An Ontario employer that accused a terminated worker of falsifying job-search records has lost its appeal that she failed to mitigate her damages.
SG was terminated without cause from her position as a dental hygienist with David Walt Dentistry after being on the job for less than six months. She sued for wrongful dismissal and was awarded damages of $17,587.11 in a 2022 ruling.
The employer appealed the ruling, focusing in on SG’s failure to mitigate her damages by looking for another job. In the original trial, SG provided oral testimony about her job search — and also provided an electronic log in PDF format. It indicated she applied for 139 positions online.
Fabricated evidence?
The employer argued that she fabricated this evidence, providing an affidavit from a certified digital forensic examiner who examined the search log.
He found anomalies in the PDF that raised serious doubts about the authenticity of 102 of the 139 online job applications. He also stated that the only way to be sure was to examine the electronic versions of SG’s email files in their native format.
The dentist also provided affidavits from three other dentists — who SG said she sent resumes to — who said they never received a job application from her.
SG said she had indeed applied for all the jobs in the log and could not explain the anomalies. She also said she was unable to provide original versions of her email messages because she had been the victim of a computer hack.
The motion judge ruled the employer failed to establish SG had fabricated evidence or failed to mitigate her damages. Among other things, he noted that the forensic examiner had not called into question 37 of her job applications and that her efforts were sufficient to satisfy her obligations.
Hack a ‘suspicious coincidence’
While he found the claim of computer hacking to be a “suspicious coincidence,” such hacks are not uncommon and that it remained more plausible that the anomalies in her search were a “product of mistake or misadventure.”
The dentist appealed that determination to the Ontario Divisional Court.
The appeal
The employer argued there was uncontroverted evidence that the vast majority of her mitigation evidence was forged. There was no innocent explanation provided for the anomalies identified by the forensic examiner and nothing to support the motion judge’s conclusion that they resulted from mistake or misadventure, rather than fraud.
But the appeal court disagreed. The onus was on the employer to prove failure to mitigate, and the motion judge ruled it failed to do so — and that reasonable efforts had been made.
“Walt Dentistry’s evidence is too flawed and incomplete to draw the inference that (SG) falsified evidence and attempted to defraud the court,” the motion judge said in the original ruling. “I shall not draw inferences that are speculative, implausible, and inconsistent with other more persuasive evidence that (SG) did a genuine job search. I find as a fact that Walt Dentistry failed to prove the enormously serious allegation that (SG) falsified evidence.”
The appeal court saw “no error in principle or any palpable and overriding error by the motion judge on this point.”
It awarded costs to SG in the amount of $15,000, all inclusive.
For more information, see Gracias v. Dr. David Walt Dentistry Professional Corporation, 2023 ONSC 2052 (CanLII)
