2019 QCCQ 745, 2019 QCCQ 745

Avila c. Centre de la petite enfance Shalom 2019 QCCQ 745 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-701434-179 DATE: February 8, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ ELENITA AVILA Plaintiff v.

CENTRE DE LA PETITE ENFANCE SHALOM Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Elenita Avila claims from Centre de la petite enfance Shalom (“ CPE Shalom ”) $12,890 in damages on the grounds that she was unjustly dismissed from her employment as an educator at the daycare. [ 2 ] CPE Shalom argues that the claim is unfounded because Mrs. Avila had a fixed term employment contract and her employment period was not renewed at the expiry of the term.

Alternatively, it argues that she was offered a new position with substantially the same terms of employment which she unjustifiably refused. Issues

a) Was the contract of employment a fixed term contract?

b) Did Mrs. Avila resign by not accepting the new position that was offered to her in August 2016 or was she constructively dismissed?

c) Did CPE Shalom have serious reasons to unilaterally resiliate the contract of employment without prior notice?

d) If CPE Shalom did not have a serious reason to resiliate the contract, what length should the notice of termination have been? Context [ 3 ] CPE Shalom operates a daycare. At all times relevant to these proceedings, Hallie Moyse was its executive director. [ 4 ] On August 3, 2015, Mrs. Avila entered into a written contract of employment with CPE Shalom and was hired as an educator at the daycare (“Contract of Employment” or “Contract”). [1] The Contract stipulates that the period of employment is from August 24, 2015 to August 26, 2016. [ 5 ] In August 2016, at the expiry of the Contract of Employment, Mrs.

Avila’s position at CPE Shalom was not renewed. [ 6 ] CPE Shalom paid her $1,080, or the equivalent of two weeks salary, in lieu of notice. [ 7 ] Mrs. Avila claims that she was entitled to a prior notice of six months and therefor claims $14,040 (26 weeks x $540 per week) in lieu of notice, less the two weeks salary she received at the expiry of the contract. [ 8 ] On or about February 9, 2017, Mrs. Avila sent a demand letter to CPE Shalom. [ 9 ] By letter dated February 27, 2017, CPE Shalom responded to her demand letter and denied all liability. [ 10 ] In April 2017, Mrs.

Avila filed her claim with the Court of Québec, Small Claims Division.

Analysis and Decision

a) Was the contract of employment a fixed term contract? [ 11 ] A contract of employment is either for a fixed term or an indeterminate term. [2] [ 12 ] The distinction is important because where the contract of employment is for an indeterminate term, the employer may terminate it, but only if it gives the other party a reasonable notice of termination, unless it had a serious reason to resiliate it. [3] [ 13 ] On the other hand, where the contract of employment is for a fixed term, it expires at the arrival of the term and the employer is not obliged to give the employee a notice of termination. [4] [ 14 ] In the present case, if the Court concludes the Contract of Employment between CPE Shalom and Mrs.

Avila was for a fixed term, her claim against the daycare will be dismissed considering that she worked up to and was paid up to the arrival of the term of the contract. [ 15 ] However, if the Court concludes that it was an indeterminate term contract, then the Court must determine whether the employer had serious reasons to resiliate the Contract of Employment, and if did not, what reasonable notice of termination her employer should have given Mrs. Avila. [ 16 ] The Contract of Employment between Mrs. Avila and CPE Shalom provides as follows: 1.

Terms of Contract: The CPE engages the Employee as an Educator for the following term (The ‘Term’): Commencement date of Contract: August 24, 2015; Completion date of Contract: August 26, 2016. It is understood that this Contract terminates at the date indicated above. Neither the Employee nor the CPE is under any obligation to renew the Contract for the following year. Either party may terminate the ‘Contract’ in writing with two (2) weeks of prior notice . [Underlining added] [ 17 ] The evidence also establishes that Mrs. Avila has been employed by CPE Shalom since July 2011.

Every year since 2011, she signed contracts of employment with a one year term. The contract of employment which has given rise to the present litigation was the fifth contract of employment she had signed with CPE Shalom. [ 18 ] Considering the five renewals of the one year term contracts, and considering that the Contract contains a provision whereby either of the parties may terminate it by providing two weeks prior notice, the Court concludes that the Contract of Employment was for an indeterminate term. [5] [ 19 ] Accordingly, CPE Shalom could only terminate Mrs.

