) ) SONIA GRACIAS Plaintiff (Respondent) – v. –, 2023 ONSC 2052

CITATION : Gracias v. Dr. David Walt Dentistry Professional Corporation, 2023 ONSC 2052 DIVISIONAL COURT FILE NO.: 344/22 DATE: 20230404 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Aston, Lococo and Schabas JJ. BETWEEN: ) ) SONIA GRACIAS Plaintiff (Respondent) – and – DR. DAVID WALT DENTISTRY PROFESSIONAL CORPORATION Defendant (Appellant) ) ) ) ) ) ) ) ) ) ) Andrew H. Monkhouse and Alexandra Monkhouse , for the Plaintiff (Respondent) Paul J.

Martin , for the Defendant (Appellant) ) ) ) HEARD at Toronto by video conference: March 30, 2023 ORAL REASONS FOR JUDGMENT THE COURT (orally): [ 1 ] The appellant/defendant Dr. David Walt Dentistry Professional Corporation appeals the order of Justice Paul M. Perell of the Superior Court of Justice dated May 17, 2022, with reasons reported at 2022 ONSC 2967 . In that decision, the motion judge granted

summary judgment to the respondent/plaintiff Sonia Gracias and awarded her damages of $17,587.11. [ 2 ] After being employed by the appellant as a dental hygienist for less than six months, Ms. Gracias was terminated without cause. Upon her dismissal, the appellant paid Ms. Gracias her entitlements under the Employment Standards Act , [1] amounting to one week’s pay in lieu of notice. She promptly commenced an action for damages for wrongful dismissal under r. 76 of the Rules of Civil Procedure , [2] and later brought a

summary judgment motion.

Summary judgment motion [ 3 ] On the

summary judgment motion, Ms. Gracias sought damages of $43,750 for wrongful dismissal, arguing that reasonable notice of termination was seven months. The appellant disputed owing any amount to Ms. Gracias, arguing (among other things) that she failed to mitigate her damages, since she did not make reasonable efforts to obtain alternative employment. The appellant also alleged that Ms. Gracias falsified evidence by fabricating records of her internet job applications. [ 4 ] At the motion hearing, Ms.

Gracias provided viva voce evidence limited to the issue of mitigation, as directed by Stinson J. in a case management endorsement dated January 26, 2022. To support her testimony, Ms. Gracias also provided an electronic job search log in .pdf format, which indicated that she made 139 online job applications. [ 5 ] To support the appellant’s allegation that Ms. Gracias fabricated evidence, the appellant provided affidavit evidence from a certified digital forensic examiner, who evaluated Ms. Gracias’ job search log.

The examiner found anomalies in the electronic documents that he said raised serious doubts about the authenticity of 102 of the 139 online applications. He also stated that the only way

to verify their authenticity was to examine the electronic versions of Ms. Gracias’ email files in their native format. (As noted below, that was not available in this case.) The appellant also provided affidavits from three other dentists whom Ms. Gracias identified as persons to whom she applied for employment, who stated that they had no record of her application. [ 6 ] Ms. Gracias did not call an expert witness in response to the forensic examiner’s evidence. Ms. Gracias testified that she had genuinely made the online applications and could not explain the anomalies.

She also stated that she was unable to provide original versions of her email messages because she had been the victim of a computer hack. [ 7 ] In the motion judge’s reasons, he found that the appellant had failed to establish that Ms. Gracias had fabricated evidence or failed to mitigate. He accepted Ms. Gracias’ evidence that she had made genuine efforts to find alternative employment. Among other things, he found that the forensic examiner had not called into question the authenticity of 37 of her online job applications and that her efforts were sufficient to satisfy her obligation to mitigate her damages.

He found Ms. Gracias’ claim to be the victim of a computer hack to be a “suspicious coincidence” but noted that internet hacks of email accounts are not uncommon, and that it remained more plausible that the anomalies were a “product of mistake or misadventure”. He found that Ms. Gracias had been wrongfully terminated and awarded damages based on a reasonable notice period of three months. Issues to be determined [ 8 ] On appeal, the appellant raises the following issues: a. Did the motion judge err in finding that the appellant failed to establish that Ms. Gracias had not made reasonable efforts to mitigate? b.

In the alternative, did the motion judge err in finding that the mitigation evidence did not raise a triable issue and in granting

summary judgment? Jurisdiction and standard of review [ 9 ] The Divisional Court has jurisdiction to hear this appeal under sections 19(1) (

a) and 19(1.2) (

a) of the Courts of Justice Act . [3] The appellate standards of review apply, as set out in Housen v.

