In Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967 Justice Perell was faced with a allegation by the Defendant that the Plaintiff produced a fraudulent internet job search record.
Here are some of the judges comments on this approach :
[4] Releasing the dogs of litigation war and going for the jugular, Walt Dentistry submits that Ms. Gracias falsified her evidence of mitigation with fabricated records of her Internet job applications.
[26] In preparing for the summary judgment motion, Dr. Walt reviewed Ms. Gracias’ document brief about mitigation. Because he was skeptical about why someone as qualified as Ms. Gracias would allegedly have difficulty finding a new job, he examined the .pdf documents, and he noticed some discrepancies in the documents. He believed that Ms. Gracias had fabricated evidence. Walt Dentistry retained Mr. Hatch, an expert forensic examiner, to determine whether there was some substance to Dr. Walt’s suspicions. Dr. Walt made investigations of his own to validate or refute the evidence proffered by Ms. Gracias. Dr. Walt contacted Drs. Laski, Nikolovski, and Weiss, and they respectively were prepared to and did swear affidavits for the summary judgment motion. Those affidavits cast doubt on whether Ms. Gracias applied for jobs with the affiants’ dental clinics. With the dentists’ affidavits and Mr. Hatch’s report casting doubt on the veracity of Ms. Gracias’ evidence of mitigation, in March 2022, one month before the summary judgment motion in an action that had diminished to a less than $50,000 claim, Walt Dentistry sets out to prove that Ms. Gracias had falsified her evidence of mitigation.
[35] The second step of the analysis of the alleged mitigation fraud is statistical, and this step involves classifying the evidence of Ms. Gracias’ job applications that are listed in her mitigation log. There are 139 job applications in Ms. Gracias’ mitigation log of which 138 job applications were made by Ms. Gracias between March 16, 2020 and December 18, 2020. There is also an application of April 28, 2021 to Village Orthodontics Dental Corp., which was logged mistakenly as being submitted on April 28, 2020. The parties and Mr. Hatch overlooked that this email message was mistakenly included in the log and in the undertaking briefs.
[36] As detailed below, 102 of the 139 job applications are alleged by Walt Dentistry to have been fabricated. As detailed below, 37 of the 139 job applications have not been impugned by Walt Dentistry.
[37] Ninety-six of the 139 applications are before September 16, 2020, at which time Ms. Gracias accepted a job offer from Transitions Consulting. Forty-three of the 139 applications are after September 16, 2020, at which time Ms. Gracias accepted a job offer from Transitions Consulting.
[38] Eighty-nine of the 139 application emails are messages from the job recruitment web site Indeed.com.
[39] Eighty-six of the 89 Indeed.com emails are challenged as falsified. These emails are identified by having an automatically populated field indicating the email address of a prospective employer, but the hyperlink (connection to a webpage) back to that prospective employer is apparent but not real and “the follow hyperlink,” which does activate, invariably connects to Forest Hill Village Orthodontics, to whom Ms. Gracias had made a job application on March 1, 2020.
[40] Dr. Walt had communications with: (a) Dr. Laski (with respect to two of the Indeed.com applications); (b) Dr. Nikolovski (with respect to one of the Indeed.com applications); (c) Dr. John Bozek (with respect to one of the Indeed.com applications); and (d) Dr. Tracy Handler (with respect to two of the Indeed.com applications). These dentists were principals of dental clinics listed on Ms. Gracias’ mitigation log. The dentists searched their respective office records and none of them could find evidence of job applications to them from Ms. Gracias.
[41] Three of the 89 Indeed.com emails appear to be genuine, namely:
- a. The July 15, 2020 email acknowledging an application to Overtus Medical.
- b. The July 15, 2020 email acknowledging an application to 123 Dentist.
- c. The April 28, 2021 email acknowledging an application to Village Orthodontics Dental Corp. This is the application misdated in Ms. Gracias’ mitigation log.
- [42] Mr. Hatch’s findings and opinion with respect to the Indeed.com emails is as set out below.