Avila’s contract of employment without prior notice if it had a serious reason to resiliate it (2094 C.C.Q. ), or alternatively, by giving her a reasonable notice of termination.

b) Did Mrs. Avila resign by not accepting the new position that was offered to her in August 2016 or was she constructively dismissed? [ 20 ] CPE Shalom argues that it did not terminate Mrs. Avila’s contract of employment, but rather, that she was offered a different position within the daycare which was substantially similar in conditions to her previous position, which she refused. Hence, CPE Shalom argues she voluntarily left her employment. [ 21 ] Mrs.

Avila admits that she was offered an alternative position within the daycare facility, but she refused it because she contends that the conditions of employment were substantially different. [ 22 ] Did Mrs. Avila resign by refusing the new position or was she constructively dismissed? [ 23 ] In Farber v.

Royal Trust Co . [6] , the Supreme Court of Canada addressed the concept of constructive dismissal as follows: where an employer decides unilaterally to make substantial changes to the essential terms of an employee’s contract of employment and the employee does not agree to the changes and leaves his or her job, the employee has not resigned, but has been constructively dismissed. By unilaterally seeking to make substantial changes to the essential terms of the employment contract, the employer is ceasing to meet its obligations and the employee can treat the contract as resiliated for breach and can leave.

In such circumstances, the employee is entitled to compensation in lieu of notice and, where appropriate, damages. [ 24 ] The Supreme Court adds that to reach the conclusion that an employee has been constructively dismissed, the court must therefore determine whether the unilateral changes imposed by the employer substantially altered the essential terms of the employee’s contract of employment.

For this purpose, the judge must ask whether, at the time the offer was made, a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed. [ 25 ] The Contract of Employment between CPE Shalom and Mrs. Avila provides that she is hired as an educator for a 25 hour per week schedule, from 1:00 PM to 6:00PM at an hourly rate of $17.98. [7] [ 26 ] In August 2016, when the term of her Contract was approaching, she was offered a new position as an integration aide at the daycare.

This position entails being assigned to a child with special needs, as opposed to an educator who is responsible for a group of

children. [ 27 ] Mrs. Moyse states that the new position was for the same number of hours and salary. Mrs. Avila denies this and claims that the new position she was offered was for 15 hours per week. [ 28 ] Mrs.

Avila’s position is corroborated by CPE Shalom’s February 27, 2017 response to her demand letter, where Shalom’s lawyer writes “I am informed you were offered a position of 15-20 hours per week as an integration aide…” [8] [ 29 ] Applying the test set forth in Farber , the Court believes that a drop of 20% of the weekly work hours (with a corresponding 20 % decrease in salary) along with a change of responsibilities (educator versus integration aide) constitutes, from the perspective of a reasonable person, a unilateral change which substantially alters the essential terms of Mrs.

Avila’s contract of employment. [ 30 ] Accordingly, the Court concludes that Mrs. Avila was constructively dismissed in August 2016 when she was offered the new position.

c) Did CPE Shalom have serious reasons to unilaterally resiliate the contract of employment without prior notice? [ 31 ] In Lefebvre v. Immeubles Saga [9] , Justice D. Gibbens summarized what is meant by the term “serious reason” found in

article 2094 C.C.Q. as follows: Les auteurs et les tribunaux se sont fréquemment penchés sur le sens à donner à l’expression « motif sérieux » dans le contexte d’un congédiement. Les principes suivants peuvent être dégagés de leur analyse :

a) La notion de « motif sérieux » à l’

article 2094 C.c.Q. équivaut à la notion de « cause juste et suffisante » développée par la jurisprudence;

b) Un motif sérieux est une faute grave commise par l’employé se rapportant à sa conduite ou à son défaut d’exécuter le travail. Il y a motif sérieux si l’acte reproché est en soi grave (conduite répréhensible telle la fraude, l’insubordination grave, la négligence grossière, le manquement à une obligation essentielle du contrat, etc.) ou qu’on peut le qualifier ainsi compte tenu de son contexte ou de l’impact sur l’employeur;

c) Pour constituer un motif sérieux, le manquement doit être d’une gravité telle qu’il est incompatible avec le maintien du contrat d’emploi, même pour la durée du préavis que l’employeur est normalement tenu de donner avant de congédier son employé;