Nikolaisen , [4] at paras. 8, 10, 35-36 . [ 10 ] The standard of review is correctness for questions of law, including legal principles extricable from questions of mixed fact and law. [ 11 ] The standard of review is palpable and overriding error for questions of fact and for other questions of mixed fact and law, including with respect to the application of correct legal principles to the evidence. [ 12 ] A palpable and overriding error is “an obvious error that is sufficiently significant to vitiate the challenged finding”: Longo v. MacLaren Art Centre Inc. , [5] at para. 39 [ 13 ] I n Hryniak v.

Mauldin , at para. 81, the Supreme Court of Canada addressed the standard of review on appeal of a

summary judgment decision, as follows: In my view, absent an error of law, the exercise of powers under the new

summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error … [Citation omitted.] Analysis and conclusion [ 14 ] The appellant submits that the motion judge erred in finding that Ms. Gracias made reasonable efforts to mitigate.

In its submission, that conclusion was not tenable in the face of uncontroverted evidence showing that the vast majority of her mitigation evidence was forged. The appellant says that there was no innocent explanation provided for the anomalies the forensic examiner identified and no evidence to support the motion judge’s conclusion that the anomalies resulted from mistake or misadventure, rather than fraud. [ 15 ] We disagree. The onus was on the appellant to establish that Ms. Gracias failed to mitigate.

On the evidence before the motion judge, he found that the appellant had failed to meet that onus, and that reasonable efforts had been made. It was open to him to weigh the evidence before him on that issue (including evidence calling into question the authenticity of the documentary evidence) and to come to the conclusions he did. In doing so, the motion judge specifically rejected the appellant’s submission that the evidence demonstrated that Ms. Gracias had fabricated evidence.

We see no error in principle or palpable and overriding error in his analysis. [ 16 ] The appellant’s submission that the motion judge made an error of law by finding that the email anomalies could more plausibly be explained by “mistake, accident, mystery, or misadventure” (since there was no evidence to support that conclusion) overstates the motion judge’s findings. It was open to the motion judge to weigh the limited evidence of the expert (which he did), consider the evidence of Ms. Gracias, and conclude that the appellant had not met its onus to demonstrate failure to mitigate.

As the motion judge stated in his reasons, at para. 28: Walt Dentistry’s evidence is too flawed and incomplete to draw the inference that Ms. Gracias falsified evidence and attempted to defraud the court. I shall not draw inferences that are speculative, implausible, and inconsistent with other more persuasive evidence that Ms. Gracias did a genuine job search. I find as a fact that Walt Dentistry failed to prove the enormously serious allegation that Ms. Gracias falsified evidence. [ 17 ] In oral argument, the appellant also submitted that there was procedural unfairness as, it was argued, the motion judge’s

finding that there was mistake or misadventure was a new theory that was not pleaded. However, this is not a case like Labatt Brewing Company Limited v. NHL Enterprises Canada, L.P. [6] or Rodaro v. Royal Bank of Canada , [7] in which a new legal theory was advanced; rather, the motion judge simply engaged in making findings of fact on an issue that was joined between the parties. [ 18 ] Similarly, we reject the argument that it was inappropriate to have granted

summary judgment and that the motion judge ought to have directed a trial of the issue. As the motion judge noted, both parties agreed that

summary judgment was appropriate and he considered “long and hard” about that issue, despite the agreement. He addressed relevant factors (at para. 79 of his reasons) in coming to the conclusion that

summary judgment was appropriate based on the facts and evidence. These are issues of mixed fact and law. We see no error in principle or any palpable and overriding error by the motion judge on this point. [ 19 ] Accordingly, the appeal is dismissed. Costs [ 20 ] We have considered the parties’ submissions on costs. The endorsement will include a provision that the appellant shall pay the respondent’s costs, fixed in the amount of $15,000, all inclusive. ___________________________ Aston J. ___________________________ Lococo J. ___________________________ Schabas J.

Date of Oral Reasons: March 30, 2023 Date of Written Release: April 4, 2023 CITATION : Gracias v. Dr. David Walt Dentistry Professional Corporation, 2023 ONSC 2052 DIVISIONAL COURT FILE NO.: 344/22 DATE: 20230404 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Aston, Lococo, and Schabas JJ BETWEEN:

SONIA GRACIAS Appellant – and – DR. DAVID WALT DENTISTRY PROFESSIONAL CORPORATION ORAL REASONS FOR JUDGMENT THE COURT Date of Oral Reasons: March 30, 2023 Date of Written Release: April 4, 2023