Terry David Mulligan v. CTV Television (2008)

In this wrongful dismissal matter we represented a well known and highly accomplished and respected broadcaster and actor in negotiations flowing from a contract dispute with CTV. The dispute received media attention, and working closely with our client, we were able to resolve the matter quickly and in a manner satisfactory to all parties.

  Vancouver Sun Article August 24, 2007

Louise Borsato v. Atwater Insurance (June, 2008) VIEW PDF

In this employment law action we acted for a long service manager of an insurance agency.  The issue was a contract that she negotiated with a previous owner (now deceased) where she agreed to work 30 hours per week.  Over time she worked longer hours, always doing what was required to ensure the proper operation of the agency.  When the agency was sold six years later, the new owner did not inquire about her weekly hours of work.  She continued working for the new owner for approximately 10 years working various hours with no complaints from the new owner.  In 2006 the new owner “discovered” she was sometimes scheduling herself to work 4 day weeks rather than 5 day weeks.  The new owner then unilaterally reduced her salary by 1/5.  At issue was whether the plaintiff’s practice of working longer hours had become a term of her contract such that she was required to work 40 hours or 5 days per week.  The trial judge determined that the plaintiff had never received any consideration for agreeing to work 40 hours per week or 5 days per week and that the original contracted 30 hour week contract was all that was legally required.  The employer’s conduct in reducing the plaintiff’s salary unilaterally was held to constitute a constructive dismissal.  The employer was ordered to pay the plaintiff the salary that had been withheld plus damages based on a 15 month notice period.

Kris Toivanen v. PMC Sierra (May, 2008) VIEW PDF

This is the fourth plaintiff we have had to bring to Court to recover wrongful dismissal damages from a local high tech employer arising from downsizing efforts.  In a previous decision (Lee, Lewis and Eden v. PMC) we successfully advocated a range of notice periods for similarly situated, wrongfully dismissed employees.  Despite the earlier decision, the employer was unwilling to heed the Court’s determination of reasonable notice periods.  This required us to again go to Court with Mr. Toivanen’s case.  The results were consistent with the earlier decisions.  Mr. Toivanen was 38 years old with 8.5 years of service in a specialized technical position.  He received 11 months notice plus employment benefits that would have accrued within the notice period.  This included stock options, the value of which had appreciated following the termination of his employment.

Hans v. Dynagent Technologies (April, 2008) VIEW PDF

In an action on behalf of a dismissed employee, where there were real concerns about the ability to recover a judgment against the defendant employer, we successfully defended garnishing process which had the effect of placing assets "in court" for payment of the eventual award. The wrongful dismissal case involved a claim by an employee for a termination payment that was "guaranteed", and thus a liquidated claim capable of supporting pre-judgement garnishment, not a typical claim for damages for wrongful dismissal, which would not permit attachment process before judgment.

Limo Jet Gold Express v. Public Service Alliance of Canada, Local 05/21081 Union

Arbitration Award (March, 2008) VIEW PDF

In one of the first cases of its kind in Canada, our client, a small business, was awarded punitive damages of $100,000 against a trade union that had gone on an illegal strike for 12 days.

It was held the Union improperly stopped work over a complaint about a relative of one of the Union executives.  When the Union did not get its way, it forced its members to withdraw their services and threatened to put the small company out of business unless its demands were met.  It was also found on the evidence we presented that the Union had attempted to intimidate workers who wanted to go back to work.   The decision vindicates the small business and communicates a strong message.  The business, was also awarded over 50,000 in general damages. Former Cabinet Minister the Honourable Herb Dhaliwal, the owner of the business was supported by the Arbitrator in the courageous position he undertook.

Punitive damages are exceptional damages awarded in the rarest of circumstances.  They are meant to send a message certain conduct will not be tolerated.  The law has only recently allowed punitive damages to be awarded in circumstances such as these and this case will be an important precedent.  

Paddy v. Starbucks (BCSC Decision, January, 2008) VIEW PDF

In this employment law case, we represented a 14.5 year National Account Manager, Business Development in a claim for wrongful dismissal damages following his termination without notice. The court awarded damages based on a 14 month notice period, without further deduction for mitigation opportunities, although the trial occurred only 4 months after dismissal. The plaintiff was compensated for monies expended to obtain replacement long term disability coverage, as well as other coverages for life insurance, basic and extended medical - in addition to non-salary financial income compenents such as RRSP matching.

