Pointon v. North Atlantic Watersports Inc., 2022 NSSM 16

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Pointon v. North Atlantic Watersports Inc., 2022 NSSM 1 6 Date: 20220307 Claim: No. SCT 492375 Registry: Truro Between: Danielle Pointon c.o.b. Live Blue Consulting CLAIMANT and North Atlantic Watersports Inc. DEFENDANT Adjudicator: Julien S. Matte, Adjudicator Heard: February 24, 2022 (via teleconference) Counsel: Danielle Pointon, self represented Claimant Robert Thorne, self represented on behalf of Defendant Matte, Adjudicator, 1 .

This matter comes before the Court for a second time after the Defendant successfully ap- pealed a decision of this Court ( Pointon v. Thorne 2021 NSSC 293 ). In March 2019, the Defendant hired the Claimant to work at his retail store specializing in watersport equipment. The parties agree that the initial terms were for the Claimant to work from Tuesday through Saturday each week until

September 2019 at the rate of $100 plus HST per day. The parties also agree that the Claimant was entitled to an employee discount as well as the use of a Baffin Kayak during her tenure. 2 . While the parties agree on the terms of arrangement both provided different perspectives. The Claimant described herself as the manager and in a partnership with the Defendant. On the other hand the Defendant’s representative referred to the advertising used for position as recruiting a retail employee responsible for selling to customers and keeping inventory and paid at a rate of approximately $14/hr. 3 .

To support her position that she was more than a retail worker, the Claimant testified that she has a kayak racing background and is certified to officiate kayak races and used her contacts to promote the Defendant’s business. In addition the Claimant testified that from the beginning she spent additional hours outside of the agreed workdays to maintain and upgrade the Defendant’s Facebook page, develop 4-5 one minute training videos and teach one partial kayak lesson. 4 .

Twelve weeks into the arrangement in June 2019 and on the eve of the Defendant’s representative going on vacation, the parties agree that they had a discussion during the Claimant’s shift about the terms of her continued employment. Roughly at the midpoint of the initial contract which was to end in September 2019, according to the Defendant’s representative, the Claimant expressed doubt about finishing the contract and asked to discuss her compensation. According to the Claimant, the Defendants representative came to her and expressed that he knew what she wanted to achieve.

Regardless of how the conversation is characterized, the parties agree that the Claimant suggested a 4% commission on sales and that the conversation took between five and ten minutes. 5 . The parties disagree about what was actually agreed to. The Claimant says that the Defendant agreed to pay her 4% commission on sales moving forward and retroactively to April 1, 2019. The Defendant’s representative claims that he only agreed to have a discussion upon his return from vacation. 6 .

The only email relating to these discussion was sent to the Defendant’s representative by the Claimant upon his return from his vacation and as it turns out the Claimant’s last day, July 11, 2019. In the email, the Claimant advises that she would not return after the season and states “I asked for 4% return in sales towards product because you are not paying me benefits or commissions” and goes on to state “[w]e need to come to a mutually agreeable contract for the remainder of the summer…” 7 .

The parties agree that the Claimant owes the Defendant a total of $2,476.83 which reflects four outstanding invoices for product form the Defendant after subtracting unpaid wages from July 2- 11 2019. Findings 8 . The issue before the Court is narrow. The parties agree on the initial terms of their con- tract as well as the Claimant’s outstanding debt to the Defendant. It is only the Claimant’s claim of a retroactive adjustment of her wages that requires determination. The Claimant claims $6,609.90 plus HST for the period of April 1 to July 11, 2019 or a retroactive raise from $14.29/hr to $27/hr.

The claim is solely based on the contention that the Defendant agreed to this retroactive wage increase in June 2019 just before he left for vacation. 9 . However, it appears prudent that after a five minute conversation but under the pressure of the possibility of losing his staff during his busiest time of the year, the Defendant’s representative would have taken time to consider the request, particularly one nearly doubling the Claimant’s compensation. An agreement, if any, would have materialized upon his return in July 2019. 10 .

When pressed by the Court to identify the extra work to warrant her claimed retroactive compensation, the Claimant could only identify a few voluntary efforts namely maintenance of the Defendant’s Facebook page, a few one minute training videos and her promotion of the Defendant through her contacts. The parties agree that the Claimant never billed the Defendant for overtime nor was the Claimant asked to do any additional work by the Defendant. Based on these unsolicited efforts the Claimant claims a nearly 100% retroactive raise. 11 .

However, it is the Claimant’s email of July 11,2019 that betrays her assertion that there was an agreement in June 2019 to double her wage retroactively. Rather, on the last day of her employment, the Claimant acknowledges that “[w]e need to come to a mutually agree-

able contract fo the remainder of the summer…”. 12 . The Court finds that no agreement had been reached to adjust the Claimant’s wages nor is there any air of reality that the Defendant would have agreed to such a retroactive term. The Claimant’s claim is dismissed. 13 . Based on the Claimant’s acknowledgment and evidence before the Court, the Defendant’s Counterclaim is allowed. Order 14 . The Court orders the Claimant to pay the Defendant the sum of $2,476.83 plus costs before this court. Julien S. Matte, Adjudicator