BC Supreme Court Rejects Just Cause Allegation against Manager with Abrasive Management Style, Awards $50,000 Punitive Damages and $35,000 Aggravated

Mr. Justice Goepel of the BC Supreme Court handed down comprehensive reasons for judgment on January 27, 2012 dismissing a just cause defence by the BC Liquor Distribution Branch in a wrongful dismissal damage claim by a senior manager.

Vernon v. British Columbia (Liquor Distribution Branch), 2012 BCSC 133 (CanLII)

Ms. Vernon had been employed by the BC LDB since age 19, for a period of 30 years, during which she was promoted from entry level positions to the role of Senior Store Manager in the Richmond Branch. She had a "rough and ready" management style, and had over the years functioned effectively in an environment that persons with modern sensibilities would find offensive. Her style involved swearing and directions to employees given in a manner which might be found offensive. A complaint was filed by an employee with particular sensibilities, and the LDB launched an investigation, followed by a summary dismissal.

Flawed Investigation

The court found that the investigation leading to the dismissal was flawed. So seriously flawed, in fact, that an award of both aggravated and punitive damages was granted.

The key aspects of the finding as to a flawed investigation were:

• it was headed by another employee who, by reason of prior involvement with the dismissed employee, even in relation to recent HR disputes between the complainant and the manager, should not have been given the task of investigating
• there was a "rush to judgment" which was apparently motivated by arbitrary deadlines dictated by employer policies as a quasi governmental organization
• the investigator chose to speak mainly to persons critical of the plaintiff, and not to other employees who supported the plaintiff
• the investigator was not a neutral, but self regarded as a prosecutor
• when the investigator talked to others who were supportive of the manager, their comments were not accepted at face value, but rather challenged
• the manager was confronted with a long list of accusations at a threatening meeting, without any sufficient warning of the accusations or even the reason for the meeting
• no sufficient reason was given to warnings, or other discipline short of dismissal, or mandatory remedial courses, as the employer was apparently of the view that it did not have those choices, in error
• the employee was left "in limbo" for an unnecessary and unreasonable period of time
• those in charge of the investigation changed over time, with inadequate communication between those handing off responsibility, so that the person who concluded the investigation reported to those making the termination decision an inaccurate conclusion - that the manager denied all accusation against her, and thus was both untruthful, and incapable of training, as she did not accept any responsibility. This was found to be incorrect and an important failure
• those in charge of the investigation failed to "take a step back" and put the allegations in their proper context, where the employee was a long service employee without any prior performance problems, and in fact a most credible work history

Just Cause

Judge Goepel followed well established precedent in his consideration of the question of whether just cause existed for summary dismissal.

He referred to the 2001 decision of the Manitoba Court of Appeal in Boulet, where a useful list of factors was set out for cause cases.

[285] In Boulet v. Federated Co-operatives Ltd. 2001MBQB 174, 157 Man.R. (2d) 256 aff’d 2002 MBCA 114, 170 Man. R. (2d) 9 (“Boulet”), McCawley J. summarized the principles applicable when cause is alleged at para. 3:

1. Each case must be decided on its facts.
2. An employer's displeasure at an employee's performance is not enough to warrant dismissal. There must be some serious misconduct or substantial incompetence.
3. The onus of proving just cause rests with the employer and the standard of proof is beyond a balance of probabilities.
4. The performance of an employee, especially one in a management position, must be gauged against an objective standard.
5. The employer must establish (a) the level of the job performance required, (b) that the standard was communicated to the employee, (c) that suitable instruction and/or supervision was given to enable the employee to meet the standard, (d) the employee was incapable of meeting the standard, and (e) the employee was warned that failure to meet the standard would result in dismissal.
6. Where the employee's performance is grossly deficient and the likelihood of discharge should be obvious to the employee, warnings and reasonable notice are not required.
7. While the standard of incompetence to warrant discharge for cause is severe, the threshold of incompetence necessary to warrant dismissal for cause is significantly lower where dismissal is preceded by many warnings indicating unsatisfactory performance.
8. In considering whether an employer has provided adequate warning to an employee, where the dismissal is for repeated instances of inadequate work performance, the employer must show (a) it has established a reasonable objective standard of performance, (b) the employee has failed to meet those standards, (c) the employee has had warnings that he or she has failed to meet those standards and the employee's position will be in jeopardy if he or she continues to fail to meet them; and (d) the employee has been given reasonable time to correct the situation.
9. An employer who has condoned an inadequate level of performance by his employee may not later rely on any condoned behavior as a ground for dismissal.
10. Condoned behavior is relevant if the employee fails to respond after appropriate warnings. Condonation is always subject to the implied condition that the employee will be of good behavior and will attempt to improve.

