In Dwayne Carson v. Coastland Wood Industries Ltd, we represented the plaintiff in a successful claim for wrongful dismissal damages.  TevlinGleadle's Chris Forguson was successful counsel for Mr. Carson.

Notice Period:

The plaintiff had worked for the employer for 23 years in various jobs.  He had worked himself up through the ranks to a management role of Yard Log Manager, though he had been assigned to duties of Equipment Manager for a short period before his dismissal.  He was 47 years old at the time of termination of employment.  The court concluded that available employment was not going to be readily available due to Mr. Carson's educational and employment background, and the fact that he lived and worked in a relatively small community without a great number of similar jobs.

The court wrote:

"[39] From 1993 until 2009, as the log area manager, he had been responsible for management of between 14 and 25 employees, the management of log deliveries, scaling of logs and the flow of logs to the mill. When he was appointed his position of equipment manager, his salary was maintained at the same level as his former position with the base salary of $90,105 per annum. I infer from the fact that his salary was continued at that level, that the employer continued to regard the position as one that involved significant and important responsibilities. Carson v. Coast/and Wood Industries Ltd. Page9

[40] Mr. Carson was not, at the time of his termination, as I understand the facts of this case, in a direct reporting relationship to senior management. The removal of any responsibility for the management of personnel leads me to conclude that his position, as I have already said, is properly characterized as a low level management position at the time of dismissal.

[41] His length of service of over 23 years militates in favour of a significant notice period. At the age of 47, Mr. Carson is a mature employee with the benefit of experience in his field, which is of course a somewhat narrow field. He is not so old that age is a major deterrent to him securing other employment. However, it is nonetheless a factor that I do take into account.

[42] I turn now to the availability of similar employment. With a grade 9 education and no formal professional or trade qualifications, Mr. Carson is unlikely to secure employment that pays as well as his former position unless he is able to find work that involves the management of a fleet of heavy equipment, or a managerial position at another log sorting operation.

[43] His wife and other members of his family are all employed in the Nanaimo area. There are a limited number of employers who could provide him with comparable employment in that area. As I have already noted, Mr. Carson has made efforts to seek out comparable employment, as yet without any success.

[44] Taking all of these factors into account, I find that the reasonable period of notice is 20 months."

No Mitigation Deduction:

In wrongful dismissal cases, where claims come on for trial before the expiry of a reasonable notice period, courts are required to consider whether there is evidence that the dismissed employee will earn money during the balance of the notice period.  The court considered this issue, and failed to deduct anything from damages in respect of the remaining 10 month period, on the basis that negative contingencies were not outweighted by positive contingencies.  The court wrote:

"[57] Finally, I turn to the question of whether there should be a further reduction or the contingency of the plaintiff finding new employment before the expiry of the notice period. In Albach v. Vortek Industries Ltd., 2000 BCSC 1228 at para. 22, Mr. Justice Brooke emphasized that the court must take into account both positive and negative contingencies.

[58] Here, there is a possibility that the plaintiff might find new employment before the expiry of the notice period. The plaintiff has skills and experience, but only in a field where his opportunities are restricted. He has no formal qualifications. He is not in a position to relocate to seek alternate employment. The number of prospective employers in the Nanaimo area is limited, and so far, the plaintiff has had no success in securing alternate employment.

[59] In the particular circumstances of this case, I am not persuaded that there is a real and substantial possibility that the plaintiff will find alternate employment within the remaining 10 months of what I have determined to be the effective notice period, and, accordingly, I would make no further deduction for this contingency."

The Vancouver Province has reported on a BC Supreme Court decision by the Honourable Justice Laura Gerow, in Mr. Moore's wrongful dismissal action.

The defendants unsuccessfully applied for an order to have the court decline jurisdiction.  The court wrote:

[1] Patrick Moore has commenced an action alleging that NextEnergy Inc. breached the employment contract it had with him. On this application, NextEnergy seeks orders that Dr. Moore's action be dismissed or stayed, on the ground that the notice of civil claim does not allege facts, that if true, would establish that the Court has jurisdiction over NextEnergy. Alternatively, NextEnergy seeks an order that Dr. Moore's action be dismissed or stayed, on the basis that the Court does not have jurisdiction over NextEnergy in respect of the subject matter of the action. In the further alternative, the Court should decline jurisdiction over the parties in respect of the subject matter of this action.

