Executive Summary: Key Legal and Evidentiary Issues

• Existence of an employment contract was disputed where a conditional employment agreement hinged on a suspensive condition: completion of a pre-employment background check that never materialized.
• Central factual issue concerned whether the candidate’s withdrawal from the hiring process amounted to a voluntary decision (a “resignation”) or could be characterized as a disguised dismissal giving rise to damages.
• Evidence showed the applicant kept her existing employment and later secured a higher-paid role elsewhere, undermining claims of loss of income or entitlement to an indemnity in lieu of notice.
• Claims for moral and punitive damages failed because the proof did not establish unreasonable conduct, discrimination, breach of fundamental rights, or a causal link between Cofomo’s actions and the deterioration of the applicant’s health condition.
• The Superior Court labelled the modified claim abusive under article 51 C.p.c., finding it objectively unsustainable in fact and law, with speculative damage quantification and reliance on clearly inapplicable statutory provisions.
• On appeal, the Court of Appeal refused leave to appeal, holding that the reasons disclosed no arguable error of fact or law, no question of principle or novel law, and no apparent injustice warranting further review, and it awarded costs against the applicant (amount not specified).

Facts and background of the employment dispute

Rose Maliza-Mapemba is a specialist in network analysis who, in the spring of 2022, began looking to change jobs while continuing to work for her then employer, Bell Canada. She opened discussions with Cofomo Développement inc. regarding a position as an information technology consultant. Those discussions led to the signing of a “convention d’emploi” (employment agreement), but the document was expressly conditional. A suspensive condition in clause 1.2 required that the agreement be “conditionnelle aux résultats des enquêtes exigées par Cofomo et/ou le client,” meaning it would only take effect if the required background checks, including a criminal-record check, were successfully completed to Cofomo’s satisfaction. The evidence before the Superior Court showed that the convention was signed early in the hiring process and that the background check process was triggered through a third-party provider (Certn). Maliza-Mapemba asserted that she had completed the necessary forms and that the background check should therefore be treated as satisfied, or at least as a secondary, non-essential element of the contract. She argued that all essential elements of a valid employment contract had been met and that Cofomo’s failure to sign the convention did not, in itself, prevent a binding agreement from arising. Cofomo, in contrast, adduced testimony indicating that it never received the results of the Certn background inquiry and that this unfulfilled suspensive condition meant no contract of employment ever came into force. When asked to explain the missing results, Maliza-Mapemba could not provide a clear justification, and the trial judge considered it more plausible that her withdrawal from the process coincided with the early stages of the background-check request, before Certn could complete and transmit the report.

Events surrounding the withdrawal from the hiring process

In late June 2022, a communication gap and disagreement over salary crystallized the dispute. Maliza-Mapemba learned that the remuneration ultimately proposed did not match what she believed had initially been discussed. She then wrote to Cofomo’s representative, Ms. David, stating, “Oui, Malheureusement je dois me retirer. Merci pour tout! […] Cordialement,” clearly indicating that she was pulling out of the hiring process. The Superior Court carefully assessed these exchanges and concluded that her decision to withdraw was “libre et volontaire” and could not be treated as an imposed termination or disguised dismissal. The judge noted that, even if she had completed the process and commenced work with Cofomo, she likely would have been “on the bench” awaiting assignment to a client. Instead, she never left her existing position at Bell Canada and continued to work there up to late May 2023, at which point she moved directly into another position with CBC/Radio-Canada on 29 May 2023. This uninterrupted employment path was crucial to the assessment of damages: Maliza-Mapemba earned approximately $121,900 per year at Bell, compared to the projected $120,000 salary with Cofomo, making her existing role slightly more lucrative. The trial judge concluded that she suffered no loss of employment or income as a result of withdrawing from Cofomo’s process and would in any event have fully mitigated any theoretical loss.

Allegations of disguised dismissal and claimed damages

Despite never having entered Cofomo’s employment, Maliza-Mapemba commenced an action in the Superior Court in the summer of 2024. In her modified instructional demand, she alleged that the conditional employment convention was valid and binding, that Cofomo unilaterally altered the salary conditions, and that this amounted to a disguised dismissal or constructive termination. On that basis, she sought $127,000 in damages, combining alleged economic loss with substantial claims for moral and punitive damages. She also advanced arguments that Cofomo’s conduct infringed her fundamental rights, including assertions of discriminatory or harassing behavior that she said contributed to or exacerbated a deterioration in her health. The Superior Court rejected these claims on both factual and legal grounds. The judge found that the suspensive condition concerning the background check was not accessory but rather “une condition essentielle à la formation de la Convention,” and that it had never been fulfilled, so no contract of employment was ever formed. He also held that, even on the hypothesis that a contract had existed, there was no disguised dismissal because Maliza-Mapemba herself elected to withdraw from the hiring process. Her continuous employment with Bell and subsequent move to CBC/Radio-Canada demonstrated that she had not been deprived of work or of income.

