. Moore: Im just, Im just  just stating.

Court: But are you going to be providing an accounting? Are you
    going to be adding all of this up for the court at some point?

Ms. Moore: The breaks, no, Im just

Court: Then I hope youre not expecting to be compensated for
    them?

Ms. Moore: No, Im not. Im just explaining one of the reasons
    why I left.

Court: Mm-hmm.

[34]

Ms. Moore then testified about giving notice to Apollo that she would be
    leaving the company.

[35]

In his reasons, the trial judge stated: In the course of her evidence
    the Plaintiff abandoned her claim for unpaid wages as well as missed holiday
    and sick pay. The appeal judge held that in light of the exchange between the
    trial judge and Ms. Moore set out in para. 33 above, the trial judge made no
    palpable and overriding error in construing her evidence as the abandonment of
    her claim for such damages.

[36]

With respect, both the trial judge and appeal judge erred in so
    concluding. They committed two errors. First, both misapprehended Ms. Moores
    evidence and did not assess one short statement made by her in the context of
    her entire evidence. Second, they failed to take the proper approach in
    ascertaining whether Ms. Moore, a self-represented person, in fact had
    abandoned part of her claim.

Misapprehension of the evidence

[37]

A misapprehension of the evidence may refer to a failure to consider
    evidence relevant to a material issue, a mistake as to the substance of the
    evidence, or a failure to give proper effect to evidence:
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 538.

[38]

In the present case, the trial judge mistook the substance of Ms.
    Moores evidence. When, in answer to his question, Ms. Moore testified that she
    was not expecting compensation for the unpaid breaks, but just referring to the
    issue as one of the reasons why I left, the trial judge mistakenly concluded
    Ms. Moore was not pursuing her claim for Unpaid Wages. It was not reasonable
    for the trial judge to reach that conclusion, without further inquiry, in light
    of: (i) Ms. Moores itemization of those items in her Claim, together with a
    calculation of the compensation sought; (ii) her placing the Apollo timecards
    into evidence; and (iii) her testimony about the specific days for which she
    sought compensation.

[39]

The transcript of Ms. Moores evidence at trial reveals the trial judge
    misapprehended her evidence when, in his reasons, he stated that [i]n the
    course of her evidence the Plaintiff abandoned her claim for unpaid wages as
    well as missed holiday and sick pay. She did no such thing. The Small Claims
    Court reviewing judge properly queried whether there was any support for that
    conclusion by the trial judge in the evidence. Unfortunately, the appeal judge
    fell into the same error as the trial judge.

[40]

The trial judges misapprehension of Ms. Moores evidence was palpable
    on the face of the transcript. That error was an overriding one, leading the
    trial judge to deny Ms. Moore damages for a claim in which he had ruled in her
    favour on the issue of liability. On the basis of that error, I would set aside
    the trial judges dismissal of Ms. Moores claim for damages for Unpaid Wages.

Ascertaining whether a self-represented person has abandoned part of her
    claim

[41]

The new reality of civil litigation in public courts is the significant
    number of parties who are not represented by a lawyer, but present their own
    cases. Presiding over a trial where a party is not represented by a lawyer
    poses distinct challenges for a trial judge, and also brings with it distinct
    responsibilities.

[42]

Both the challenges and responsibilities are succinctly described in the
Statement of Principles on Self-represented Litigants and Accused Persons
(the 
Statement
) issued by the Canadian Judicial Council in September
    2006. The Supreme Court of Canada endorsed the
Statement
in
Pintea
    v. Johns
, 2017 SCC 23.

[43]

The main challenge faced by a trial judge when a party is not
    represented by a lawyer lies in the difficulty of managing an adversarial
    proceeding when one party lacks formal training in the law and its procedures.
    As described by the
Statement
, at p. 3:

Self-represented persons are generally uninformed about their
    rights and about the consequences of choosing the options available to them;
    they may find court procedures complex, confusing and intimidating; and they
    may not have the knowledge or skills to participate actively and effectively in
    their own litigation.

[44]

While self-represented persons vary in their degree of education and
    sophistication, I think it safe to say that most find court procedures
    complex, confusing and intimidating. That state of affairs gives rise to the
    responsibility of judges to meet the need of self-represented persons for
    simplicity and to provide non-prejudicial and engaged case and courtroom
    management to protect the equal rights of self-represented persons to be
    heard:
Statement
, pp. 4 and 6.