As shown in this report, a .pdf document can be edited with great ease. When the authenticity of electronic evidence, such as emails, provided in the form of a .pdf document is in dispute, it is necessary to authenticate the evidence by having the original electronic copies of the email files themselves for analysis and authentication.
In my professional opinion as a digital forensics expert, 86 out of the 89 Indeed Emails contain two suspicious anomalies that call their authenticity into question. First, the blue, underlined text describing the job applied for appears to be a hyperlink, but is not actually a hyperlink. Second, the “Follow” button links out to a different employer from the one shown in the email.
In stark contrast, the 3 Indeed Emails that do not have these two suspicious anomalies contain the correct characteristics that one would expect to see from a legitimate Indeed application confirmation email. Those 3 Indeed Emails have a hyperlink embedded in the blue, underlined text containing the description of the job applied for and the “Follow” button links out to the matching employer that is shown in the email. 8
According to my analysis, it is my professional opinion that the emails shown at pages 61, 132 and 160, are legitimate. However, I have significant reason, outlined in this report, to seriously question the authenticity of the other 86 Indeed Emails.
As such, if their authenticity is to be verified then the only way to do so would be to examine the electronic versions of the email files in their native format (probably, .eml or .msg files).
[43] In addition to examining the Indeed.com emails, Mr. Hatch identified 9 email messages on Ms. Gracias’ Hotmail.com email account as having suspicious anomalies. He identified two types of anomalies. First, the parentheses on the left and right of the text of the email address were separated by a space, which is unusual. Second, placing a cursor over the email address text within the parentheses produced a hyperlink to “oasismarkham@gmail.com” which was inconsistent with the correspondence to the prospective employer identified in the email message.
[44] Mr. Hatch’s findings and opinions with respect to the nine emails are set out below:
As shown in this report, a .pdf document can be edited with great ease. When the authenticity of electronic evidence, such as emails, provided in the form of a .pdf document is in dispute, it is necessary to authenticate the evidence by having the original electronic copies of the email files themselves for analysis and authentication.
In my professional opinion as a digital forensics expert, the purported emails shown at pages 46, 47, 48, 50, 53, 73, 102, 110 and 115 of the Undertakings show anomalies that raise serious doubt as to their authenticity.
As such, if their authenticity is to be verified then the only way to do so would be to examine the electronic versions of the email files in their native format (probably, .eml or .msg files).
[45] The third step in the analysis is to consider the matter of motive and the evidence of Ms. Gracias and the opinion of Mr. Hatch. This analytical step is necessary because in the absence of motive, it is more plausible and more logical to attribute the anomalies to mistake, accident, mystery, or misadventure than is it to attribute the anomalies to fraud and falsification.
[46] Ms. Gracias’ evidence was that she genuinely made the job applications. She cannot explain the anomalies discovered by Dr. Walt and confirmed by Mr. Hatch. I believed her evidence which was more plausible than the evidence that she falsified the evidence of mitigation.
[47] There was no purpose to fabrication, and it would be idiotic for her falsify evidence. As the discussion later in this decision will reveal, the onus of proving a failure to mitigate was on Walt Dentistry. She had 37 of the 139 job applications that are acknowledged to be genuine. That would have been enough to rebuff Walt Dentistry’s attack, because the law is that mitigation needs only to be reasonable not comprehensive, and she did not need so much evidence, nor did she need to prove that she applied to every dental job posted on Indeed.com or posted elsewhere.
[48] Moreover, if she needed to apply for every dental job posted on Indeed.com or elsewhere about jobs in the vicinity of her home in Markham, Ontario, to prove mitigation, then why labour at fabricating 102 applications after the fact when making genuine applications was easily facilitated by the Indeed.com webpage and her own email account? Why include 43 applications after September 16, 2020, at which time Ms. Gracias had accepted a job offer from Transitions Consulting? It is more plausible that the impugned emails are the product of mistake than of misfeasance.
