2014 QCCQ 2878, 2014 QCCQ 2878

Barker c. Pelletier 2014 QCCQ 2878 COURT OF QUÉBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL «Civil Division» No: 500-32-134238-122 DATE: April 11, 2014 ______________________________________________________________________ BY THE HONOURABLE PIERRE BACHAND, J.C.Q. ______________________________________________________________________ ALANA BARKER Plaintiff v.

JOHANNE PELLETIER Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is claiming 2 264,00$ following her dismissal, based on the lack of a reasonable notice of employment and for moral damages. [ 2 ] She was employed by defendant to provide home care services for the defendant’s mother.

Hired on December 10, 2011, she was dismissed on March 2, 2012, less than three months after (56 days of work). [ 3 ] The parties were governed by a provincial government program called the “Direct allocation program” (service employment paycheque). The clientele for this program is composed of handicapped or frail persons whose state of health requires long term home care services. [ 4 ] The program sets a number of rules which the providers and users of home care must follow.

The Health and social services center (CSSS) in return pays the remuneration. [ 5 ] The program fixes the terms and conditions of employment such as the intervention plan, the allocated hours, the hourly wage, the annual vacation leave’s length, the family or parental leave, the notice of termination of employment.

For three months to one year of uninterrupted service, the period of notice is one week. [ 6 ] Most of this is copied from the Act Respecting Labour Standards as clearly mentioned in the relevant brochures issued by the Ministère de la santé et des services sociaux for information on the program. [ 7 ] Contradictory evidence was adduced by both parties. Plaintiff testifies that her dismissal came as a complete surprise. There was never any prior discussion with defendant about any wrongdoing. She liked the job, defendant’s mother and the family.

If she had been reproached anything, she could easily have corrected the situation. But she was never provided the opportunity to mend her ways. [ 8 ] Her dismissal without any reason given and with no previous warning was felt as cruel and humiliating. [ 9 ] Her witness, Ms. Handman, has known her since 1977. She was outstanding when she took care of her mother. She was considered as the most caring, compassionate and competent care giver, not only reliable and honest but also trustworthy. [ 10 ] She also helped her witness when the latter broke a hip in 2011. Ms.

Handman was very satisfied and recommended her to other people. She respects the plaintiff and thinks very highly of her. [ 11 ] Defendant testifies that she had many conversations with her but never saw any improvement. For example, she asked her to clean the commode (portable toilet) used by her mother, the dishes and do the laundry, to no avail. [ 12 ] She did some spot checks to see if the intervention plan was respected. It was not. On occasions, her mother was still in bed

with bed clothes at the end of the morning. [ 13 ] Plaintiff stopped writing down in the log (indications, meals) provided by the defendant after some time, despite defendant’s insistence on doing so. She used improper language in front of her mother. She called the CLSC’s employees “idiots” because her first pay did not come in in due course.

She also told her mother: “Your children are going to put you in a home, ha! ha! ha!” She often used expletives. [ 14 ] She also said that she could provide her with nursing home brochures if she did not listen or comply to her instructions and she frequently referred to her as “The Queen.” [ 15 ] This led the lady to be afraid in her own home and on two occasions, she asked defendant: “Please don’t have this woman back. She makes me uncomfortable”.

When plaintiff left, she told defendant: “You did well.” [ 16 ] When defendant tried to discuss any problem with plaintiff, the employee became very emotional, sometimes cried and did not listen, as exemplified by her behaviour at the Court hearing according to defendant. [ 17 ] In February, plaintiff called defendant when the latter was attending an important job meeting, asking her to attend to her mother’s hygiene immediately, referring to “an odor from her private area”. It was plaintiff’s duty to take care of that and the mother was capable of changing her clothes by herself.

When the parties discussed that the day after, plaintiff said that she was very uncomfortable with having this kind of conversation (“Please change your clothes, etc.”) with the mother. [ 18 ] Defendant specifically asked plaintiff not to rely on junk food for her mother but plaintiff disobeyed on some occasions. [ 19 ] Defendant’s brother, Andrew J. Pelletier, is sorry he did not recommend plaintiff’s dismissal after two weeks. He came to visit about twice a week. [ 20 ] On the third week of December, he came in without prior notice.