Aggravated Damages

The court awarded $35,000 in aggravated damages, recognizing that this head is only appropriate by way of compensation for losses experienced by the plaintiff, flowing from some sort of wrongful behavior on the part of the employer at the time of or in the manner of dismissal.

[369] Aggravated damages in wrongful dismissal cases are compensatory in nature. It is an implied term of an employment contract that an employer will act in good faith in the manner of dismissal: Beggs v. Westport Foods Ltd., 2011 BCCA 76 (CanLII), 2011 BCCA 76, 14 B.C.L.R. (5th) 1 at para 48.

[373] The foundation of the claim for aggravated damages is the manner of dismissal. The meeting of April 19, 2010, could not have been handled in a more insensitive manner. Ms. Vernon, a 30-year employee with an unblemished record, was summoned to a meeting where she was told her conduct was shameful and that she was an embarrassment to the LDB. When she asked for additional time to consider her position she was told she only had until noon on Friday because Mr. Branham was not prepared to wait around until 4:00 p.m. on a Friday to learn her decision. Having told Ms. Vernon that she was to be terminated, the LDB then suspended her without pay and left her in limbo from April 19 to May 31 when they finally got around to telling her she was fired.

[377] I find that the LDB’s conduct during the course of dismissal was unfair and unduly insensitive. I accept the evidence of Ms. Vernon and Dr. Phillips that the manner of dismissal caused Ms. Vernon mental distress over and above the normal distress and hurt feelings resulting from the dismissal itself. She is entitled to an award of aggravated damages.

Punitive Damages

The court awarded $50,000 by way of punitive damages - clearly distinguishing this head of damages as an award appropriate for other policy reasons, aside from compensation.

[381] Unlike aggravated damages (which are compensatory in nature), punitive damages are directed towards punishment. The leading authority remains Whiten v. Pilot Insurance Co.,2002 SCC 18 (CanLII), 2002 SCC 18, [2002] 1 S.C.R. 595 at para. 36(“Whiten”)

[382] The three objects of punitive damages are retribution, deterrence and denunciation. The Supreme Court of Canada has directed trial courts to approach punitive damages with caution and restraint and to resort to them only in exceptional circumstances: Whiten at para. 69.

[383] An award of punitive damages is rational only when compensatory damages do not adequately achieve the objectives of retribution, deterrence and denunciation:Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd.,2002 SCC 19 (CanLII), 2002 SCC 19, [2002] 1 S.C.R. 678 at para. 87.

[386] In this case, I have made an award of aggravated damages arising out of the insensitive manner in which Ms. Vernon was terminated. To award punitive damages for the same conduct would lead to double punishment for the same acts.

[387] There is, however, one exception. At the termination meeting of April 19, Ms. Ferrara told Ms. Vernon that if she agreed to resign, the LDB would provide her with a reference letter. While an employer is under no obligation to give a reference letter (Shinn v. TBC Teletheatre B.C., 2001 BCCA 83 (CanLII), 2001 BCCA 83, 85 B.C.L.R. (3d) 75), to offer Ms. Vernon a reference letter, conditional on her resignation, was reprehensible and departed to a marked degree from ordinary standards of decent behaviour. If Ms. Vernon’s conduct was sufficiently serious that the LDB had the right to summarily dismiss her without notice, it would have been improper for the LDB to give her a reference letter. To offer a reference letter as a carrot to resign, is, in my opinion, conduct which is properly the subject matter of retribution, deterrence and denunciation.

Summary and Conclusion

This decision will give employers cause for serious concern when considering the dismissal of long term managers for conduct which has been accepted as useful without complaint.

Employers will be well advised to avoid conduct in the course of investigations which might be seen as impartial, or heavy handed, particularly with long service employees.

The consequences of a finding of conduct meriting a punitive damage award are not just financial, and employers should consider the impact of their actions on employees, or risk unwanted outcomes.

Largest Punitive Damage Award for an Employment Case in Canada

On June 29, 2012 Chris Forguson completed a 3 week jury trial in Prince George.  

The plaintiff, Larry Higginson had been dismissed from the Babine sawmill in Burns Lake in October, 2009.  The Babine sawmill had been acquired in November 2006 by Hampton Lumber Mills Inc. based in Portland, Oregon.  Babine Forest Products Inc. and Hampton Lumber Mills Inc. were joint defendants.  

The defendants alleged cause for dismissal and paid Mr. Higginson no severance after 34 years of faithful service.  In the lawsuit, Mr. Higginson took the position that the cause for dismissal was essentially concocted by the defendants as a way to get rid of him without paying any severance.  Mr. Higginson further alleged that his dismissal was part of a scheme to avoid severance costs for long service employees and that Hampton Lumber Mills was responsible for this scheme and for his dismissal.  

