2015 QCCQ 11345, 2015 QCCQ 11345

Fortin-Camacho c. Montreal Tank Wash Inc. 2015 QCCQ 11345 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL «Civil Division» No: 500-32-140154-131 DATE: October 23, 2015 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ Cielo fortin-camacho Plaintiff v.

MontrEal tank wash inc. -and- Ted stavrakis Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $4,044 from Defendants following the termination of her employment at Montreal Tank Wash Inc. (“ MTW ”) weeks only after she was recruited by Ted Stavrakis, MTW’s principal. [ 2 ] She claims that Mr.

Stavrakis made false representations about the position offered and advancement possibilities at MTW when he hired her and that she was later terminated in a careless and negligent manner. [ 3 ] She seeks damages representing the cost of French tutoring sessions that she took on Mr.

Stavrakis’ instructions, as well as the allowance that she claims to have been entitled to for the car that she leased when she joined MTW, for the 10 months it took to transfer the lease to a third party after she was dismissed. [ 4 ] Defendants admit the claim relating to the tutoring sessions ($450), but deny any further liability towards Plaintiff. They claim that Plaintiff was not entitled to a car allowance and argue that her employment was terminated for serious reason, releasing MTW from any liability towards her. [ 5 ] Mr.

Stavrakis also denies any personal liability. questions in issue [ 6 ] Given the admission regarding the tutoring sessions ($450), the case raises the following questions:

a) Was Plaintiff entitled to a car allowance as part of her employment?

b) Did Defendants commit a fault towards Plaintiff and if so, are they liable for the damages claimed? FACTUAL CONTEXT [ 7 ] In February 2013, Plaintiff was approached by Mr. Stavrakis regarding possible employment at MTW. [ 8 ] At the time, she held a stable full-time position at Domino’s Pizza as a manager. She was recommended to Mr. Stavrakis by Mr. Gary Munden, his personal driver, who knew her well. [ 9 ] She met Mr. Stavrakis on February 27, 2013 and accompanied him for a few hours while he was going about his usual business activities. [ 10 ] During this meeting, Mr.

Stavrakis stated that he was interested in hiring Plaintiff to assist the general manager at MTW and work on various special projects. He stated that there was no job description for the position and that he was looking for someone with an “A-player” attitude who was willing to learn the business from A to Z and make his/her way up to higher-level management. [ 11 ] Plaintiff was interested and told him so: she was prepared to learn everything about MTW’s business – including by washing truck tanks – to work her way up in management.

She was looking for a job with ample opportunity for advancement and she wanted to make it a career. Mr. Stavrakis clearly understood this. [ 12 ] During the meeting, Plaintiff voiced concerns about the quality of her written French and knowledge of Excel and about the

location of MTW’s premises, stating that she did not have a car and could not afford one. [ 13 ] Mr. Stavrakis dismissed these issues. He stated that he would pay for French and Excel training, take care of finding her a car and, according to Plaintiff, provide support for car payments. [ 14 ] At the close of the meeting, Mr. Stavrakis asked how quickly she could leave her current employment and it was agreed that she would give advance notice of her departure and begin her French and Excel training during the notice period. [ 15 ] Plaintiff began working at MTW on March 25, 2013. Mr.

Stavrakis arranged for her to travel with another employee to get to work during her first week and when that fell through, he instructed her to rent a car at his cost while arrangements were made to find her a car. [ 16 ] On March 27, 2013, Plaintiff and Mr. Stavrakis had further discussions regarding a car. Plaintiff claims that Mr. Stavrakis asked if she could afford lease payments on a car and, when she said she could not, asked if she could afford a third or half of lease payments if he took care of the insurance. She said that she believed she could, subject to specific amounts.

He asked that she keep their discussion confidential. [ 17 ] On April 1, 2013, after further exchanges on car options and prices, [1] Plaintiff signed a four-year lease for a new car at a cost of $308 per month. She claims that Mr. Stavrakis approved this and undertook to pay her a 200$/month allowance towards lease payments. [ 18 ] The same day, Plaintiff advised Mr.

Stavrakis that she needed proof of insurance to take possession of the car and he asked an insurance broker he knew to “take care of her”. [2] Plaintiff claims that when he was advised of the price of the insurance ($1,508 per year) he stated that he would pay 50% and she accepted. [ 19 ] On April 5, 2013, Mr. Stavrakis reimbursed expenses of $470 to Plaintiff, including the $200 allowance for the April car lease payment. [3] He also paid $200 to Plaintiff on May 6, 2013, which according to Plaintiff was for the May car lease payment.

