Friday, August 22, 2014

Admitting Fresh Evidence After Losing an Appeal

The Court of Appeal just released a decision in Mehedi v. 2052761 Ontario Inc., where the plaintiff sought to admit fresh evidence even after the Court of Appeal dismissed his appeal on the merits.

Mr. Mehedi sued the defendant, which carried on business as "Job Success", and individuals associated with the company, alleging that they defrauded him:  Allegedly, they promised him a job as project manager with a $70,000 salary, and in exchange for their services he paid $3,742 - he sought the return of that money, and punitive damages.

In 2011, the matter went to trial, and the trial judge concluded that there was never actually a promise to find him a particular job within a particular salary range.  On January 23, 2012, the Court of Appeal dismissed Mehedi's appeal, deferring to the trial judge's findings of fact.

Then, less than a month after the appeal was dismissed, CBC's Marketplace aired a piece on a related company to Job Success (full episode here), including a videotaped interview with one of the personal defendants Mehedi had sued, Lacombe:  When asked if they were 'guaranteeing' an undercover reporter a job, the defendant responded confidently, "Absolutely, and we're very good at it."

"Guarantee" is a strong word.  "Absolutely" is another strong word.  The company line, from company president Dale Smith, is that they don't promise or guarantee anyone a job, and having already been sued by people accusing them of doing so, one would expect them to be careful about disclaiming any such guarantees.  Even if they have a particularly solid candidate in front of them, if Dale Smith were to be believed, the right answer would be "No, we can't make guarantees, but..."

The fact that Lacombe did make promises completely undermines the contention - presumably what they advanced successfully at the original trial - that they don't make promises.

And she didn't just ask it once.

CBC:  "This is going to work?  Is this going to get me a job, guaranteed?"
Lacombe:  "Yep, um, we guarantee what we do here.  You're asking the typical two questions that everybody asks me.  Does this really work?  Am I going to get help?  Yes, and yes."

Another undercover job-seeker caught a salesperson advertising that there's "no risk" because the job-seeker will make his money back on the first pay cheque in his new job.

For Mr. Mehedi, this is really vindicating:  It really strengthens his claims that he was promised a job.  But the timing was awful, coming weeks after his appeal was dismissed.  So, for the two and a half years since then, he's been trying to reopen the case, and has been caught up in a bureaucratic nightmare.

First, he brought a motion for judgment, but the motions judge advised him to retain a lawyer, and told him that he first had to set aside the trial judgment.  So he tried to get dates for a motion before the trial judge - the appropriate step to take - and court services said that they aren't privy to specific judge's calendars, so the judge's office should be contacted directly.  Upon doing so, the judge's office advised that he was in criminal court for the foreseeable future.  So he brought a motion for directions from the Superior Court, but - after more than a year's worth of adjournments - the Superior Court concluded that, because it had gone to the Court of Appeal, the motion should properly be brought there.

The Court of Appeal disagreed, concluding that the motion to introduce new evidence should be brought at the Superior Court in the ordinary way - go back down to the court below that already sent you back up to us.  Almost like one of those big companies' customer service call centres, just transfering you from department to department because nobody quite knows how to handle your call.

Caution about Job Scams

There are services to help improve your resume and interview skills.  Some of these are free, offered through government agencies; others will charge.  If you want to pay someone to help you with your resume, that's fine - just keep in mind that that's what you're paying for.

There are a great many placement agencies - headhunters and other companies who attempt to match qualified candidates with available positions.  In my experience, these agencies are paid by the employer.  It's an outsourcing of HR recruitment functions:  Find me a candidate, and I'll pay you a commission.  These agencies, therefore, will advertise the positions or headhunt individuals themselves, and will attempt to draw in a maximal number of candidates, so that they can vet the candidates and send the best onto the employer, to maximize the chances that one of their referrals will be hired, thus entitling them to their commission.  They do not require money from the job candidate; they get paid by the companies doing the hiring.  That's how that particular market typically works.

I find it difficult to believe that any credible company would charge job-seekers to connect them with jobs, but it that's what someone is promising you, tread carefully.  If it were me, I'd probably offer a contingency-based fee:  Okay, you're that confident that you can connect me with a job in a given timeframe - if I obtain a job through your connections, I'll give you x% of my wages for the first y months.  (If I'm right to be sceptical about such a 'service', then they'll refuse to consider such an arrangement.  If there's a legit service of such a nature, however, they'd almost have to consider such an arrangement.)

Also, carefully read the contract, and make sure that what you're signing for is actually what you understand you're buying.  A promise not written into the contract will often not be enforceable, so if you're signing in reliance on some promise that the company made, then insist that the promise be put on the face of the contract.  Again, if they're not prepared to do that, then their promise isn't really a promise.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

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