2014 QCCQ 13273, 2014 QCCQ 13273

Crisan c. Icongo 2014 QCCQ 13273 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-131920-128 DATE: December 9, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ MIHAELA (MICHELLE) CRISAN […] Calgary, AB […] Plaintiff v.

ICONGO 999 de Maisonneuve Boulevard West 3 rd Floor Montreal, Quebec, H3A 3L4 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Mihaela Crisan, sues the Defendant Icongo, alleging that she accepted employment with Icongo on January 27, 2011, and that the employment was then withdrawn without cause by Icongo on or around February 12, 2011. [ 2 ] She alleges that after accepting the employment, she resigned from her then current employment and, as a result of the withdrawal of the employment contract she sustained a loss of seven weeks pay until she could find alternative employment. [ 3 ] She sues for $ 7,000.00, the limit in the Small Claims Division. [ 4 ] The employment was withdrawn by Icongo because Ms Crisan could not prove that she was making more than $ 55,000 with her former employer.

She asserts that this requirement to prove her previous salary was introduced after the employment contract with Icongo was formed and that her inability to provide this proof was not a valid reason for reneging on the employment agreement. [ 5 ] Icongo contests the demand alleging that, in the interviews that led to the employment offer, Ms Crisan provided untrue information concerning the annual salary she earned with her former employer and that, based on this information, Icongo offered her a competitive salary. [ 6 ] Icongo alleges that when it learned that this information was untrue, this resulted in a definitive rupture of the confidence that was necessary for the formation of the contract and for the ongoing employment and that it was therefore justified in withdrawing its employer offer. [ 7 ] At the hearing, Icongo’s representative introduced another element into the case, the idea that the employment contract was, in fact, not yet formed.

ISSUES [ 8 ] To resolve this case, the Court must determine: 1) Was an employment contract formed between the Plaintiff and the Defendant?

2) If so, was the Defendant justified in terminating this contract because of false representations made by the Plaintiff? 3) If the termination is not justified, what is the fair measure of damages suffered by the Plaintiff? [ 9 ] In November 2011, Ms Crisan was recruited by a head-hunter known as Teksystems, whose client, Icongo, required a systems analysis. At the time, Ms Crisan was working for a firm known as Jesta, a software development company, as a senior business analyst. [ 10 ] She had a screening interview with an employee of Teksystems and, on December 6, 2011, was interviewed by Andrée Coutu, H.R.

Manager at Icongo. In January 2012, she was interviewed by a V.P. Operations of Icongo, Isabelle Desjardins, the person who would be her manager, should she become employed. [ 11 ] Ms Crisan testifies that in the meeting with Isabelle Desjardins, she stated her salary expectations as being in the range of $ 70,000 to $ 80,000 per year. She recalls that Isabelle Desjardins told her that this was in the high end of their range. On January 7 to January 21, she was aware that Lindsay French from Teksystems was contacting her references and on January 21, she had an interview with Josh Ostega, an executive V.P.

Business Operations from Icongo. [ 12 ] On January 27, she was given an employment agreement to sign through her contact at Teksystems who told her that she had the job. The agreement provided for a annual salary of $ 75,000. The next day, she resigned from her employment with Jesta giving two weeks notice. [ 13 ] The agreement was dated January 26, 2011 with the employment to commence on February 14, 2011. [ 14 ] On February 4, she received an email from Mitchell Young of Teksystems (P-2).

The email informed her that, at Icongo “they are having some “Policy” changes that are being implemented and doing some “trial and error” approaches to it as they grow to from an HR perspective”. [ 15 ] Essentially, the email calls upon Ms Crisan to provide her new employer with evidence of her current salary with her previous employer, ostensibly for reasons that relate to Icongo’s desire to create consistency in the pay scale with comparable employees.

It states “Lindsey mentioned that you received a raise recently so a T4 or anything wouldn’t be relevant anyway, but do you have perhaps your raise letter or anything stating your salary that their HR could keep for negotiating future candidates?” [ 16 ] This unusual request left Mr Crisan in a difficult position. When she asked her previous employer for proof of her income, her request was met with a refusal.