Plaintiff told him he should have rung before, although this was the family home. He found his mother exhausted, doing the ironing plaintiff was paid for. [ 21 ] He has witnessed the plaintiff calling Ms. Leblanc (CLSC) an idiot. Chocolate stashes in the house disappeared. In February, she complained of not being paid again and she told him agressivily, pointing at him, “You will fix this”, although he did not have anything to do with that. [ 22 ] She did not follow any rules, nor family strategy. He was afraid for his mother and told the defendant that this person had to leave the house.

After she left, his mother was happy. [ 23 ] Tracy Dorion was another care giver for the mother. She started working three weeks before plaintiff. She had many conversations with her. Defendant was put under an enormous amount of stress in her home because of plaintiff. [ 24 ] The commode was not cleaned by plaintiff seven out of ten times and Ms. Dorion had to clean it herself. She spent time with plaintiff and the mother.

Very often, the mother was still in bed when she should have been up and plaintiff was watching TV. [ 25 ] She has had disagreements with plaintiff about routines not taken care of, cleaning not done. She heard her tell the mother: “I will bring you some nursing homes’ brochures if you don’t do what I ask you”. She also heard almost on a daily basis: “They’re gonna put you in a nursing home, ha! ha! ha!”. [ 26 ] Plaintiff asked her to open defendant’s mail after she was dismissed because she wanted to know who was going to be hired. [ 27 ] Denise Leblanc works for LaSalle’s CLSC for the program.

She corroborates that defendant asked her what should the notice of termination’s period be and she referred her to the brochure. The period was one week. [ 28 ] Defendant had discussed the problems with her before and mentioned her intention to dismiss plaintiff. At the beginning of the employment, plaintiff had called her all kinds of names for not getting her first paycheck. [ 29 ] Ms. Sardo was with the mother when defendant dismissed the plaintiff. The mother was very pleased when told it was over. [ 30 ] Plaintiff denies most of the defence’s evidence.

ANALYSIS [ 31 ] The application and the counter-claim should be dismissed for the following reasons. [ 32 ] First, the parties were governed by the rules set by the provincial program. They both had to accept and abide by these rules if they wanted to benefit from it. [ 33 ] Defendant fully complied with the rules pertaining to the termination period of notice. She even checked with the person in charge who confirmed that she had to give one week notice. She did. She is therefore beyond any reproach. [ 34 ] If this was not sufficient and one believed that

section 2091 C.c.Q. should be taken in account, the exemption provided by

section 2094 applies. “Art. 2091. Either party to a contract with an indeterminate term may terminate it by giving notice of termination to the other party.

The notice of termination shall be given in reasonable time, taking into account, in particular, the nature of the employment, thespecial circumstances in which it is carried on and the duration of the period of work. Art. 2094. One of the parties may, for a serious reason, unilaterally resiliate the contract of employment without prior notice.” [35] The burden of proof as to the dismissal for a serious reason relies on the employer (Sirois v. O’Neil, (QCCA), AZ-50065947, C.A., p. 21).

This serious reason was proved on a balance of probabilities. [36] There is corroborated evidence at least on the following topics: the disgraceful comments to the mother and the repeated lack ofcompliance to the rules.

It is also established that these serious breaches of loyalty were discussed by the parties but never addressedadequately by the plaintiff. [37] Defendant should have mentioned all the relevant facts in the dismissal letter but she explained the reason why she refrainedfrom doing so, fearing another anger outburst. [38] In the circumstances of this case, where plaintiff had to provide care to a frail, old age person, her conduct was far from meetingthe average standards.

The following obligation included in her brochure was clearly not met: “You must at all times act with courtesy and respect schedules, work frequency, as well as all other conditions agreed upon withthe person (the user) to whom you are providing services.” So, this was not a wrongful dismissal but rather one where a just cause was proved. [39] As for the cross-demand, it is unsupported by the evidence. FOR THESE REASONS, THE COURT: [40] DISMISSES both the application and the cross-demand, without costs. __________________________________ Pierre Bachand, J.C.Q. Date of hearing: March 23, 2014