She also asked for his share of the insurance and additional French tutoring sessions and claims that he said he would pay her the following week. [ 20 ] Between March 25 and mid-May 2013, Plaintiff worked at various tasks at MTW, assisting the general manager, completing special projects and replacing others while on holiday or leave. She was not advised of any complaints or dissatisfaction about her work. [ 21 ] On May 14, 2013, she expressed concerns to M.

Stravrakis about her position. [4] She claimed to be doing mostly secretarial work and did not see the advancement opportunities that he had represented; the salary was lower than discussed and with her car expenses, she was having difficulty making ends meet, so much so that she was considering a move closer to work. [ 22 ] She also advised Mr. Stavrakis, as she had advised MTW’s general manager earlier that day, that she had a mild form of dyslexia affecting her

interpretation of numbers. She indicated that she would have disclosed this outright if she had known that she would be doing so much data entry, but assured Mr. Stavrakis that it could be managed, that she was still committed to MTW and hoped to make it work. In short, she asked for guidance from him. [ 23 ] At the end of the day on May 17, 2013, after an afternoon-long office party that Plaintiff did not attend and during which she manned the office, MTW’s general manager advised Plaintiff that she was terminated effective immediately.

It is uncontested that he was notably inebriated and that he stated he felt resentful that Mr. Stavrakis had hired her without consulting him and uncomfortable with her dyslexia. [ 24 ] After her termination, Plaintiff could not afford to keep her car. She attempted to transfer the lease and was finally successful in doing so in April 2014. [5] [ 25 ] On December 24, 2015, she sent Mr. Stavrakis a letter of demand [6] requesting payment of $4,044 for :

a) French tutoring (18 hours@$25/hour) - $450

b) Car payment support (10 months at $200/month) - $2,000

c) Car insurance support (50% of $1,508) - $794

d) Cost to list the car on Lease busters - $300

e) Lease transfer fees - $500. [ 26 ] She filed her claim on October 3, 2013. ANALYSIS

a) Was Plaintiff entitled to a car allowance as part of her employment? [ 27 ] Defendants admit the claim relating to the French tutoring sessions and Plaintiff is entitled to $450 in this regard. [ 28 ] To succeed on the remainder of her claim, Plaintiff must first prove, on a balance of probabilities, [7] that she was entitled to a $200/month car allowance and to 50% of the annual insurance cost as part of her employment contract. [ 29 ] Where there is no written contract and the parties rely on conflicting oral evidence, as is the case here, the Court must consider the probative value of the evidence and decide liability on the basis of the most probable facts. [8]

[ 30 ] According to Plaintiff, Mr. Stravrakis led her to believe, prior to hiring her, that the cost of a car would be covered in part by MTW and later agreed to the $200/month allowance and to paying half of the insurance cost during her first week at MTW. She claims that she signed a car lease relying on Mr. Stavrakis’ representations and promises in this regard, as well as on his representations regarding her new position and advancement possibilities at MTW. [ 31 ] In the written contestation filed in the Court record, Defendants deny any undertaking in relation to a car allowance. [ 32 ] At trial, Mr.

Stavrakis initially maintained this position, suggesting that he only intended to help Plaintiff find a car for which she would be fully responsible. When questioned by the Court, however, he admitted that he did undertake to help Plaintiff with car payments, but claimed that this help was only intended to begin once she had worked her way up from a “lower-level, mid-level person to a higher level person” at MTW.

He stated that this could take “a couple of months or years”. [ 33 ] He also admitted that he could have told Plaintiff to go ahead and confirm the insurance coverage offered and that they would later work out who was going to pay. [ 34 ] The Court prefers Plaintiff’s version of the facts and considers it more probable than that of Mr. Stravrakis for the following reasons. [ 35 ] Firstly, Plaintiff has a detailed recollection of events and her testimony is corroborated by the scarce documentary evidence available. [9] By contrast, Mr.

Stavrakis’ recollection of events is sketchy at best; he admitted several times at trial that he did not recall what he said to Plaintiff and this affects his credibility as to what he claims to remember. [ 36 ] Secondly, it seems improbable to the Court that Plaintiff would sign a 4-year lease for a new car that she admittedly could not afford, without the assurance that part of the cost would be paid by MTW. [ 37 ] Finally, on the preponderance of the evidence, Mr. Stavrakis paid the $200 allowance to Plaintiff in April and in May 2013.