[49] The fourth step in the analysis is to note the paucity of the evidence about fabrication of .pdf documents. Mr. Hatch’s opinion identified anomalies in the emails, and while he provided an opinion of how the anomalies could be the product of advertent manipulation, he did not opine on whether the anomalies could be the product of mistakes in fashioning an email message using a copy of the email messages that Ms. Gracias had sent on February 26 or 27, 2020 to Oasis Orthodontics and on March 1, 2020 to Forest Hill Village Orthodontics, while still employed at Walt Dentistry. Mr. Hatch was only given the brief of documents. Neither he nor I have any idea of what Ms. Gracias testified at her examination for discovery about how she went about preparing her job applications. Further, there was no evidence from either side about how Indeed.com operates and whether or not email applications could be misdirected by mistaken entries. There was insufficient evidence to come to the conclusion that Ms. Gracias fabricated her job applications.
[50] The last step in the analysis is to consider what is the weight and significance of all of the evidence about the alleged mitigation fraud. Weighing all the evidence, I conclude that while it is possible that the evidence of mitigation was altered, it is far more plausible that the anomalies are a product of mistake or misadventure in Ms. Gracias’ use of Indeed.com or her use of her personal email account. With respect to the evidence of Drs. Laski, Nikolovski, and Weiss and the hearsay evidence of Drs. Bozek and Handler, that they did not find evidence of applications from Ms. Gracias, this evidence can be understood as consistent with the more plausible explanation that Ms. Gracias’ emails were misdirected by mistake and not fabricated after the fact, which she denied doing.
[51] Finally, there is the matter of Mr. Hatch opining that he could discover more about the genuineness of the email messages by examining electronic versions of the email files in their native format (probably, .eml or .msg files).
[52] With the summary judgment motion imminent, in response to the request that Ms. Gracias provide copies of the original email messages, she did not do so, and she explained that she had been the victim of a computer hack of her email files. I accept that this is a suspicious coincidence, but Internet hacks of email accounts are not uncommon, and more to the point, for the reasons I have already expressed, it remains more plausible that the impugned emails are the product of mistake or misadventure than of a grand and continuing mitigation fraud.
[53] I am not persuaded that Ms. Gracias fabricated her evidence of mitigation. I find as a fact that there was no failure to mitigate.
Commentary:
Thw award in this case was only 3 months of reasonable notice, which considering that she had only been employed for 5 months, is pretty good. This came to $17,587.
Can you imagine how much the Defendant must have spent on this failed mitigation argument? They actually hired a forensic expert !
The issue of costs is not decided. If the Plaintiff had an operative Rule 49 offer on the table for less than $17,587 , then the presumptive rule is that the Plaintiff would get partial indemnity costs up the date of the offer and substantial indemnity thereafter. Moreover, my understanding of the law of costs is that if you allege fraud and fail to prove it, the Court can also award substantial or even full indemnification of costs. The cost award could easily dwarf the judgement amount.
If you like a copy of the case, email me at barry@barryfisher.ca
In Rahman v. Cannon Design Architecture Inc., 2022 ONCA 451 the Court of Appeal unanimously overturned a decision of Justice Dunphy in which he found that because the Plaintiff was a sophisticated individual who had legal advice when she signed the agreement an otherwise invalid termination clause was enforceable.
The Court of Appeal thought otherwise:
[24] In my view, the motion judge erred in law when he allowed considerations of Ms. Rahman’s sophistication and access to independent legal advice, coupled with the parties’ subjective intention to not contravene the ESA, to override the plain language in the termination provisions in the Employment Contracts. By allowing subjective considerations to distort and override the wording of those provisions, the motion judge committed an extricable error of law reviewable on a correctness standard: Amberber v. IBM Canada Ltd., 2018 ONCA 571, 424 D.L.R. (4th) 169, at para. 65. It is the wording of a termination provision which determines whether it contravenes the ESA – even compliance with ESA obligations on termination does not have the effect of saving a termination provision that violates the ESA: Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, 134 O.R. (3d) 481, at paras. 43-44.
If you would like a copy of this case, email me at barry@barryfisher.ca