d) Si le reproche formulé est la violation d’une obligation contractuelle, il doit s’agir d’une obligation essentielle du contrat;

e) Si le reproche formulé est l’insatisfaction quant au rendement de l’employé, l’employeur doit démontrer clairement et objectivement l’incompétence ou l’incapacité de l’employé à atteindre les objectifs préétablis. Il doit aussi démontrer que l’employé a été informé des attentes à son endroit, qu’il a été prévenu à l’avance qu’il pourrait être congédié si son rendement ne s’améliorait pas et qu’il a bénéficié d’une opportunité raisonnable de s’améliorer;

f) Le fardeau de prouver l’existence d’un motif sérieux repose sur l’employeur. (Citations omitted) [ 32 ] Where an employer claims that the employee’s poor performance (i.e. lack of proficiency in French) constitutes the serious reason for the termination, the employer must demonstrate in a clear and objective fashion the employee’s inability to achieve pre-set goals.

It must also show that the employee has been informed of expectations, that he has been warned in advance that he may be dismissed if his performance does not improve, and that he has received reasonable opportunity to improve [ 33 ] Applying this test to the facts at hand, the Court considers that CPE Shalom has not met it. [ 34 ] CPE Shalom argues that Mrs. Avila’s lack of knowledge of the French language constitutes the serious reason for not renewing her employment contract. [ 35 ] However, CPE Shalom did not adduce evidence that it warned Mrs.

Avila that her continued employment at the daycare required her to improve her knowledge of French. According to Mrs. Avila, Mrs. Moyse raised her lack of French proficiency for the first time in August 2016. This testimony is credible and unrefuted. [ 36 ] Nor did CPE Shalom prove that it told Mrs. Avila that if she did not improve her French proficiency, she would be dismissed. [ 37 ] Accordingly, CPE Shalom did not have a serious reason to terminate Mrs. Avila’s contract of employment. She is entitled to compensation in lieu of notice of termination. This issue will be addressed below.

d) If CPE Shalom did not have a serious reason, what length should should the notice of termination have been? [ 38 ] Considering that CPE Shalom did not have serious reasons to unilaterally terminate the contract of employment, it could nonetheless do so long as it provided her with a reasonable prior notice prior to August 27, 2016. [ 39 ] In the instant case, Mrs. Avila was provided with two weeks’ pay or $1,080 in lieu of notice. Is this notice reasonable? [ 40 ] According to paragraph 2 of

article 2091 C.C.Q. , “the notice of termination shall be given in reasonable time, taking into account, in particular, the nature of the employment, the specific circumstances in which it is carried on and the duration of the period of work.”

[ 41 ] To determine the reasonableness of a notice period, case law has established that the court must review a number of factors including: the circumstances in which the person was initially hired, the nature and level of importance of the work, whether or not the employee left a previously remunerated position, the intention of the parties, the difficulty of the employee in finding a new employment after the dismissal, the number of years of service, and the age of the employee at the time of the dismissal. [10] [ 42 ] In the instant case, the Court has considered the following: • Mrs.

Avila joined the daycare in 2011 after completing her studies in early childhood education and interning at CPE Shalom; • She had been an employee of CPE Shalom for five years when she was constructively dismissed; • She was 61 years old at the time; • She did not hold a mid-level or senior management position within the daycare; • She was unemployed from August 27, 2016 until March 1, 2017, date on which she found a new job. [ 43 ] Considering all these factors, the Court concludes that Mrs.

Avila was entitled to four weeks’ notice of termination or the equivalent of four weeks’ pay in compensation in lieu of notice. [ 44 ] Since she already received from CPE Shalom two weeks’ pay when her employment was terminated, the Court will award Mrs. Avila two weeks’ additional pay, which corresponds to $1,080. FOR THESE REASONS, THE COURT: [ 45 ] GRANTS in part Elenita Avila’s claim; [ 46 ] ORDERS Centre de la petite enfance Shalom to pay to Elenita Avila $1,080 with interest at the legal rate plus the additional indemnity provided for in

article 1619 of the Civil Code of Québec , calculated as of February 20, 2017; [ 47 ] WITH LEGAL COSTS of $200 payable by Centre de la petite enfance Shalom to Elenita Avila. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: October 16, 2018