After a 3 week trial, the jury determined that there had been no cause to dismiss Mr. Higginson and awarded $236,000 in compensatory damages for wrongful dismissal.  The jury further awarded $573,000 in punitive damages against the defendants for the conduct which gave rise to Mr. Higginson’s dismissal.  

This is the largest punitive damage award arising from an employment case in Canada.

TevlinGleadle (Blair Curtis) wins Patrick Moore Jurisdiction Challenge

Patrick Moore, one of the key founders of Greenpeace is suing NextEnergy Inc. for wrongful dismissal damages in BC Supreme Court. NextEnergy Inc. applied for an order that the BC courts decline jurisdiction because of an allegation that Mr. Moore's employment law claims were not sufficiently connected to British Columbia.

TevlinGleadle (Blair Curtis) successfully opposed the application; Mr. Moore's claim for damages for breach of his employment agreement, through failure to provide proper advance notice of termination, will now be able to proceed to trial.

Reasons for Judgement of the Honourable Madam Justice Gerow are available at the link.

Moore v. NextEnergy Inc. 2012 BCSC 458

Systad v. Ray-Mont Logistics (18 month award for 65 year old Container Lift Operator)

A 65 year old Container Lift Operator, with no supervisory duties was awarded 18 months notice after 18 years service, in spite of the employer's argument that 8 weeks' notice was enough given his (allegedly) non-responsible job duties.

The full text of the reasons for judgement are available here.

Character of Employment:

The judge dismissed the employer's arguments based on its allegation that Mr. Systad's "character of employment" was such that only statutory notice was required to comply with the BC Employment Standards Act.

"[19] There is no evidence to suggest that an employee with the responsibilities of Mr. Systad will have an easier time finding suitable alternate employment than an employee having more "senior" duties. I am satisfied that there are very few situations where the "character of employment" will be of paramount relevancy in the consideration of the appropriate notice period to be ordered. I adopt the statements that giving undue attention to the character of employment represents "antiquated social values" and is "antithetical to the law's ultimate goal, namely egalitarian justice". Character of employment is merely another matter which I take into account along with the other factors set out in Bardal, supra."

Employment Standards Acts minimums NOT adequate notice in most circumstances:

Judge Burnyeat in strong language concluded that for Mr. Systad the minimum notice requirements of the Employment Standards Act were inadequate.

[23] Mr. Systad has approximately ten years in excess of the period of employment that would entitle him to a maximum of eight weeks notice provided under the Act. At the same time, the employment of Mr. Systad was not that of a young, low-service employee with an "entry level" job. Mr. Systad was paid over $75,000 for his efforts, his hourly rate of approximately $36.80 far exceeded that of forklift drivers who he says earn $14 per hour, and he was entitled to eight weeks paid vacation. As well, Mr. Systad trained less experienced drivers and he had been asked by the Terminal Manager to supervise other employees when the Terminal Manager was absent.

[24] The decision in Pelech, supra, is clearly distinguishable. Based on his age, his responsibilities, and his compensation, he could not be described as a young entry-level employee. I reject the submission of Ray-Mont that the statutory notice provisions under the Act are appropriate in this case. It will be a rare case where someone of this age, compensation, years on the job, and duties will only be entitled to the compensation provisions set out under the Act. This is not such a case. While Mr. Systad had few remaining supervisory functions, he nevertheless was being paid commensurate with considerable responsibilities.

This decision underlines the severe limitations on application of the Pelech principle to very young and short service employees with entry level jobs.

Relevance of Physical or Mental Disabilities to Length of Notice Period:

The court accepted and applied submissions by plaintiff's counsel that the length of notice period could in proper circumstances be extended by particular problems facing the plaintiff in terms of re-employment. Mr. Systad had knee problems with both knees. When dismissed, he was just about to go off work for left knee surgery, and at the time of trial he had not yet returned to an active job search because he was still unable to drive. He faced the prospect of further surgery on his other knee, a factor complicating his return to active employment.

Defence counsel argued that these circumstances were irrelevant and ought not to be taken into account when assessing the notice period. The court disagreed.

[25] Mr. Systad is 65 years-old and, while provincial legislation has been changed so that age 65 is no longer the date for mandatory retirement, I am satisfied that it will nevertheless be difficult for Mr. Systad to find employment in competition with a younger applicants for employment. I also take into account that his recent operation and the possibility that he will require further operations will make it more difficult for him to compete in finding comparable employment. As well, the availability of similar employment having regard to his experience, training and qualifications may not be available and he may be required to settle for jobs having considerable less remuneration. The possibility that he may require further surgery may well make him less desirable as a potential employee. Taking into account all of the factors set out in Bardal, supra, I am satisfied that the reasonable notice period is 18 months.