[45]

The
Statement
, at p. 7, offers specific advice to judges about
    how to meet their responsibilities to self-represented persons in the courtroom
    environment:

Judges have a responsibility to inquire whether self-represented
    persons are aware of their procedural options, and to direct them to available
    information if they are not.
Depending on the
    circumstances and nature of the case, judges may explain the relevant law in
    the case and its implications, before the self-represented person makes
    critical choices.

In appropriate circumstances, judges should consider providing
    self-represented persons with information to assist them in understanding and
    asserting their rights, or to raise arguments before the court.

Judges should ensure that procedural and evidentiary rules are not
    used to unjustly hinder the legal interests of self-represented persons.
    [Emphasis added.]

[46]

In the present case, the trial judge did several things to discharge his
    responsibility to protect the right of the self-represented person to be heard.
    Ms. Moore had not prepared a formal calculation of damages to place into
    evidence. However, the trial judge: clarified that some of the documents
    appended to Ms. Moores Claim were ones she wanted put into evidence; drew on
    the resources of the court staff to make copies of the relevant documents;
    assisted Ms. Moore in marking them as formal exhibits; and asked questions to clarify
    some of the details of her claim for Unpaid Wages.

[47]

However, the trial judge did not make sufficient inquiries before
    concluding Ms. Moore had abandoned her claim for Unpaid Wages. Where the
    evidence of a self-represented party raises a question in the trial judges
    mind about the specific relief the party is seeking, a trial judge must make
    the appropriate inquiries of the party to clarify the matter. Those inquiries
    must be made in a clear, unambiguous, and comprehensive way so that several
    results occur: (i) the trial judge is left in no doubt about the partys position;
    (ii) the self-represented person clearly understands the legal implications of
    the critical choice she faces about whether to pursue or abandon a claim; and
    (iii) the self-represented person clearly understands from the trial judge
    which of her claims he will adjudicate.

[48]

Deputy judges of the Small Claims Court operate under significant time
    and volume pressures. As well, they daily face the challenge of trying to
    modify an adversarial civil litigation process historically predicated on
    representation by counsel to the increase in self-representation by parties.
    Nevertheless, such is the new reality. And it often requires a trial judge to
    take the time to ask those few extra questions to nail down, with clarity for
    all, the claims of the self-represented person upon which he will adjudicate.
    Trial fairness requires no less.

[49]

In the present case, the trial judge did not make those clear,
    unambiguous, and comprehensive inquiries. As a result, he proceeded on the erroneous
    basis that Ms. Moore had abandoned her claim for Unpaid Wages, while Ms. Moore
     quite reasonably  thought she had done no such thing. As well, the trial
    judge failed to inform Ms. Moore clearly that he would not consider her claim
    for Unpaid Wages, which she had just spent a considerable amount of time
    reviewing for him. His failure to do so resulted in an unfair trial.

Conclusion

[50]

As a result of the trial judges error in treating as abandoned Ms.
    Moores claim for Unpaid Wages, I would set aside his dismissal of that part of
    her claim. Before us, the parties agreed that claim totaled $1,558.43 ($452.60
    + $855 + $250.83). Given the modest amount of damages at issue, this is not a
    case where the assessment of damages should be referred back to a trial judge.
    Instead, I would exercise the powers of this court under s. 134(1)(a) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43. The evidentiary record supports Ms.
    Moores claim for Unpaid Wages. Consequently, I would grant judgment to Ms.
    Moore in the amount of $1,558.43.

V.

Disposition

[51]

For the reasons set out above, I would allow the appeal in part. I would
    set aside the order of the Divisional Court and the order of the Small Claims
    Court dismissing Ms. Moores claim for Unpaid Wages. I would grant judgment to
    Ms. Moore against Apollo in the amount of $1,558.43.

[52]

Ms. Moore is critical of the way Apollos lawyers conducted its defence,
    going so far to ask this court to refer them to the Law Society of Upper
    Canada, or to award elevated costs. I see nothing in the record about the
    conduct of Apollos lawyers that would justify so doing.

[53]

However, I would award Ms. Moore, as the successful party, her costs of
    the proceedings throughout, in the amount of her reasonable out-of-pocket
    disbursements fixed at $6,000, inclusive of HST.

Released: May 11, 2017 (JL)

David Brown J.A.

I agree. John Laskin J.A.

I agree. P. Lauwers J.A.


