2020 QCCQ 591, 2020 QCCQ 591

Elhallaq c. Future Electronics (CDA) Ltd. 2020 QCCQ 591 COURT OF QUÉBEC “Small Claims Division” CANADA PROVINCE DE QUÉBEC DISTRICT DE MONTRÉAL “Civil Division” N° : 500-32-704654-187 DATE : February 11, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE ÉRIC DUFOUR, J.C.Q. ______________________________________________________________________ MONA ELHALLAQ Plaintiff v.

FUTURE ELECTRONICS (CDA) LTD Defendent ______________________________________________________________________ JUDGEMENT ______________________________________________________________________ OVERVIEW [ 1 ] Mrs. Elhallaq sues her former employer, Future Electronics (CDA) Ltd (Future), alleging that she has been fired without reasonable and sufficient cause. She claims that the notice of termination of contract given to her was insufficient. She asks for the payment of $21 000 representing six (6) months of salary.

She also asks for punitive damages ($5 000) and the reimbursement of her legal fees ($5000) [1] . [ 2 ] Mrs. Elhallaq underlines that, as a refugee, she must leave the country for a period of two weeks, every six months. If not, she may lose the advantages attached to her status. She argues that her situation was known by Future. As a matter of fact, her previous manager accommodated her by granting every leave of absence she asked. Mrs.

Elhallaq further alleges that Future’s new position refusing to grant her permission to leave is unreasonable and constitutes no more than an excuse to unlawfully put an end to her contract of employment. She says that the refusal is a scheme leading to a constructive dismissal. [ 3 ] Future denies owing anything to Mrs. Elhallaq. The company alleges that Mrs. Elhallaq was aware that she could no longer leave safe by taking days off from her vacation bank. If not, Mrs. Elhallaq places herself in a situation where the contract may be resiliated. Future adds that the arrangement Mrs.

Elhallaq is relying on has not been proven. [ 4 ] Future also argues that Mrs. Elhallaq has been fully aware that she could no longer take days off because her vacation bank was empty and that if ever she nonetheless chooses to leave, she may put herself at risk of losing her job. Considering that Mrs. Elhallaq left without permission and did not come back in the time frame set by the company, Future came to the conclusion that Mrs. Elhallaq broke the confidence bound necessary for the parties to continue with their relationship. Mrs.

Elhallaq’s contract has been resiliated and a notice of termination of contract of two weeks was paid to her. [ 5 ] For the reasons herein, the Court finds that the defense of Future is well-founded. Mrs. Elhallaq’s claim is therefore dismissed. ISSUES [ 6 ] This trial raises the following issues :

A) Has Mrs. Elhallaq been dismissed without cause? More specifically, has Mrs. Elhallaq proven the deal that she alleges was agreed with her former manager?

B) If so, was the notice of termination of employment given to Mrs. Elhallaq reasonable?

C) If not, has Mrs. Elhallaq established the amount of her claim? ANALYSIS [ 7 ] As in any other civil litigation, Mrs. Elhalaq bears the burden of proof. This means that she must establish the factual grounds of her claim and that the weight of her evidence must be greater than that of Future’s [2] .

[ 8 ] That being said, let us turn to the issues at stake.

A) Has Mrs. Elhallaq been dismissed without cause? More specifically, has Mrs. Elhallaq proven the deal that she alleges was agreed with her former manager? [ 9 ] The Tribunal concludes that Mrs. Elhallaq was legally laid off. The oral agreement she refers to has not been proven and, even so, does not bind Future. Moreover, Future did not have to give Mrs. Elhallaq a notice of termination of employment. Future however did give such a notice and this notice was reasonable, considering all the facts referred to herein.

Here is why the Tribunal comes to this conclusion. [ 10 ] The case law may be summarized as follows : - Abuse of right is part of our Civil law since the Supreme Court of Canada’s landmark judgments in Soucisse v . Banque nationale du Canada [3] and Houle v . Banque nationale du Canada [4] . See also articles 6, 7, 1375 C.C.Q ., and

article 2091 and 2092 C.C.Q . concerning the contract of employment; - Abuse of exercising a right can occur even absent of ill intention or bad faith [5] ; - Unilateral resiliation of a contract by an employer does not necessarily amount to abuse of exercising a right even if it causes damages to the employee; - Where an employer resiliates a contract for cause, he does not need to give a notice to the employee [6] ; - If, on the contrary, the dismissal was not due to a serious lack of the employee to its contractual obligations, the employer must allow a reasonable notice of termination; - When an insufficient notice of termination was given, or when a resiliation has been made abusively, the employee may ask for an indemnity to compensate him for his damages [7] ; - The nature of the employment, specific circumstances in which it is carried, and the duration of the period of work are the criteria considered in the sufficiency of the notice; - The purpose of the notice of termination is to give the employee a reasonable time to find another job [8] ; - The reasonableness of a notice of termination depends on the particular facts of a case [9] ; - While the duration of the period of employment is the prime criteria [10] , the age of the employee, the possibility to find a similar job, the health of the employee are also of importance.

The conclusion on the reasonableness must rely on each criteria as a whole [11] ; [ 11 ] Let us now apply this legal framework to the facts at bar. [ 12 ] Mrs. Elhallaq is an Israelian refugee from Kuwait. According to her testimony, she has to leave Canada every six months in order to keep that status. [ 13 ] In June 2015, she was hired by Future as a leads analyst. The contract was for an undetermined period [12] . Her salary was $42 000 per year. [ 14 ] Because of her status’ requirements, she asked her manager, who does not work at Future anymore, permission to leave for two weeks every six months.

