2021 QCCQ 1093, 2021 QCCQ 1093

Vlassopoulos c. JSS Medical Research Inc. 2021 QCCQ 1093 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Civil Division No: 500-32-709887-196 DATE: February 22, 2021 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD, J.C.Q. ______________________________________________________________________ GERASIMOS VLASSOPOULOS Plaintiff v.

JSS MEDICAL RESEARCH INC. and JOHN SAMPALIS and STELLA BOUKAS Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff alleges that he was not paid for overtime work performed in accordance with the written employment agreement he concluded with JSS Medical Research Inc. ( JSS ). [ 2 ] Subsidiarily, the Plaintiff alleges that he was not paid by Defendants John Sampalis and Stella Boukas for work performed on their personal buildings or those of their family members, as a result of which he suffered “moral damages and mental anguish". [ 3 ] In its contestation, JSS argues that the employment agreement with the Plaintiff was based on an annual remuneration, without reference to the number of hours worked per week, which in any event never exceeded 35 hours. [ 4 ] For their part, Defendants Sampalis and Boukas deny having entered into a parallel verbal agreement to the employment agreement between the Plaintiff and JSS.

On the contrary, they acknowledge the Plaintiff's admission contained in his claim that, by virtue of this employment agreement, he could be called upon to perform certain maintenance work on the personal properties of Mr. Sampalis, Ms. Boukas and their close relatives. ISSUES [ 5 ]

a) Is the Plaintiff's claim for overtime under the employment agreement with JSS prescribed?

b) Does the Plaintiff establish the existence of a verbal agreement with Defendants Sampalis and Boukas for maintenance work related to their personal properties or that of their close relatives?

c) Does the Plaintiff prove moral damages as a consequence of the Defendants' actions?

CONTEXT AND ANALYSIS [ 6 ] Effective September 12, 2016, the Plaintiff's services are retained by JSS as a Maintenance Associate under a written employment agreement. [ 7 ] This agreement provides for a salary of $40,000 annually, without specifying the number of hours worked per week. [ 8 ] As the Plaintiff acknowledges, at the time this employment agreement was signed, Defendants Sampalis and Boukas informed him that he would have to perform certain work on their personal properties or that of their close relatives, again in the context of his employment agreement with JSS. [ 9 ] In April 2017, the Plaintiff is victim of a work accident that prevents him from working for the Defendants until 2019, when his employment agreement terminates with JSS, which is unable to reinstate him in another job due to his state of health. [ 10 ] It was not until early August 2019 that the Defendants were given formal notice by letter from the Plaintiffs' lawyers, who claimed payment for 204 hours of overtime work, 19 of which were for the benefit of JSS and 185 for work performed for the Defendants Sampalis and Boukas, for a total amount of $6,723. [ 11 ] With respect to the Plaintiff's claim for overtime resulting from the employment agreement between him and JSS, the Court cannot grant it since it is prescribed.

Indeed, the overtime claimed by the Plaintiff begins in September 2016 and ends in April 2017. He introduced his action in the present instance on August 21, 2019.

[ 12 ]

Section 115 of the Act respecting labour standards provides as follows [1] : 115. A civil action brought under this Act or a regulation is prescribed by one year from each due date.

This prescription runs only from 1 May following the date of execution of the work in respect of employees engaged in logging operations . [ 13 ] Consequently, the Plaintiff's claim for overtime worked for JSS is late. [ 14 ] In answer to the second question at issue, the Court concludes that the Plaintiff does not relieve himself of the burden of establishing the existence of a verbal agreement with Defendants Sampalis and Boukas for the maintenance of their personal properties and that of the members of their close relatives. [ 15 ] Articles 2862 and 2865 of the Civil Code of Québec ( C.C.Q. ) provide as follows [2] : 2862.

Proof of a juridical act may not be made, between the parties, by testimony where the value in dispute exceeds $1,500. However, in the absence of proof in writing and regardless of the value in dispute, proof may be made by testimony of any juridical act where there is a commencement of proof; proof may also be made by testimony, against a person, of a juridical act executed by him in the ordinary course of business of an enterprise. 2865.

A commencement of proof may arise from an admission or writing of the adverse party, his testimony or the production of real evidence, where it renders plausible the alleged fact. [ 16 ] Thus, since the value of the present claim exceeds $1,500, the Plaintiff had to prove "a commencement of proof" of the Defendants to establish the existence of a verbal agreement other than the written employment agreement with JSS. [ 17 ] The evidence does not reveal any writing or admission of the Defendants establishing the existence of a verbal agreement concurrent with the written employment agreement with JSS. [ 18 ] In any event, the Court takes note of the Plaintiff's admission that, at the time of signing the employment agreement with JSS, he was informed that he would have to perform certain maintenance work on the personal properties of Defendants Sampalis and Boukas or on that of certain members of their family. [ 19 ] Moreover, it is surprising that the Plaintiff can bill for overtime, 204 in number, when he does not establish any agreement of the Defendants to perform these overtime hours or any authorization in this regard. [ 20 ] In addition, the Court notes that the Plaintiff's claim for overtime was made more than two years after the overtime hours claimed, confirming the position of the Defendants that the claim is ill-founded in fact and in law. [ 21 ] Finally, the Court concludes that the Plaintiff does not discharge its burden of establishing, by preponderance of evidence, the commission of any fault on the part of the Defendants that could have caused him "moral damages and mental anguish". [ 22 ] On the contrary, the evidence reveals that JSS and its representatives, Defendants Sampalis and Boukas, complied fully with the employment agreement and did not obstruct the Plaintiff after his work accident. [ 23 ] As a result of all the foregoing, the Court has no choice but to dismiss the Plaintiff's claim.

However, exercising its judicial discretion, the Court does not impose any costs. FOR THESE REASONS, THE COURT: DISMISSES Gerasimo Vlassopoulos’ claim against JSS Medical Research Inc., John Sampalis and Stella Boukas, each party paying its own costs. __________________________________ Henri Richard, J.C.Q Date of hearing: February 8, 2021