Modest Contingency Reduction for Damage Assessment Early in Notice Period:

The judgement was rendered only 6 months after the dismissal, thus 12 months remained during the notice period, and the defendant asked for a large deduction for the contingency that remunerative employment might be found during that period. The court only reduced the 18 month notice period by two weeks to reflect the contingency that Mr. Systad might earn income during the notice period.

[27] Taking into account the notice period of 18 months, the age of Mr. Systad, the number of years of his service, the type of work that he was undertaking, the possibility that his experience as a Container Lift Operator is specialized so that his skills and abilities are not readily transferable to other areas of employment, the level of responsibility, his efforts to date to find employment, and the information before the Court that his future employment may well be limited to employment at $14 per hour and not the $36.80 hourly wage that he was earning, I am satisfied that some contingency should be in place to reflect the possibility that Mr. Systad will find employment in the 12-1/2 months subsequent to this summary trial.

[28] Ray-Mont submits that the period of reasonable notice should be reduced by two months. There is very little information available regarding available employment given the skills of Mr. Systad. What is available allows me to conclude that what may be available will pay Mr. Systad less than 40% of what he was earning with Ray-Mont. In the circumstances, I provide a contingency equivalent to two weeks of his former salary. This contingency reflects the possibility of finding future employment but at a greatly reduced hourly wage. If I had any confidence in predicting that Mr. Systad would find employment at the salary he was receiving, I would have assessed the contingency factor at six weeks.

Mitigation of Damages:

The court refused to make any reduction in the notice period in spite of defendant's arguments of failure to mitigatge, writing:

[29] A further question which Ray-Mont raises is whether Mr. Systad failed to mitigate his damages. In Koos v. A&A Contract Customs Broker Ltd., [2009] B.C.J. No. 857, Rice J. set out the nature of this obligation as follows:

The plaintiff has an obligation to mitigate her loss, that is, to take such steps as a reasonable person in the plaintiff's position would take in her own interest to maintain her income and her position in her industry, trade or profession: see Smith v. Aker Kvaerner Canada Inc., 2005 BCSC 117, at para. 31. The onus is on the defendant to prove that the plaintiff has failed to mitigate or failed to take reasonable steps to mitigate. The defendant must show not only that the plaintiff failed to take steps to mitigate but also that had the plaintiff taken those steps she could likely have found equivalent employment: see Jorgenson v. Jack Cewe Ltd. (1978), 93 D.L.R. (3d) 464, 9 B.C.L.R. 292 at 296 (C.A.), aff'd [1980] 1 S.C.R. 812, 111 D.L.R. (3d) 577. (at para. 35)

[30] There was no evidence that, with diligent effort, Mr. Systad could have already secured alternative employment. Mr. Systad is only now able to work, having just recently recovered from his knee surgery. I think it highly unlikely that Mr. Systad would have been in a position to compete with those who could have started employment immediately when he would have not have been in a position to return to work until he has sufficiently recovered from his knee operation and until he could drive a vehicle again – not only to get to work but to operate comparable equipment in any new employment.

[31] Regard must be made to his physical and mental condition: Pereira v. Business Depot (c.o.b. Staples Business Depot), [2009] B.C.J. No. 1731 (S.C.) at para. 110. It is also appropriate to take into account the reasonable period of time to get over the shock of having his employment terminated: Smith v. Aker Cavaner Canada Inc. [2005] B.C.J. No. 150 (S.C.) where the following statement was made:

...I am satisfied that it is not necessarily a failure to mitigate where a finding could be made that a plaintiff has not immediately commenced a job search. I am satisfied that any employee should be given a reasonable period of time of having their employment terminated, to organize their thoughts as to how best to go about obtaining new employment, and to undertake the necessary research and preparation of resumes so that they are in a position to compete for available positions. (at para. 35)

[32] After his employment was terminated, Mr. Systad made only minimal efforts to find employment. As well, he did not take up the offer made to assist him in finding employment. When I combine the initial period of shock with the immobility caused by the necessary operation on his right knee, I conclude that Ray-Mont has failed to meet the onus of showing that Mr. Systad has failed to mitigate his damages. In this regard, I also take into account that reasonable mitigation efforts must take into account not only his current knee operation but the possibility that he will require further operations.

Not Appropriate to Deduct amounts for Employment Insurance premiums, Canada Pension Plan premiums, or Old Age Pension payments:

The court rejected the argument by defence counsel and deductions should be made for these premiums and payments.

BC Supreme Court Dismisses Just Cause Defence (Breach of Fiduciary Duty, Insubordination, Conflict of Interest, Disobedience, Incompetence)

The Honourable Madam Justice Loo of the British Columbia Supreme Court recently dismissed a defence of just cause in a wrongful dismissal case, with a comprehensive and thoughtful analysis of recent leading cases which guide the court on subjects including just cause, fiduciary duty of employees, incompetence, conflict of interest, insubordination, condonation, conflict of interest, and quantification of damages for failiure to give reasonable notice.