Lewis, Lee & Eden v. PMC Sierra (BCSC Decision, September, 2007) VIEW PDF

We represented three software engineers dismissed on the same day as part of a group layoff. The wrongful dismissal case included issues that, aside from the insufficient length of notice, the employer refused to include significant compensation components such as bonuses and stock options. We were successful in securing judgment for these employees based on their complete compensation package. The hearing occurred less than 4 months after dismissal. Proceeding on behalf of multiple employees can yield significant cost savings.

Steve Earl v. Canada Bread Company BCSC Decision (September, 2007) VIEW PDF

In this wrongful dismissal action we successfully represented a long service Territory Manager who started as a delivery driver and was promoted over time to mid-level management. Upon dismissal, the employer had offered to continue to pay Mr. Earl's salary and some benefits for up to 12 months, or earlier if he found new employment, rather than damages in a lump sum. The defendant argued that the principle applied by the Supreme Court of Canada in Hamilton v. Open Window Bakery Ltd. [2004] 1 S.C.R. 303 (whereby damages are to be assessed against a contract breaker as if the contract breaker had taken advantage of all contratual means to minimize its exposure) had no application in a typical wrongful dismissal action. The court, following Tull v. Norske Skog 2004 BCSC 1098, granted the plaintiff lump sum damages based on a 17 month notice period, with a 2 month "mitigation" reduction for the possibility that he would find suitable work during the period.

Remarkably, the decision was rendered only 4 months after Mr. Earl was dismissed, as we took advantage of the expedited procedures available under the BC Rules of Court.

Poleschuk and B.C. Lottery Corporation

In this wrongful dismissal matter we represented the President and CEO of the B.C. Lottery Corporation in negotiating a fair settlement in the event of the decision of the Corporation to dismiss out client without cause. There was much to be negotiated in regard of the true meaning of the provisions of the Employment Contract and relevant Legislation. The matter was resolved without a law suit and resulted in a well publicized settlement on a number of important issues including about $600,000 in payments to our client.

Globe & Mail Article August 24, 2007
 Province Article August 24, 2007

Macaraeg v. E Care Contact Centers Ltd. BCSC Decision (Dec. 2006)
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This is a class action we brought on behalf of Ms. Macaraeg and all other employees of the defendants who worked but were not paid for overtime. We successfully persuaded the court to exercise jurisdiction over the employee's claims for overtime based on the British Columbia Employment Standards Act. The court concluded that the plaintiff was expressly not limited to a claim under the "machinery" of the said Act. The decision has broad implications for class actions in the province. The case was later overturned by the Court of Appeal, and leave to the Supreme Court of Canada was refused without reasons.

B.C. Hospitalist Doctors - and Ministry of Health

In this employment law matter we provided strategic advice and negotiation expertise to a group consisting of all contract medical doctors working as Hospitalists across the province. We worked closely with the doctors leadership group and reported to the full membership in successfully negotiating superior terms and conditions of employment necessary to make the hospitalist programs sustainable for the good of patient safety for the future of British Columbia.

 Vancouver Sun Article June 15, 2006
 Vancouver Sun Article June 30, 2006
 Extract from "The Hospitalist" August, 2006
 Wachter's World web article October 23, 2007

Toivanen v. Electronic Arts - BC Human Rights Tribunal Decision (2006)
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We successfully represented a senior creative producer whom we established had been dismissed due to a disability. The wrongful dismissal action included a claim that the claimant had been working extremely long hours in the video gaming development industry. The Award of the Human Rights Tribunal in this case of $20,000 for ‘injury to dignity, feelings and self-respect’ is the largest in BC to date. The Tribunal granted severance pay without any deduction for monies received from long term disability insurance. The overall award of approximately $150,000 included the value of stock options as well as lost salary, bonuses and legal fees.

 Vancouver Sun Article August 16, 2006
 BC Human Rights Coalition Newsletter Oct. 2006
 Lang Michener, Labour & Employment Newsletter - comment on Toivanen

Lynn Hainsworth v. World Peace Forum Society BCSC Decision (2006)
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In this employment law matter we successfully represented the co-executive director of the Society in a wrongful dismissal claim based on a verbal fixed term contract. We successfully obtained judgment for our client by overcoming a defence that she had quit. The Peace Society was found to have wrongfully demoted Ms. Hainsworth from her senior role and effectively constructively dismissed her from her employment by the demotion. She was awarded damages equivalent to her salary for the balance of her fixed term contract, costs relating to early termination of her lease, and legal costs. The case is an important decision on the principles of constructive dismissal.