She claims the manager agreed. [ 15 ] At the hearing, Mrs. Elhallaq admitted that such an agreement was never part of the terms of her employment contract. She also never asked for the oral agreement to be written and added to the contract. Indeed, such a permission to leave on the

schedule set above, without the taking into account of the needs of Future, greatly departs from the terms and conditions of the written contract and the General Terms and Condition that is attached to it [13] . It is noteworthy to point out that, according to its clauses, the contract of employment cannot be modified unless by a writing signed by a duly authorized officer of the company [14] . [ 16 ] Testimonies from the witnesses of Future on that point are as follows. Every employee is entitled to three weeks of vacation.

Additional four to five days are allowed for personal reasons, notably university exams or medical appointments [15] . Apart from that, no employee can be absent from his work without prior authorization to that effect. [ 17 ] In February 2017, Mrs. Elhallaq asked her new manager, Mrs. Sue Pang, for leave on vacation [16] . Mrs. Pang responded that she had to check the employees’ record at the Human Resources Department. [ 18 ] Mrs. Pang made a research but never found the agreement Mrs. Elhallaq referred to. Indeed this deal was oral and never put in writing. [ 19 ] In March 2017, Mrs.

Elhallaq was called to a meeting with her boss. She was informed that whatever the oral agreement was with her former manager, it was no longer to be accepted by the company. In other words, no leave was to be allowed if no vacation time was taken from her remaining vacation bank. It was also explained to her that the granting of leave was subject to the needs of the company. [ 20 ] Exceptionally, and for that time only, her request was nevertheless granted, mostly because her plane tickets were already bought. At the end of that meeting, Mrs.

Elhallaq was warned about the consequences she would have to face if, in the future, she ever left without obtaining a pre-authorization. Mrs. Elhallaq was then told that it was the last time such a permission would be granted.

According to Mrs. Tina Grennan’s testimony, Mrs. Elhallaq never complained. Mrs. Elhallaq left and flew to Kuwait and eventually came back to Montréal. [ 21 ] However, in August 2017, Mrs. Elhallaq once again asked permission to leave for vacation. As she had no remaining vacation days in her employee bank, the leave permission was not granted. Future based its decision on the needs of the company at that specific time of the year. The fact that the alleged oral agreement was not part of the employment contract was also part of the decision making. [ 22 ] Mrs.

Elhallaq says that she had no option but to exit Canada to go to Kuwait, which she did on September 15, 2017. [ 23 ] But when came the time for her to fly back to Canada, she couldn’t, she explains, due to a passport validity issue. She contacted her manager, who asked for a copy of her passport and some other information, such as the names of the relatives she was staying at. Mrs. Elhallaq refused to provide this information, but for the passport of which she however only sent the cover page [17] . [ 24 ] Future then asked Mrs. Elhallaq to come back to work. She never showed up.

Future decided to impose punitive measures on Mrs. Elhallaq, because of her insubordination. Future first considered some days off without salary. But, as Mrs. Elhallaq never came back to work, termination of contract for cause was finally determined [18] . A two week notice was given on November 24, 2017 by Future [19] . [ 25 ] For the reasons above, the Court considers that Future was right in relying on the written contract and the General Terms and Conditions that complete it. These clauses specifically provide that the contract cannot be orally modified unless by an authorized member of the managing staff.

No such agreement has been established by Mrs. Elhallaq but by her testimony. According to the rules of evidence set forth in

article 2863 of the Civil Code of Québec , a party to a signed contract cannot contradict it by testimony absent of a commencement of proof. Since there is no such commencement of proof here, Mrs. Elhallaq is not admitted to contradict the terms of the contact. [ 26 ] In any event, if ever a past oral agreement managed the relationship between the parties, it did not stand anymore at the time Mrs.

Elhallaq left in August 2017 and Future was not obliged, in any way, to give effect to this alleged agreement. [ 27 ] Considering all the facts of this case and the applicable case law, the Court concludes that : - The termination of employment was made for cause; - Future was not obliged to give a notice of termination of employment to Mrs. Elhallaq; - Future nevertheless gave her a notice of termination.

B) If so, was the notice of termination of employment given to Mrs. Elhallaq reasonable? [ 28 ] Given the previous conclusions abovementioned, it would normally not be necessary to answer this question. Nevertheless, the Court concludes as follows. [ 29 ] Mrs. Elhallaq has been employed by Future for two years. Mrs. Elhallaq testifies that it took her six months to find a similar job. [ 30 ] Considering the duration of the contract, the young age of Mrs. Elhallaq, the particular circumstances of this case, namely the fact that Mrs.

Elhallaq decided to leave being fully aware of the consequences, a two week notice was fit to her situation and the Court would have not intervened. The notice of termination was reasonable.

C) If not, has Mrs. Elhallaq established the amount of her claim? [ 31 ] Once again, given the Court’s conclusion on the first question, the issue of damages need not be adressed. [ 32 ] Nonetheless, the Court finds that Mrs. Elhallaq did not meet her burden of proof on this part of her claim. [ 33 ] Again, the Tribunal concludes that the notice of termination was reasonable. [ 34 ] As for the professional (legal) fees, they are only partly documented and do not amount to what Mrs. Elhallaq claims [20] .

The Tribunal adds that such judicial fees are awarded in very rare occasions, notably where abuse is proven, which was certainly not the case here. [ 35 ] Finally, no proof was made that her employer has willingly and unlawfully infringed Mrs. Elhallaq’s rights provided by the Charter of Human Rights and Freedoms [21] . No exemplary damages would therefore have been awarded. FOR THEESE REASONS, THE COURT: DISMISSES the Plaintiff’s claim, with legal costs of $302 representing the costs of the judicial stamp for the Defense. __________________________________ ÉRIC DUFOUR, J.C.Q. Date of hearing: November 18, 2019.