Absurdly, Ms Crisan had been asked by her previous employer what her new pay would be with Icongo and she gave that information. [ 17 ] She replied to Mitchell Young suggesting that she could give a copy of her bank statement showing the deposit of her net pay from which Icongo could derive the gross salary. [ 18 ] After providing this information on February 9, she then learned on February 11 from Teksystems that Icongo expected her to provide proof that she earned at least $ 55,000 annually with Jesta, otherwise, she should not show up for work.

It was at this point that she asked for a letter from her employer, who refused. [ 19 ] In an email of February 12, Mitchell Young, writes: “Barrett received a call from Icongo and they have some very bad news. While doing their employment equity, they believe that they were mislead to believe that you were making much more than your actual salary at Jesta and unless you could prove that you were making more than 55,000$ at JESTA, we need to inform you that Icongo currently wants to renig (withdraw) on their employment offer to you.

They believe unless you can prove a higher salary, there has been a breach of trust that was established between you and Icongo […] In the mean time, Icongo does not want you to show up on Monday.” The letter ends with the greeting: “My most sincere regrets, Mitch.” [ 20 ] Ms Crisan testifies that, at no time in the job interview process, did she state what her previous employment income was. Rather, she stated her salary expectations, sincerely stating that below a certain number, it would not be worth her while to change jobs.

She explained to the Court that the two jobs were different; the job at Icongo involved more unremunerated time and, at her previous employer, there was a very liberal expense account policy that enabled her to obtain, indirectly as it were, a higher revenue that which was shown on her net pay check. [ 21 ] The defence was presented by Betty Venco, human resources counsellor for SAP, the firm that acquired Icongo through a series of transactions, and which stands behind the former entity in the payment of its debts.

The Court assumes therefore that SAP will recognise its responsibility in connection with the present judgment. [ 22 ] Icongo’s position is that Ms Crisan told Andrée Coutu, during the interview process, that she earned between $ 65,000 and $ 68,000, and that she expected to earn $ 75,000 at Icongo. [ 23 ] Icongo’s position is that the employment agreement, that was not yet signed by Icongo, was remitted to the president for signature.

Through contact with someone he knew at Jesta, he learned that Ms Crisan earned between $ 55,000 and $ 57,000. [ 24 ] This led the president to suspect that Ms Crisan had lied during the interview. Mrs Venco explained to the Court how important it was for Icongo that a person occupying the position for which Ms Crisan was being hired be a person of the utmost integrity.

She explained to the Court that Icongo then asked through Teksystems for proof that Ms Crisan, in fact, earned more than the amount that their president had been told was her current salary. [ 25 ] The data that was eventually provided showed that her previous income was not higher than $ 55,000 and the loss of confidence was complete. Icongo decided it could no longer employ Ms Crisan. [ 26 ] There is no indication in Icongo’s records as to the identity of the person at Jesta whom its president, Irwin Kramer, had spoken.

[ 27 ] Mr Kramer did not testify and in fact, Betty Venco was not an employee of Icongo at the time. [ 28 ] Be that as it may, Ms Venco considers the difficulties that Ms Crisan claimed to have experienced in obtaining proof of her income as not being sincere: for her the bond of confidence must have been broken between Icongo and the Plaintiff. [ 29 ] The Court also heard from Sophie Laval, Director of Human Resources at the time of the events, and currently as well. She told the Court that Andrée Coutu left the employ of Icongo shortly after the events of this case.

The Court questioned Sophie Laval about the knowledge of what Ms Crisan might have said about her salary with Jesta. She confirmed that nothing about this was documented in the files of the company. She provided a copy of Michelle Crisan’s CV prepared on Telesystem’s letter-head. [ 30 ] The document is annotated, presumably by Andrée Coutu. There is no mention of a salary revindication or any indication of what Ms Crisan’s salary in her previous employment might have been. [ 31 ] Sophie Laval remembers having spoken to someone at Teksystems Ottawa office.

This person, whose name she cannot remember, would have told her that Ms Crisan gave Teksystems an indication of her then current salary. [ 32 ] Finally, Ms Laval showed the Court an email exchange with Andrée Coutu that occurred in 2012, after the conflict between the parties emerged. According to that exchange, Andrée Coutu would have remembered that she had learned that the Plaintiff had represented, in the course of the negotiations, that her salary was more substantial than what the company eventually learned it to be. [ 33 ] Andrée Coutu did not testify at the hearing.