Findings on moral, punitive and other non-pecuniary claims

The Superior Court also addressed the claims for moral and punitive damages in detail. It found no convincing evidence that Cofomo had engaged in unreasonable or abusive conduct toward Maliza-Mapemba, and no persuasive causal link between any act attributable to Cofomo and the alleged deterioration in her state of health. The court further observed that her own documents indicated she was already on a work stoppage prior to the relevant events, weakening any argument that Cofomo’s acts had triggered or worsened her condition. The judge dismissed her contentions of discrimination and violation of fundamental rights, pointing out that she had not demonstrated in what way the events in dispute engaged such rights. Her allegation that an email titled “À DISTANCE Contrat permanent” signified a permanent role with a third-party client (PFR) was contradicted by the actual contents of the correspondence, which clearly referred to a permanent position with Cofomo, a company that had no control over PFR’s hiring decisions.

Abusive proceedings and the application of article 51 C.p.c.

A key feature of the case is the Superior Court’s characterization of Maliza-Mapemba’s modified demand as abusive under article 51 of the Code of Civil Procedure. The court emphasized that each of her heads of claim lacked any real prospect of success. It underlined that there was no employment contract because the suspensive condition regarding background verification had not been met, that she had voluntarily withdrawn from the process and thus could not claim disguised dismissal, and that no reliable evidence supported the existence or quantification of the damages asserted. The judge criticized her use of unrelated statutory provisions—specifically, articles 148 of the Canada Labour Code and sections 373 and 736 of the Criminal Code—to fix a moral-damage figure of $100,000, describing this approach as “manifestly inapplicable” to the circumstances. He concluded that a reasonable, prudent person in her situation would not have instituted or pursued such a claim based on these premises and that her pleading was objectively insupportable in fact and in law. Consequently, the Superior Court not only dismissed her action but also formally declared it abusive. Although Cofomo had originally sought damages in a cross-application, it withdrew those monetary conclusions during the hearing, and no separate award of damages against Maliza-Mapemba was made at first instance, notwithstanding the abuse finding.

Appeal framework and criteria for leave to appeal an abusive-proceeding judgment

Because the Superior Court had dismissed the action and declared it abusive, Maliza-Mapemba was required to seek leave (permission) to appeal that judgment to the Court of Appeal. Under the Code of Civil Procedure and the appellate jurisprudence cited by Justice Myriam Lachance J.C.A., a party challenging a judgment that both rejects an action and declares it abusive must show that the proposed appeal raises a question of principle, a new legal issue, or a legal question subject to conflicting case law, unless there is an apparent weakness in the judgment that risks an injustice. The application must also be in the best interests of justice and present reasonable prospects of success, while remaining proportionate in terms of the resources and judicial attention required. Maliza-Mapemba’s application for leave attempted to revisit virtually all of her trial-level arguments, essentially contesting the factual findings regarding the non-formation of an employment contract and disputing the abuse characterization. She argued that the trial judgment was unjust, inequitable, and partial and insisted that Cofomo’s behavior, not hers, was unreasonable.

Court of Appeal’s assessment and outcome

The Court of Appeal carefully reviewed the trial judge’s reasons, especially his treatment of the conditional nature of the employment convention and the suspensive condition tied to the background check. It found the Superior Court’s factual inferences to be carefully reasoned and free from any manifest or determinative error. The appellate judge endorsed the conclusion that the suspensive condition had never been met because Cofomo never received the background-check results and that this failure prevented the formation of a valid employment contract. The Court of Appeal also accepted the alternative reasoning that, even if a contract had been in place, Maliza-Mapemba’s voluntary withdrawal and uninterrupted employment history meant she neither suffered a disguised dismissal nor any compensable economic loss. On the non-pecuniary claims, the Court highlighted the absence of evidence of unreasonable conduct, discrimination, or violation of fundamental rights, and it agreed that no causal nexus had been shown between Cofomo’s actions and the health problems alleged. The Court of Appeal further upheld the Superior Court’s characterization of the proceeding as abusive, agreeing that the claim was objectively untenable and that no person acting reasonably would have pursued it in the circumstances described. It rejected the suggestion that the trial judge had been biased, noting that Maliza-Mapemba had not displaced the strong presumption of judicial impartiality that applies in Canadian law.

In light of these findings, the Court of Appeal concluded that the proposed appeal raised no question of principle, no novel legal issue, no conflicting jurisprudence, and revealed no apparent error of law or palpable and overriding error of fact that might justify appellate intervention. It emphasized that its role was not to re-weigh the evidence but to assess whether any arguable legal error or injustice arose from the first-instance decision. Finding none, Justice Lachance, sitting alone, refused leave to appeal and ordered that the application be dismissed with costs against Maliza-Mapemba. Cofomo Développement inc. is therefore the successful party in the Court of Appeal proceedings. No damages were ever awarded to Maliza-Mapemba, and while Cofomo obtained costs in the Court of Appeal and had earlier withdrawn a monetary claim at first instance, the precise dollar amount of any costs or monetary recovery in Cofomo’s favour cannot be determined from the decision text.