This decision was handed down in October, 2010, but the discussion about issues surrounding the just cause defence in a wrongful dismissal case is worth thoughtful review.

In Kokilev v. Picquic Tool Company Inc. the court wrote:

[142] In order to establish cause for dismissal without notice, the employer must prove that the employee's conduct, when viewed in all of the circumstances, was seriously incompatible with his or her duties, and that the conduct went to the root of the employment relationship: Panton v. Everywoman's Health Centre Society (1988), 2000 BCCA 621. An employer has a heavy onus to overcome.

[143] The approach to assessing whether the employee's conduct provides cause for dismissal is objective. Mr. McKenzie's view that the conduct was sufficient to establish cause (or the employee's view that it is not) is not determinative.

[144] The approach is not only objective, it is also contextual: the Court must consider "the particular circumstances surrounding the employee's behaviour ... factors such as the nature and degree of the misconduct, and whether it violates the 'essential conditions' of the employment contract or breaches an employer's faith in an employee" (McKinley v. BC Tel, 2001 SCC 38 (CanLII), 2001 SCC 38, [2001] 2 S.C.R. 161, at para. 39). This balances the employer's right to dismiss an employee for cause with the importance of both the work and the manner of dismissal to an employee's self-worth.

[145] Mr. Justice Iacobucci in McKinley, at paras. 53-54, outlined the principle of proportionality that underlies the contextual approach:

[53] Underlying the approach I propose is the principle of proportionality. An effective balance must be struck between the severity of an employee's misconduct and the sanction imposed. The importance of this balance is better understood by considering the sense of identity and self-worth individuals frequently derive from their employment, a concept that was explored in Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (S.C.C.), [1987] 1 S.C.R. 313, where Dickson C.J. (writing in dissent) stated at p. 368:

Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being.

This passage was subsequently cited with approval by this Court in Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (S.C.C.), [1992] 1 S.C.R. 986, at p. 1002, and in Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (S.C.C.), [1997] 3 S.C.R. 701, at para. 95. In Wallace, the majority added to this notion by stating that not only is work itself fundamental to an individual's identity, but "the manner in which employment can be terminated is equally important".

[54] Given this recognition of the integral nature of work to the lives and identities of individuals in our society, care must be taken in fashioning rules and principles of law which would enable the employment relationship to be terminated without notice. The importance of this is underscored by the power imbalance that this Court has recognized as ingrained in most facets of the employment relationship. In Wallace, both the majority and dissenting opinions recognized that such relationships are typically characterized by unequal bargaining power, which places employees in a vulnerable position vis-à-vis their employers. It was further acknowledged that such vulnerability remains in place, and becomes especially acute, at the time of dismissal.

[146] Picquic also suggests that Mr. Kokilev was terminated on the basis of insolence and insubordination.

[147] The law relating to termination without notice on the basis of insubordination was discussed in Adams v. Fairmont Hotels & Resorts Inc., 2009 BCSC 681 (CanLII), 2009 BCSC 681, at paras. 277-279:

[277] Conduct amounting to insubordination sufficient to establish cause for dismissal was described half a century ago by Lord Evershed in the oft-cited decision of Laws v. London Chronicle (Indicator Newspapers), Ltd., [1959] 2 All E.R. 285 at 287 (Eng. C.A.):

[S]ince a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is, no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard – a complete disregard – of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master and that, unless he does so, the relationship is, so to speak, struck at fundamentally.

[278] As noted in Laws, insubordination will not constitute cause unless the employer establishes that the employee breached an "essential condition of the contract of service". That may occur, said the Court in of Appeal in Panton at para. 33, where the employee has wilfully defied a "clear and unequivocal" instruction or refused "to carry out a policy or procedure well known by the employee to be central to the fulfillment of the employer's objectives".

[279] The Court in Panton also cited its earlier decision in Stein v. British Columbia (Housing Management Commission) 1992 CanLII 4032 (BC C.A.), (1992), 65 B.C.L.R. (2d) 181, 41 C.C.E.L. 213 (C.A.) where, after citing Laws, Southin J.A. said the following at 4:

I begin with the proposition that an employer has a right to determine how his business shall be conducted. He may lay down any procedures he thinks advisable so long as they are neither contrary to law nor dishonest nor dangerous to the health of the employees and are within the ambit of the job for which any particular employee was hired. It is not for the employee nor for the court to consider the wisdom of the procedures. The employer is the boss and it is an essential implied term of every employment contract that, subject to the limitations I have expressed, the employee must obey the orders given to him.

[148] Picquic also relies on the preceding passage from Stein, and the one that immediately follows it:

It is not an answer for the employee to say: "I know you have laid down a rule about this, that or the other, but I did not think that it was important so I ignored it."