However, the court found that Mr. Moore's employment, and the legal action for wrongful dismissal damages following the employer's termination of his employment contrary to its obligations in the employment agreement was properly governed by BC law.

The court's conclusion is at:

[73] I find that this Court has territorial competence over this matter, and NextEnergy has not established that Ontario is a more appropriate forum. As a result I decline to exercise my discretion to dismiss or stay this action. NextEnergy's application is dismissed. Dr. Moore is entitled to his costs of this application.

Mr. Moore was represented by TevlinGleadle's Blair Curtis.

Full Reasons for Judgement are available here.

TevlinGleadle represents the BC Anesthesiologists Society ("BCAS") in its efforts to improve working conditions for BC anaesthesiologists.

The BCAS is taking steps to cause the BC government to address a critical shortage of qualified physicians in this critical practice area.  This shortage has had created a shortage of anaesthesiologists in BC, with overworked doctors and excessive waiting lists.

BC anaesthesiologists have applied for standing before Frank Iacobucci, an eminent jurist, now retired from the Supreme Court of Canada, who has been appointed as a conciliator to achieve a resolution to various issues between the BC government and BC physicians.

The BC government is applying for an injunction to forbid the BC anaesthesiologists from withdrawing services, on the basis that all available dispute resolutions have not been exhausted.  The BC Supreme Court on Friday, March 30th, 2012 postponed the BC government's application for 3 weeks, and ordered in the interim that anaesthesiologists not reduce service levels, in spite of the fact that their agreement expired.

Dr. Jeff Rains, BCSA President said "The issue here is we need a process to deal with the problems that we have with the recruitment and retention of anesthesiologists in this province"

See article by Neal Hall of the Vancouver Sun

The Honourable Madam Justice Ballance of the BC Supreme Court today handed down Reasons for Judgement on the issue of whether certain Freightliner employees who were not initially on the distribution list, should share in the distribution, on the basis that they did not receive proper notice.

The Reasons for Judgment can be viewed here.

This judicial decision resolves almost all issues required to enable the actuary to complete the final distribution.

The court has indicated that if the parties cannot agree on the matter of costs of the process required to settle the issue of the final distribution list, they are to bring the matter before the court by way of written submissions with a final date of June 15, 2012.  It is not yet known if that process will be needed, or whether the parties will be able to resolve the costs issue by agreement.

Class counsel will be working with the actuary to endeavour to resolve the issue of the entitlement of the one particular claimant that the judge did not finally resolve, and if necessay, the court's guidance on that issue will be sought.

Martin Sheard of TevlinGleadle was plaintiff's counsel in a successful wrongful dismissal claim in BC Supreme Court, where the employer initially dismissed without any allegation of just cause for dismissal. When Mr. Dobbs sought a severance package, the employer refused to pay anything, only then alleging conduct which amounted to "just cause".  

See Dobbs v. The Cambie Malone's Corporation, 2011 BCSC 1830

At the trial, the employer failed to provide any arguable basis for cause.  The trial judge commented that the employer had "all but abandoned" the allegation of just cause.

Mr. Dobbs had sought punitive damages on the basis of an improper allegation of cause, but the court did not find the sort of conduct needed to justify such an award. The court wrote:

[67] I do not agree with counsel for the plaintiff that the termination was high handed or outrageous. The circumstances of this case do not bear any of the hallmarks of the cases cited by Mr. Dobbs' counsel. Accordingly, the claim for punitive or aggravated damages is dismissed.

NOTICE PERIOD:

The honourable Madam Justice Wedge awarded damages based on a 12 month notice period.  In doing so, the court undertook an analysis of the effect of various "factors" which the courts typically review in determining the appropriate notice period for dismissed employees. In particular:

Age:  Mr. Dobbs was 51 years old at the time of dismissal.  This was found to be a factor tending toward a longer notice period.  Judge Wedge specifically referred to and approved of language in earlier reported decisions where age was a factor, by age 50.  The court wrote:

[40] The company in this case does not dispute that Mr. Dobbs' age, 51, is a relevant consideration. The case law amply supports that concession. In the case of Orlando v. Vancouver Coastal Health Authority, 2005 BCSC 926, Mr. Justice Taylor said at para. 49:

"It is no secret that employees terminated at such an age have a much greater difficulty finding employment than do those of a younger age."