 Vancouver Sun Article May 25, 2006
 Vancouver Courier Article June 2, 2006

Rogers v. Eurocan - BCSC Decision (2006)
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In this wrongful dismissal matter, we successfully recovered Judgement from one of B.C.'s largest Pulp mills, on behalf of a 39 year service middle manager. An allegation was made that our client was thinking of taking home a small quantity of motor oil. The employer relied on this as "attempted theft" and alleged just cause for dismissal. The evidence was was entirely lacking and the employer was unable to make out this accusation. Our client succeeded.

Mr. Rodgers was vindicated and recovered Judgement running well into the six figures, plus costs.

Parks v. Vancouver International Airport Authority - BCSC Decision (2005)
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In this wrongful dismissal action we represented an employee who had refused to accept a proposed transfer in the employer’s business, which the employer characterized as a promotion. The employer fired the employee for his refusal, taking the position he had quit. We successfully argued that an employer may not unilaterally change fundamental terms and conditions of an employee's employment without either: (a) establishing a contractual right to make such changes, or (b) giving the employee reasonable notice of such changes, even if the proposed change is a promotion. Wrongful dismissal damages were recovered.

Orlando v. Vancouver Coastal Health Authority - BCSC Decision (2005)
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We represented a hospital administrator in a claim for wrongful dismissal damages. The Defendant took the position that it owed our client only 12 months notice - they denied that she was entitled to the banked sick leave time or the retiring allowance referred to in her employment contract. The Defendant refused to recognize our client's past service with other health-care employers dating back to 1988. The Court found in favour of our client on all claims and recognized her full past employment service. Our client received an award of 18 months notice (the most allowed for such a public servant by law) plus payments for banked sick leave and retiring allowance. This decision is important for employment law issues concerning public sector employees.

Wilson v. UBS Securities - BCSC Decision (2005)
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We represented an equities trader that had worked for her entire career in Vancouver trading Canadian equities for institutional clients. When her employer decided to relocate the Vancouver office to San Francisco, she decided that she did not want to move and raise her young family in the United States. Her employer shut the office and refused to pay her severance. The Court found that she was not obligated to move to San Francisco to keep her job and awarded wrongful dismissal damages of roughly $625,000.

Sinclair v. Intrawest Resort Ownership Corp.. - BCSC Decision (2005)
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In this employment law matter we successfully defended our client Intrawest Corporation from a claim of wrongful dismissal. We had worked with our client to develop a fair and progressive employee performance system which was referred to with approval by the Court of Appeal in this case. The Court dismissed the action against our client and awarded costs to our client.

Richard Tull v. Norske Skog Canada Ltd. - BCSC Decision (2004)
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In this leading employment law case we represented a senior manager at Norkse Skog's Crofton pulp and paper mill who was wrongfully dismissed. Mr. Tull had worked for the defendant and its predecessors for 14 years, and was awarded damages based on a 22 month notice period. Mr. Tull's claim included a claim for damages for losses suffered by reason of the company's failure to contribute to his basic and supplemental pension plan.

The reasons for judgment contain an excellent analysis of the issue of whether an employer is permitted to pay damages by way of salary continuation, an important and then unresolved issue of some importance in employment law in BC. The trial judge accepted arguments presented on behalf of Mr. Tull that salary continuation was not appropriate in the circumstances. More importantly, the learned judge made certain general observations that suggested the court would not find salary continuation to be appropriate in any circumstance where the employer failed to give proper working notice.

Chiang v. Intrawest Corporation - BCSC Decision (2002)
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Here we represented a corporate defendant resisting a claim of wrongful dismissal by a managerial employee. After a five day trial, we were entirely successful in proving that our client had just cause for dismissing the person and her claim was dismissed and costs were paid to the corporation by the plaintiff. It is one one of the rare employment law cases where an employer successfully defends a wrongful dismissal claim based on just cause.

Gillies v. Goldman Sachs - Trial Decision (2000)
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Gillies v. Goldman Sachs - BCCA Decision (2001)
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We represented a senior financial executive at trial in a successful claim against his employer for wrongful dismissal damages, obtaining an award valued at almost $500,000.

  Financial Post Article March 10, 2000, after trial judgement.

The trial decision did not include an award or damages for our client's failure to participate in a lucrative Initial Public Offering. On appeal to the Court of Appeal, the trial decision was reversed, and or client's entitlement to participate in the IPO was confirmed. In its reasons, the Court of Appeal said:

"… for persons of specialized employment skills, nearing the older end of the work force spectrum for the occupation, operating at high levels of responsibility in circumstances in which replacement employment is not readily available, 12 months will not be an unusual notice period and longer notice will be the norm."