[149] In Stein the plaintiff was Regional Manager of the defendant on Vancouver Island. The purpose of the defendant was to provide public housing to those in need. The plaintiff was aware that housing was to be allocated on the basis of a written policy and procedure that implemented a point score system. The plaintiff knew he was to implement the point score system but failed to do so. The Court of Appeal, in dismissing his appeal from the trial judgment (dismissing his wrongful dismissal action) found that the plaintiff had fundamentally disregarded an essential condition of his contract of employment.

[150] However, Stein cannot be said to stand for the proposition that disobeying every lawful order of an employer amounts to cause for dismissal. In that case Madam Justice Southin, in dismissing the employee's appeal, quoted the following passage from Laws v. London Chronicle (Indicator Newspapers) Ltd. with approval:

I think that it is not right to say that one act of disobedience, to justify dismissal, must be of a grave and serious character. I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think, that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions.

[151] I do not think it can be said that Mr. Kokilev ever refused to carry out the tasks that were essential conditions of his contract of employment.

[152] Picquic relies on Smith v. Peace Arch Community Services (1999), 89 A.C.W.S. (3d) 519 (B.C.S.C). However, the facts in that case are clearly distinguishable; the plaintiff employee expressly knew that his wife was prohibited from being paid from public funds because of a conflict of interest.

[153] Picquic does not suggest that any of the incidents viewed separately gives rise to just cause to terminate Mr. Kokilev's employment. Rather, it argues that the incidents viewed cumulatively afford grounds for just cause on the basis of the principles enunciated in Atkinson v. Boyd, Phillips & Co. 1979 CanLII 478 (BC C.A.), (1979), 9 B.C.L.R. 255 (C.A.) at paragraphs 45 and 46 where the Court agreed with the following quote from Ross v. Willards Chocolates Ltd., [1927] 2 D.L.R. 461 at 469-470 (Man. K.B.):

It is not always easy for an employer who finds an employee thoroughly unsatisfactory and deficient in obedience or competence to point to a single instance which would justify his summary dismissal. But I do not think it is necessary to rely upon such a single instance where the employee's conduct shows a general laxity and disregard of instructions in a business requiring energy, accuracy of accounts, and strict adherence to instructions, such as this business required.

[154] However, the performance and misconduct of the employee in that case was much more egregious than Mr. Kokilev's. There, despite repeated warnings to improve, the plaintiff's conduct and attitude alienated the defendant's clients, caused the defendant to lose business and other employees to quit. The plaintiff also refused to carry out the defendants specific instructions.

[155] Picquic also relies on Lowery v. Calgary (City), 2002 ABCA 237 (CanLII), 2002 ABCA 237, where the Alberta Court of Appeal stated at para. 3:

[3] ... Summary dismissal for incompetence is justified by significant breach of contract on the part of an employee. Where the employer alleges cumulative cause for such dismissal, it must prove on the authority of Atkinson v. Boyd, Phillips & Co. Ltd. 1979 CanLII 478 (BC C.A.), (1979), 9 B.C.L.R. 255, with which we respectfully concur on this point, that:

1. The employee was given express and clear warnings about his performance.

2. The employee was given a reasonable opportunity to improve his performance after the warning was issued.

3. Notwithstanding the foregoing, the employee failed to improve his performance.

4. The cumulative failings "would prejudice the proper conduct of the employer's business".

[156] In the case at bar, Mr. Kokilev was given a warning after the David Bonner incident on November 5, 2002 and his performance improved and his salary was increased.

[157] Mr. McKenzie concedes that he did not give Mr. Kokilev a written warning after the flood incident to communicate that he considered Mr. Kokilev's conduct had "undermined" his plans. There is no evidence that the flood incident in November 2003 was ever raised with Mr. Kokilev until this litigation was commenced, and even then the flood incident is not referred to in the statement of defence or in the further and better particulars delivered in February 2010.

[158] Mr. McKenzie agrees that after the flood Mr. Kokilev worked long hours and provided the necessary financial details and documents required by the insurance adjusters in order to substantiate the company's loss. He agreed that at that time they "had a reconciliation" and he was glad that Mr. Kokilev was employed by the company because he did a professional job and supported the company with the challenges that it faced after the flood.

[159] Mr. McKenzie also agreed that from that time forward until May 4, 2007 their relationship improved, and it was a reasonably good relationship. There were several instances of minor disagreements, but "none that caused me to want to fire you".

[160] Mr. Kokilev argues that it is too late to rely on the David Bonner incident or the flood incident on the basis of condonation. I agree.