These payments constitute an admission that Plaintiff was entitled to this allowance and add to the credibility of her testimony that Mr. Stavrakis undertook to pay for 50% of the insurance costs. [ 38 ] The Court concludes, consequently, that Plaintiff was entitled to the $200/month car allowance and to the reimbursement of 50% of the annual insurance as part of her employment contract.

b) Did Defendants commit a fault towards Plaintiff and if so, are they liable for the damages claimed? [ 39 ] The contract between Plaintiff and MTW is a verbal employment contract for an indeterminate term. [10] [ 40 ] Under the applicable law, an employer has the discretionary right to terminate an employment contract with an indeterminate term unilaterally and without cause if it provides adequate prior notice to the employee. [11] It can even do so without prior notice if there is serious reason to terminate the contract. [12] [ 41 ] An employer who provides adequate notice or can prove that there was serious reason to terminate an employment contract will not be liable towards the employee as a result of the termination. [ 42 ] That being said, employers are bound by an obligation to act in good faith towards their employees at all stages of an employment contract (when the contract is formed, during its execution and at the time of termination). [13] [ 43 ] Even where adequate prior notice is given or where a serious reason justifies termination, an employer may therefore be liable if its conduct towards the employee is considered malicious or intentionally prejudicial or simply careless or negligent, as such conduct violates the employer’s obligations of good faith. [ 44 ] In the instant case, Defendants claim that there was serious reason for Plaintiff’s sudden termination on May 17, 2013, but they failed to prove this to the satisfaction of the Court. [ 45 ] Mr.

Stavrakis testified that there had been many client complaints about Plaintiff, but no evidence of such complaints was provided other than his general statement. He also claims that she was not “blending well” with other employees, but this is clearly insufficient to justify her sudden dismissal after only a few weeks at MTW. [ 46 ] Her dyslexia is a more serious issue. Plaintiff claims that it affected only a small portion of the tasks that she was hired for and that it was getting under control; Mr.

Stavrakis claims that it was the cause of some billing errors and justified her immediate dismissal. [ 47 ] On the preponderance of the evidence, the Court is of the view that Plaintiff’s dyslexia did not justify her immediate dismissal without notice, and that it was raised as an excuse to terminate her employment.

Notably, Plaintiff was dismissed within 48 hours of disclosing her condition and was not given a reasonable opportunity to demonstrate that she could adjust and complete her tasks despite her condition. [ 48 ] Moreover, the Court is of the view that the representations made in the context of Plaintiff’s hiring and the manner in which she was suddenly dismissed amount to careless and negligent conduct and constitute a violation of MTW’s obligation to act in good faith. [ 49 ] Mr.

Stavrakis knew that Plaintiff had stable employment; he knew that she was not interested in a secretarial-level position, but in a position that could be a career for her; he described the position offered as exactly that, with ample opportunity for Plaintiff to make her way up into MTW management, which was not the case. He also knew, prior to hiring Plaintiff, that she could not afford a car on her own, yet he encouraged her to take on a 4-year lease, only to allow MTW to suddenly and offhandedly dismiss her only weeks after she was recruited. [ 50 ] It should be noted that in doing so, Mr.

Stavrakis acted as the representative of MTW and engaged MTW’s liability only. As a

result, it is MTW who committed a fault towards Plaintiff and who is liable for the damages resulting directly from said fault. [14] The evidence provided does not establish the personal liability of Mr. Stavrakis. [ 51 ] As for the damages claimed regarding the car, Plaintiff has proven to the satisfaction of the Court that they are the direct and immediate consequence of MTW’s fault. Plaintiff proved that she mitigated the damages are required by law [15] by transferring the lease of her car to a third party in June 2014 and she is entitled to claim the costs incurred in her mitigation effort. [ 52 ] Plaintiff is therefore entitled to the following amounts:

a) French tutoring (18 hours@$25/hour) $450

b) Car payment support (10 months at $200/month) $2,000

c) Car insurance support (50% of $1508) $794

d) Cost to list the car on Lease busters $300

e) Lease transfer fees $500 TOTAL $4,044 FOR THE REASONS, THE COURT: GRANTS the action in part. CONDEMNS Defendant Montreal Tank Wash inc. to pay to Plaintiff Cielo Fortin-Camacho the amount of $4,044.00, together with interest at the legal rate and the additional indemnity provided by law from October 3, 2013; DISMISSES the action against Defendant Ted Stavrakis; WITH COSTS of $136 in Plaintiff’s favour, representing the judicial stamp on the Application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: June 25, 2015 (taken under advisement on July 2, 2015)