[41] Taylor J. cited Harding J. in Birch v. Grinnell Fire Protection, [1998] B.C.J. No. 1602 (S.C.) at para. 21 where he said:

"[M]any potential employers these days are reluctant to hire new employees over the age of 50."

[57] In my view, that observation has resonance in the unique circumstances of this case. Like the plaintiff in the Orlando case, Mr. Dobbs is over 50 years of age and held a senior and specialized position in the company's structure. As Mr. Justice Taylor stated at para. 77: 

"As one reaches the pinnacle of a career, the ability or opportunity to replicate it diminishes in direct proportion to the job's uniqueness and with respect to the person's age."

Length of Service (Hiatus, or Break in Service):  Mr. Dobbs had worked for Malone's for over 11 years.  However, only the 30 months prior to the termination had been continuous. Before then he had worked for another employer for about one year.  He had left voluntarily after about 9 years service, from 1999 to 2007, only to return in 2008 when approached by the defendant.  The court found that the plaintiff should be treated as an employee with 11 years service, because, when he returned, he was not treated as a new employee but an employee with prior creditable service. Judge Wedge wrote:

[45] I will now address the issue of length of service. As I have already noted, Mr. Dobbs submits that all 11 years of his service with Cambie Malone's should be taken into account with respect to the appropriate notice period, while the company says only the last 30 months are relevant.

[46] The question is, how is the 11-month hiatus to be treated? The law concerning this issue was succinctly stated by Mr. Justice Lysyk in Beach v. Ikon Office Solutions, Inc., [1999] B.C.J. No. 1574 (S.C.), where the Court said at para. 13:

Where there is no express term in the re-employment contract dealing with the issue, the question is whether the employer has effectively recognized continuity of service.

[47] In the earlier decision of Chorny v. Freightliner of Canada Ltd. (1995), 3 B.C.L.R. (3d) 116 (S.C.), the Court similarly concluded that absent any express employment contract term, the question is whether the employer has effectively treated the employee as a long-term employee.

[48] I have reviewed several other decisions on the issue, including Potter v. Halliburton Group Canada Inc., 2004 BCSC 1376; Swamy v. O'Bryan Hotels Ltd., [1997] B.C.J. No. 2114 (S.C.); and Graham v. Galaxie Signs Ltd., 2010 BCSC 609. All of these decisions stand for the proposition that in the absence of an express contract term dealing with a hiatus in an employee's term of employment, the question is whether the employer and employee conducted themselves at the point of rehire in a manner consistent with the employee being given credit for the entire employment period. It is a question of fact to be determined on all of the evidence.

[49] I will say, parenthetically, that I do not read Graham v. Galaxie Signs Ltd. as departing from any earlier case law. In Graham, Groves J. simply treated the issue as a finding of fact, as did the Courts in other decisions I have cited. I do not read the Graham decision as authority for the proposition that unless there is an express agreement recognizing prior service, it will not be recognized.

[50] I turn then to the facts of this case. Mr. Yehia was clearly quite anxious to have Mr. Dobbs return to a management position in Cambie Malone's. He wanted to place him in a position that was a comfortable fit. When Mr. Dobbs asked about the 6% vacation entitlement with which he had left the company, Mr. Yehia agreed that it would remain at 6%. Mr. Yehia knew that if Mr. Dobbs was treated as a new hire, he would be entitled to only 4%. He understood the implications of Mr. Dobbs receiving three weeks rather than two weeks' vacation.

[51] When Mr. Dobbs said he wanted a 9:00 to 5:00 job that did not entail pulling shifts, Mr. Yehia readily agreed. He was anxious to have the company benefit from Mr. Dobbs' prior experience with the company. In e-mail exchanges with Mr. Dobbs, he referred to the company as always keeping the door open for Mr. Dobbs. Mr. Yehia knew Mr. Dobbs' strengths and talents from the previous eight years of employment and wanted to build on those for the new Human Resources and Operations Manager position.