The case has now been settled on the payment of a substantial sum to our client.

McKinley v. BC Tel – BCCA Decision (1999)
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McKinley v. BC Tel – Supreme Court of Canada Decision (2001)
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This wrongful dismissal proceeding, which has become a leading case in Canada on a number of important employment law issues, began as a jury trial in BC Supreme Court and found its way to the Supreme Court of Canada.We successfully represented the plaintiff, a senior BC Tel executive. The jury awarded substantial damages, but on appeal to the BCCA, our client was disentitled to damages. The Court referred to possible finding that the plaintiff had not fully disclosed advice received from his doctors, about his medical condition. The Court of Appeal found that this non-disclosure by the plaintiff may have been "dishonesty" and therefore justified summary dismissal.

We brought the wrongful dismissal case before the Supreme Court of Canada the court overturned the Court of Appeal decision. In it's judgement, the SCC made this important statement:

"… 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."

Mosher v. Epic Energy - Trial Decision (1999)
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Mosher v. Epic Energy - BCCA Decision (2001)
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In this proceeding, we represented the defendant, an company in the oil exploration business, whose primary operations are located in the Crimea, in a successful defence of an action in which the plaintiff sought damages for the termination of his employment, and also damages for an alleged breach of an obligation to deliver incentive stock options. The plaintiff sued on the basis of a fixed term written agreement - the main issue on appeal related to the issue of mitigation. The Court of Appeal confirmed that a plaintiff with a fixed term employment contract was still obliged to mitigate his damages, and the plaintiff’s action was dismissed because he had not done so.

Fleckenstein v. Deutsche Bank - Trial Decision (2000)
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Fleckenstein v. Deutcshe Bank - BCCA Decision
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Gilchrist v. Western Star - Trial Decision (2000)
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We represented the plaintiff in this action which was originally resolved in our client's favour by way of a motion for Summary Judgment, but later reversed by the Court of Appeal and sent back to Trial. In the meantime we had settled a number of important issues in favour of our client. We went back to trial on the issue of entitlement to certain stock options. At trial we were successful in establishing our client's entitlement to such options, and damages of several hundreds of thousands of dollars were awarded, plus costs.

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La Croix v. Nanaimo General Hospital - Trial Decision (2000)
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We represented a Hospital Board in defending a wrongful dismissal action brought y an administrator, and in respect of a number of crucial employment law issues taken against our client through his counsel. We were successful in this defence.

Jostens Canada Ltd. v. Gibson's Studio Ltd. - Court of Appeal Decision (1999)
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This is a leading employment law decision in British Columbia determining how to calculate damages for unfair competition, breach of confidence and breach of confidence by departing employees. We represented the injured employer and we were successful in recovering judgment for substantial damages and costs.

Napier Inc. v. Sea to Sky Innovations - BCSC Decision (2001)
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In this employment law case we represented departing employees in the situation where what we considered to be a groundless allegation of breach of confidence and trade secrets as brought. We were successful in requiring the employer to particularize what, if any, trade secrets they claimed had been removed before compelling the departing employee from disclosing their own products and formulas. This judgment sets out with clarity the threshold which must be met by an employer who seeks to sue departing employees.

Napier Inc. v. Sea to Sky Innovations - BCSC Decision (2002)
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In this careful and complete judgement, the Supreme Court threw out as unreasonable and unenforceable, a series of restictive clauses in the employment contracts of certain departing employees for whom we act.

StockWatch USA picked up the story in an accurate, if colourful, report on the Judgement.

And GlobeInvestor.com has published an article about the BCSC decision vacating the injunction.

Napier Inc. v. Sea to Sky Innovations - BCSC Decision (2002)
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In the final segment of our defence strategy in this case we were successful in having the Court strike out the restrictive covenants in employment contracts of our clients. This lead to the dicontinuance of the case against our clients and the end of the employment law litigation by agreement of the parties.

Purolator v. Public Service Alliance - BCSC Decision (1998)
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We represented a nationally significant employer in respect of a decision of an arbitrator in a labour matter pursuant to the Canada Labour Code. We were successful in having the decision quashed, on the basis that the arbitration decision was patently unreasonable.

Rossmo v. Vancouver Police Department - BCSC Decision (2002)
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