2012 QCCQ 6089, 2012 QCCQ 6089

Rodalakis c. Bayer inc. 2012 QCCQ 6089 COURT OF QUEBEC « Small Claims Division » CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL « Civil Division » N°: 500-32-123323-109 500-32-123587-109 500-32-123789-101 DATE: May 29, 2012 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ PETER RODALAKIS Plaintiff v. BAYER INC. and BERLEX CANADA INC.

Defendants/Plaintiffs reconvict ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Cases nos. 500-32-123323-109, 500-32-123587-109 and 500-32-123789-101 were heard together. [ 2 ] An employment contract intervened between the parties, on June 13, 2006 (exhibit P-1).

Berlex Canada Inc. ("Berlex") hired plaintiff as a clinical research associate, at an annual salary of $66,000.00, for an indeterminate period. [ 3 ] Following the acquisition of Berlex by defendant Bayer Inc. ("Bayer"), several employees were dismissed, including plaintiff, on March 30, 2007. [ 4 ] Bayer offered plaintiff a severance package (exhibit P-3), which he declined. [ 5 ] Notwithstanding s. 82 of the Labour Standards Act [1] , which provides for a lesser notice, under the circumstances, Bayer paid plaintiff a salary until April 27, 2007. [ 6 ] On November 27, 2007, plaintiff sued defendants (case no. 500-32-107566-079), for $2,805.00, for two (2) weeks salary, for the period from April 27 to May 14, 2007.

On January 19, 2009, the parties reached an out-of-Court settlement for the full amount of the claim, as appears from release form exhibit P-7. [ 7 ] On May 28, 2010, plaintiff filed a second suit against defendants (case no. 500-32-123323-109), claiming $2,805.00, for two (2) weeks of salary, this time for the period from May 14 to May 30, 2007, as part of the "3 months of salary continuance and 3 weeks of compensation" to which he claimed he was entitled. [ 8 ] On June 11, 2010, he filed a third identical application (case no. 500-32-123587-109), claiming a further amount of $2,805.00, for another two (2) weeks of salary, this time for the period from May 30 to June 14, 2007. [ 9 ] Finally, on June 28, 2010, he filed a fourth almost identical application (case no. 500-32-123789-101), save for the amount of the claim which was $7,000.00, for a further five weeks of salary, for the period from June 14 to June 29, 2007, plus an additional three weeks. [ 10 ] In the three claims at bar, plaintiff contends that, on October 10, 2006, at a meeting of the Clinical And Outcomes Research Group, Francis Roy and Michel Cimon confirmed, on behalf of the employer, "that the CRAs would receive the severance package if they (did) not agree to work from home", and filed minutes of the meeting as exhibit P-6. [ 11 ] He further alleges that, on January 19, 2007, a notice of collective dismissal (exhibit P-2) was posted, and that his name appeared on the annexed list of employees who would be receiving "un minimum de trois (3) mois de continuation de salaire", and "une indemnité de délai de congé supplémentaire équivalente à trois (3) semaines par année de service" (sic). [ 12 ] It is plaintiff's contention that, in virtue of the above, defendants are liable to pay him the severance package described in exhibit P-2.

He also contends that these terms were laid out by Roy, before he was hired, as, at that time, there were "rumours" that Berlex would be acquired by Bayer, and plaintiff had no intention of leaving his job in California, without this reassurance.

[ 13 ] Bayer argues that if the parties had agreed thereto, contract P-1 would have made mention thereof. [ 14 ] In a written statement dated June 21, 2010, produced as testimony under s. 980 of the C ode of Civil Procedure, Roy states: "Je confirme que j'étais conseiller aux Ressources humaines pour Berlex Canada de 2003 à 2007 et que j'avais, entre-autre, comme groupe client, l'équipe de recherche clinique. Je confirme, également, que je n'ai jamais offert le programme de reassurance de Berlex à M. Rodolakis verbalement ou par écrit. De plus, à ma connaissance, ce programme ne lui a jamais été offert et M.

Rodolakis ne se qualifiait pas pour le programme car il a été embauché après l'annonce de l'offre d'achat de Bayer pour Schering AG." [ 15 ] Bayer further argues that plaintiff's claims are prescribed and are not in conformity with s. 955 C.C.P.

PRESCRIPTION [ 16 ] Plaintiff submits that his claims are not prescribed, as he did not know, until receiving his last pay check on May 14 th , 2007, that Bayer would not apply the terms of the collective dismissal to him. [ 17 ] However, this is inconsistent with his other allegations, namely that he "accepted the June 19 th , 2006 offer (based on Berlex's representations) which Bayer converted into writing on January 19 th , 2007" (par. 4 of the application), and that on "January 22 nd , 2007, (he) was informed by Ms Marie-France Desnoyers, Director of Human Resources of Bayer, that contrary to the severance package announced previously, (he) was now to receive compensation totaling only one (1) month of salary continuance, as demonstrated by the letter submitted as exhibit P-3" (sic) (pars. 5 of the applications). [ 18 ] S. 2880 of the Civil Code of Quebec , states that the day on which the right of action arises fixes the beginning of the period of extinctive prescription. [ 19 ] The day on which the right of action arose, was March 31, 2007, the day after plaintiff's dismissal, as, at that time, plaintiff was informed of the terms of his dismissal: "En principe, la prescription commence à courir le lendemain du jour où le créancier pouvait, pour la première fois, faire valoir son droit, donc le jour où, en fait, le droit d'action a effectivement pris naissance". [2] [ 20 ] Indeed, once Bayer terminated plaintiff's employment contract, the contract ceased to be one of successive performance (s. 1383 C.C.Q.).

Simply stated, a terminated contract is no longer a contract of successive performance; and plaintiff could not artificially divide his claim under s. 955 par. 2 (

c) C.C.P. as if it were. [ 21 ] Be that as it may, even if the Court were to consider April 27 or May 14, 2007 as the day on which the right of action arose, the applications filed by plaintiff on May 28, June 11 and June 28, 2010, are prescribed, as they were filed outside the three year extinctive prescription period under s. 2925 C.C.Q. [ 22 ] Given that plaintiff's rights were extinguished by prescription, there is no need to address the other issues respectively brought up by the parties with regards to the principal actions. [ 23 ] However, the Court would add that by taking four separate actions as he did, and creating artificial due dates for salary allegedly owed, plaintiff divided a claim exceeding $7,000.00, into four claims totalling $15,415.00, that which is contrary to s. 955 C.C.P. [ 24 ] Finally, there is no merit to defendants' cross-demands in each of the three files. [ 25 ] Bayer alleges that plaintiff is acting in bad faith, but there is no evidence to support this allegation (ss. 2803, 2804 and 2805 C.C.Q.). [3] WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's applications; DISMISSES defendants' cross-demands; THE WHOLE each party paying its own costs. __________________________________ ELIANA MARENGO, J.C.Q.

Date of hearing: March 23, 2012