ANALYSIS Contract formation [ 34 ] In her testimony, Sophie Laval stated that Icongo’s practice was to present a contract form signed by the would-be employee and then submit it to the president for signature. She implied that the contract would not actually be formed until the president signed it.

She was unaware however of what dealings Teksystems had with the Plaintiff concerning her employment contract. [ 35 ] In the Court’s view, the contract was formed when Teksystems informed the Plaintiff that she was being offered the position at $ 75,000 a year and submitted to her a contract form consistent with that offer that she then signed. As soon as that acceptance was made and communicated back to Icongo, the contract was complete. [ 36 ] The Plaintiff was perfectly justified in treating the contract as being formed and terminating her employment with her previous employer.

The termination of the contract [ 37 ] The process by which Icongo terminated the contract before the starting date is rather unusual. [ 38 ] According to the hearsay evidence given, the former employer informed Icongo’s president that she had only earned something in the neighbourhood of $ 55,000. The proof of this is inadmissible and completely unreliable.

The two witnesses the Court heard were offering, as fact, the content of a statement from an undisclosed person to the president that was past on, by the president, to human relations who then past the information on to the witness. [ 39 ] This is triple hearsay in the case of the testimony of Sophie Laval to the extent that it is based on the statement of Andrée Coutu and quadruple hearsay when the Court is hearing about the statement from Betty Venco. Sophie Laval may have heard it from the president but, in that case it is still double hearsay.

The proper witness would have been a person from the former employer aware of the facts. [ 40 ] So much for the proof that the Plaintiff earned $ 55,000 a year. The Plaintiff’s testimony is that her base salary was complemented with the perk of having access, very liberally, to an expense account.

It would therefore have been impossible for her to prove the net value of her total pay package, even if this was something she was obliged to do. [ 41 ] The evidence that she made misrepresentations about her then current salary is not only inadmissible but also lacking in any probative value. [ 42 ] If this was an important element for Icongo at the time of the interview process, it should have been documented.

It was neither documented by Teksystems nor by Icongo’s human-resources department and no witness aware of the statement was called upon by Icongo to testify. [ 43 ] Icongo recruited a person for a job using a headhunter who asked how much she intended to earn and offered an amount within the range requested, in order to entice her to leave her employment and come over to their side. [ 44 ] What we are told happened is that someone influential at her former employer contacted directly Icongo’s president, presumably because they were part of a network, and said something that caused Icongo to change its mind. [ 45 ] What exactly was said, and even whether such a conversation took place, was not proved in this case. [ 46 ] The allegation in this case that Ms Crisan was dishonest, that she had lied or even that she had misled Icongo, is a rather serious allegation of bad faith.

Icongo has failed totally to give any admissible or credible evidence to establish this. [ 47 ] As well, the Court is not convinced that a person’s former salary is really a principal consideration for an employer and, in the case of Icongo, the fact that this information was in no way documented tends to show that it probably was not a principal consideration

for Icongo either. [ 48 ] The manner in which Teksystems requested the information, ostensibly as an afterthought having to do with a new policy that Icongo wanted to implement to track the salary ranges for its various employees, tends to demonstrate that it was not at all part of Icongo’s policy at the time the employment took place. [ 49 ] In any event, no one from Teksystems testified.

It is impossible to show that Teksystems was told anything in particular by the Plaintiff about the salary she earned at her previous employment. [ 50 ] The Court finds, therefore, the evidence does not establish that Icongo had a reason to terminate the employment relationship. Prejudice [ 51 ] Ms Crissan’s prejudice consists, essentially, of seven weeks income at the rate of $ 75,000 per year. This amounts to approximately $ 10,100: the Plaintiff reduced her claim to $ 7,000 to take advantage of the jurisdiction of the Small Claims Division.

FOR THESE REASONS, THE COURT: CONDEMS the Defendant to pay to the Plaintiff the amount of $ 7,000, with interest at the legal rate plus the additional indemnity provided for in

article 1619 of the Civil Code of Québec , calculated from February 14, 2011; CONDEMNS the Defendant to pay the Plaintiff’s judicial fees of $ 163.00. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: October 20, 2014