[52] I am satisfied that in the discussions leading to Mr. Dobbs' return to Cambie Malone's, the parties assumed that Mr. Dobbs would be treated as an employee with many years of service with the company and not as a newly hired employee. That being the case, I conclude that Mr. Dobbs had 11 years of service with the company when he was terminated and should be regarded as such for purposes of the appropriate notice period.

Notice Period Awarded:  The court found that given all of the relevant factors, a 12 month notice period was appropriate. She said that, if she had only found that the 30 month period of final service was to be taken into account, a 9 month notice period would have been justified.

Summary and Conclusion:

This case will be useful for those persons wishing to understand the implications of a break in service for determination of reasonable notice periods, as well as an case justifying a 9 month notice period after 30 months service (though obiter) for a 51 year old manager.

Facts:

Mr. Giza worked for 5 years as a school bus driver until, after a rough patch with his employer (not alleged to be just cause) the employer served 5 weeks' working notice in purported compliance with the BC Employment Standards Act.  Mr. Giza decided to cease work on the same day, instead of working through the 5 week notice period, and commenced an action for wrongful dismissal damages.

At trial, the action was dismissed. The trial judge held that although 5 weeks notice was insufficient, not complying with the employer's obligation to give common law reasonable notice, the plaintiff was required to work though the notice period, and only after could he sue for damages.

The appeal court referred to the trial reasons where it was written:

[11] At para. 36 of her reasons, the judge quoted from this Court's decision in Zaraweh v. Hermon, Bunbury & Oke, 2001 BCCA 524 (CanLII), 2001 BCCA 524, B.C.L.R. (3d) 223 at para. 14:

The common law provides that, in cases of indefinite hiring without written contract establishing terms of dismissal, an employer may terminate the employment without cause by giving reasonable notice to an employee that the employment will terminate. During this time the employee is required to work and to conduct himself or herself in a fashion compatible with the employment relationship.

[12] At para. 39, the judge had this to say:

In this case, the 5 weeks of notice was not adequate. [The respondent] breached the employment contract by giving Mr. Giza too little notice. The legal effect of giving inadequate notice depends on all the facts.

Appeal: 

The BC Court of Appeal allowed the appeal.  

The appeal court accepted the trial judge's analysis of the obligation of an employee who receives insufficient notice. The employee in those circumstances cannot normally treat the inadequate notice as a repudiation of the employment contract, but is rather required to work through the notice period before commencing a wrongful dismissal action.

[27] This Court in Zaraweh v. Hermon, Bunbury & Oke made it clear that an employee terminated with notice is required to work during the notice period (para. 14.). Saunders J.A. referred to this Court's decision in Suleman v. British Columbia Research Council 1990 CanLII 746 (BC CA), (1990), 52 B.C.L.R. (2d) 138, 24 A.C.W.S. (3d) 508, in which Mr. Justice Hutcheon observed at p. 141 that, subject to conduct by the employer amounting to constructive dismissal,

... the contract of employment is not terminated until the end of the notice period and during that period the employer has the right to the services of the employee. It follows that the employee must remain ready and willing to carry out the contract of service.

Therefore, in leaving his job immediately after notice was given, the employee had acted improperly. 

Importantly, though, the Appeal court disagreed with the Trial court as to the effect of the employee's conduct.

At trial, the court had seen the refusal of Mr. Giza to work through the notice period as a repudiation of the agreement.  He was found, in effect, to have voluntarily left his employment - ie. to have quit.

The court of appeal determined that by leaving the job early, the employee had lost his right to complain of any loss of income he could have enjoyed during the notice period, but not his general right to damages.  The Appeal Court wrote:

[26] I do not agree with the judge's conclusion at para. 53 that by failing to work during the notice period, the appellant lost his entitlement to reasonable notice or damages in lieu thereof.

and

[39] In my view, it is clear that the respondent did not constructively dismiss the appellant and that the appellant repudiated the employment contract by failing to work during the notice period. In classic terms, he evidenced an intention not to be bound by the contract, but that did not deprive him of his right to damages for the respondent's breach of contract in giving him inadequate notice.