[161] The principle of condonation is explained in the frequently cited passage from McIntyre v. Hockin, [1889] O.J. No. 36, 16 O.A.R. 498 (Ont. C.A.), at para. 13:

[13] It may be proper, however, to add a few words on the subject of condonation. When an employee becomes aware of misconduct on the part of his servant, sufficient to justify dismissal, he may adopt either of two courses. He may dismiss, or he may overlook the fault. But he cannot retain the servant in his employment, and afterwards at any distance of time turn him away. It would be most unjust if he could do that, for one of the consequences of dismissal for good cause is, that the servant can recover nothing for his servant's services beyond the last payday, whether his engagement be by the year or otherwise: Smith's Law of Master and Servant, 4th ed., p. 220; Boston Deep Sea Fishing Co. v. Ansell, 39 Ch. D. 339. If he retains the servant in his employment for any considerable time after discovering his fault, that is condonation and he cannot afterwards dismiss for that fault without anything new. No doubt the employer ought to have a reasonable time to determine what to do, to consider whether he will dismiss or not, or to look for another servant. So, also, he must have full knowledge of the nature and extent of the fault for which he cannot forgive or condone matters of which he is not fully informed. Further, condonation is subject to an implied condition of future conduct, and whenever any new misconduct occurs, the old offences may be invoked and may be put in the scale against the offender as cause for dismissal.

[162] Mr. McKenzie may not have liked Mr. Kokilev's response to his assigned tasks at the meeting of May 4, 2007 but I do not agree that he was insubordinate or insolent. He may have made some negative comments, from Mr. McKenzie's point of view, but there is no evidence that he failed to carry out his assigned task.

[163] At the meeting of October 25, 2007 Mr. Kokilev may not have explained why the bonus plan was in a deficit position, but again, at worst, Mr. Kokilev may have exercised poor judgment or made inappropriate comments (from Mr. McKenzie's point of view). But he cannot be said to have repudiated an essential condition of the contract of employment. Mr. McKenzie said that he asked for "input". He received input, and cannot now complain that Mr. Kokilev was disobedient or insolent.

[164] The meeting of January 30, 2009 was unfortunate because Mr. Kokilev was left in the dark before the meeting. Without being told the purpose of the meeting, he was put on the spot and asked for his views when Mr. McKenzie knew that he thought it was not financially prudent for the company to change carriers. While Mr. Kokilev may not have provided the comments that Mr. McKenzie wanted to hear, his response was not surprising.

[165] I conclude that none of the incidents, relied on either separately or cumulatively, establish just cause.

[166] I find that Mr. Kokilev genuinely believed that changing carriers was not in the best interest of the company. Simply because Mr. Kokilev may have been upset at the meeting and said things that were not to Mr. McKenzie's liking, does not amount to a conflict of interest or breach of fiduciary duty. Nor can it be said that Mr. Kokilev "undermined" Mr. McKenzie or Picquic.

[167] The word "undermine" is defined in the 9th edition of The Concise Oxford Dictionary as to "injure (a person, reputation, influence, etc.) by secret or insidious means" (Oxford: Clarendon Press, 1995, at 1522).

[168] The Gage Canadian Dictionary defines "undermine" as to "injure or damage by secret or unfair means: The editorial was obviously intended to undermine her influence in the community" (Toronto: Gage Educational Publishing Company, 1983, at 1598).

[169] Picquic suggests that Mr. Kokilev was acting in a conflict of interest because he wanted Mrs. Kokilev to remain the broker. Mr. Kokilev admitted in cross-examination that he was aware that his wife received a commission (it was approximately $2,000) that formed a part of their household income. Mr. Kokilev was never asked the question, but no doubt he would have preferred that his wife remain the broker, but again, that does not create a conflict of interest.

[170] Black's law Dictionary, 9th ed. (St. Paul, MN: West, 2009) contains the following definition:

conflict of interest. (1843) 1. A real or seeming incompatibility between one's private interests and one's public or fiduciary duties. 2. A real or seeming incompatibility between the interests of two of a lawyer's clients, such that the lawyer is disqualified from representing both clients if the duel representation adversely affects either client or if the clients do not consent [at 341].

[171] In Pirie v. Armstrong, 2004 BCSC 1346 (CanLII), 2004 BCSC 1346, Bouck J. stated at para. 14: "An allegation of conflict of interest appears to be more in the nature of a political term than it is a legal one. A better legal term seems to be a breach of a fiduciary duty."

[172] The Canadian Oxford Dictionary defines "conflict of interest" as "the situation of a politician, corporate officer, etc., whose private interests might benefit from his or her public actions or influence" (Toronto: Oxford University Press, 1998, at 297).

[173] I have already concluded that Mr. Kokilev was not a fiduciary, and even if he was, Picquic has not established any breach of fiduciary duty.

[174] I conclude that Picquic has failed to establish that it had just cause to terminate Mr. Kokilev's employment. The next issue is therefore the appropriate period of notice or salary in lieu of notice.