[40] In Zaraweh, Saunders J.A. stated at paras. 35 and 36 that

... the breach of contract by provision of inadequate notice gave Ms. Zaraweh a cause of action for damages although it did not constitute a repudiation ... . The entitlement to sue did not die with Ms. Zaraweh's repudiation of the employment relationship.

...

... Ms. Zaraweh was entitled to ... damages based on the difference between the notice provided ... and the period of reasonable notice ... .

[41] In Hadcock v. Georgia Pacific Securities Corp., 2006 BCCA 536 (CanLII), 2006 BCCA 536, 64 B.C.L.R. (4th) 308 at para. 48 this Court, relying on the Supreme Court of Canada's decision in Guarantee Co. of North America v. Garden Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, explained that although repudiation ends the ongoing rights and obligations of parties under a contract, it does not affect rights and obligations that have accrued. In the present case, the appellant's right to damages in lieu of reasonable notice had accrued when he was given inadequate notice. His repudiation did not take away that right and it did not take away the right of the respondent to the appellant's services during the period of notice given.

[42] In summary:

1. the respondent breached its contract of employment by failing to give adequate notice of termination;

2. the respondent's conduct did not amount to a constructive dismissal, that is, a repudiation by the respondent of the employment relationship; it continued during the notice period;

3. the respondent's breach gave the appellant a cause of action for damages in lieu of reasonable notice;

4. the period of reasonable notice for which damages could be recoverable is the period of reasonable notice to which the appellant was entitled less the period of notice actually given during which the appellant could have and should have worked and been paid;

5. the appellant's failure to work during the notice period was a repudiation that brought to an end the employment relationship and the ongoing rights and obligations of the parties under it;

6. that repudiation did not take away the appellant's cause of action for damages in lieu of notice or the respondent's right to have the appellant's services during the notice period that was given because those rights had accrued before the repudiation.

Reasonable Notice at Common Law:

The court itself assessed damages for failure to give reasonable notice at common law, citing Bardal:

[45] The "seminal enunciation" of what length of notice is reasonable at common law derives from Bardal v. The Globe & Mail Ltd. (1960), 24 D.K.R. (2d) 140 (Ont. H.C.J.) at 145, in which McRuer C.J. held that

[t]here can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.

This test was adopted by, inter alia, McEachern C.J.S.C. in Ansari v. B.C. Hydro 1986 CanLII 1023 (BC SC), (1986), 2 B.C.L.R. (2d) 33.

[46] An examination of cases reasonably comparable to the present case suggests that the appropriate range of notice is somewhere between three and 11 months. There obviously is considerable variability.

[47] At the time the contract of employment was terminated, the appellant was 61 years of age. He had been employed by the respondent for approximately five years. He had worked previously as a professional forester, but the availability of forestry work had diminished by the time he left this industry and began working as a school bus driver. The appellant has had little success in obtaining alternative employment.

[48] The appellant seeks nine months' notice. In my view, reasonable notice in this case would have been six months. For the purpose of calculating damages, the period of actual notice during which the appellant could have worked and been paid must be deducted. I would calculate damages based on a notice period of five months.

Summary:

Mr. Giza had acted hastily when he left, having been given inadequate notice.  By leaving, he lost the legal right to recover damages for the short notice period given by the employer, but he could still recover damages for a reasonable notice period, if in excess of the actual notice period given by Sechelt.  The court set a six month notice period, with no comment as to the "character of employment" factor diminishing the amount of notice required, and the ultimate notice period was in excess of one month per year of service.

TevlinGleadle argued the Certification Application in the BCSC in November, 2012. The Judge reserved his judgement for consideration, due to the large amount of material presented to him on the application. We continue to await word from the Supreme Court on when the judgment will be handed down.

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.

Dan Gleadle has written an article for the Canadian Human Rights Reporter issue published on Januayr 16, 2012, entitled "So What Exactly Constitutes Just Cause?"

The Honourable Madam Justice Ballance has notified counsel that her decision on the issue of the claims by certain persons who failed to opt in to the class action will not be handed down for about six weeks. By our calculation, that should be by approximately mid-February.

Our judges are extremely busy on many cases, and delays of this nature are not unusual.

Once the decision is rendered, we hope to be in a position to work with the actuary, Mr. Demner, to conclude the final distribution.