SUMMARY AND CONCLUSION

Once again, the courts of British Columbia have taken a contextual approach to just cause, with a focus on proportionality in the scope of permissible discipline, and a long term employee who did not conduct himself entirely appropriately has yet not been found liable to dismissal without any notice. For summary dismissal to be possible, the defendant employer must be able to produce very clear evidence that the employment relationship has been repudiated by some conduct on the part of the plaintiff employee.

This will not be an easy onus to discharge.

BC Court of Appeal on Mitigation, Quit v/s Dismissal, and Damages for Bad Faith Dismissal

On February 18, 2011, in Beggs v. Westport Foods Ltd., 2011 BCCA 76 the BC Court of Appeal handed down reasons case which involved issues which often arise in a wrongful dismissal claim.

The plaintiff was a long service permanent part-time clerk in the defendant's grocery store. She had in the past taken substantial periods of time off work for personal reasons and had returned to work without difficulty. After a fire at her residence, the plaintiff became disabled due to anxiety and depression. She stayed off work, without telling her employer why, and after a month the employer issued an ROE on the basis that she had quit.

The plaintiff succeeded.

The court considered the appropriate legal test as to whether employment has ended by a resignation (a quit) or an actual dismissal. The court said that a dismissal must be proven on an "objective" standard but a quit involves both an objective and subjective element. That is, there must be satisfactory proof that leads the court to conclude the employee intended to quit. That was lacking in this particular case.

The court also decided that the employer's offer to have the employee return to work was not an offer which the employee was required to accept in the circumstances, referring to Evans v. Teamsters Local Union No. 31, 2008 SCC 20, [2008] 1 S.C.R. 661. The essential reason the court decided the possibility of a return to work had been effectively foreclosed by conduct of both parties and their lawyers.

The BCCA overturned an award of damages by the trial judge on the basis of bad faith conduct at the time of dismissal. The Court referred to Honda Canada Inc. v. Keays, 2008 SCC 39 for the proposition that in suitable circumstances, employees may be awarded damages as a result of the bad faith conduct of the employer at the time of discharge, but found these circumstances lacking in the particular facts. On the facts found by the trial judge, there was no malice or lack of good faith on the part of the employer. The dismissal was essentially found to be the result of a failure to communicate.

Jamieson v. Finning International Inc.

On June 12, 2009, the BC Supreme Court awarded a 53 year old "Millyard Systems Manager" with slightly more than 20 years' service, damages based on a 19 month notice period, with a one month deduction for the possibility of mitigation earnings, as the decision was handed down well in advance of the expiry of the notice period.

The full decision is at Jamieson v. Finning 2009 BCSC 861.

Reference was made to the specialization of the plaintiff's skills which were focused on forestry millyard equipment in the depressed economy.

Mr. Jamieson was awarded lump sum damages to compensate for the loss of a car allowance including a component to reflect ongoing lease commitments for a leased truck not needed after the termination.

Judge Cohen undertook a thorough review of recent British Columbia cases where the courts have given decreased weight to the factor of character of employment - where employees not in senior management ranks are increasingly able to obtain lengthy notice periods.

The plaintiff was also compensated for loss of Employee Share Purchase Plan ("ESPP") benefits during the notice period in spite of language which said such benefits ended when the employee was dismissed for "any reason". Regardless of this language, damages were found appropriate as the termination of the plaintiff was not lawful, but a breach of contract. In effect the judge found that the employment agreement should be read as if written "any lawful reason".

Jamieson's claim continues in regard to pension losses. He is advancing a claim that Finning unlawfully decreased the earnings upon which it agreed to pay pension benefits, and a further pension claim because his pension is less after the wrongful dismissal than it would have been if he had received proper notice.

BC Supreme Court - $100,000 Punitive Damage Award

In Marchen v. Dams Ford Lincoln Sales Ltd. 2009 BCSC 400, the Honourable Mr. Justice Goepel of the British Columbia Supreme Court handed down a significant decision on March 26, 2009, involving employment law issues.

The defendant car dealership dismissed an apprentice mechanic without alleging cause but because of an honestly held but completely unfounded belief that he may have been involved in dishonest activity on the part of his brother.

The court refused to order "moral damages" following Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R 362, because at the time of dismissal, the employer's conduct could be explained as, at least, a belief in possible misconduct.

However, the court awarded $100,000 in punitive damages because, when the action was commenced, the defendant embarked on a course of action intended to mislead the plaintiff and eventually the court itself as to the real reasons for dismissal.

The defendant falsely claimed that the dismissal was for lack of work, which would have been a legitimate way to end the apprenticeship contract.

The defendant's conduct after the dismissal was found to be blameworthy pursuant to the principles in Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002]1 S.C.R. 595.

The case is an example of an instance where an individual is wrongfully dismissed during the currency of an apprenticeship contract and receives additional damages for "loss of status" and "loss of training".