Litigation Brief

Does an employee have to continue working, if they have been given notice that they will be terminated?

The B.C. Court of Appeal has overturned a trial decision that had held an employee was not entitled to damages for wrongful dismissal, where the employee had refused to work during a period of "working notice" of termination offered to him by his employer.

In Giza v. Sechelt School Bus Service, 2012 BCCA 18, the plaintiff/ appellant was a 61 year-old bus driver who had been employed by the respondent for five years.  In the fall of 2009, the appellant and his boss had gotten into some disagreements over the bus route and timing and the respondent decided to terminate the appellant’s employment.

The respondent provided the appellant with five weeks working notice – the amount required by the Employment Standards Act.  Upon receiving the letter, the appellant left work permanently.

The trial judge held that five weeks notice was not reasonable notice of termination of the appellant’s employment; however, the trial judge found that as the appellant refused to work during the working notice period offered, he had repudiated his employment contract – i.e., quit – and was not entitled to damages for wrongful dismissal.

The Court of Appeal’s unanimous judgment held that the appellant’s failure to work during the notice period offered did not cause him to lose his entitlement to reasonable notice of termination of his employment.  The Court concluded, at paragraph 41, that:

In Hadcock v. Georgia Pacific Securities Corp., 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] 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.

The Court of Appeal went on to hold that six months notice was reasonable in the circumstances, and then reduced this damages award to five months by reason of the appellant’s failure to work during the notice period offered by the respondent. 

To read the full decision, click here.

Court awards damages for wrongful dismissal, where employee forced to resign

Today, the Supreme Court of British Columbia awarded damages for wrongful dismissal in the form of 18 months salary.  At the time of trial the plaintiff was 63 years of age and prior to his alleged resignation, he had been employed by the defendant for approximately 15 years.

In Chan v. Dencan Restaurants Inc., the plaintiff Mr. Chan was found by the Court to have been forced to resign from his position as general manager of a Denny’s restaurant operated by the defendant.

Winemaker awarded 8 months' pay for wrongful dismissal

The B.C. Supreme Court recently awarded 8 months’ pay as damages for the wrongful dismissal of a 38 year-old winemaker, who had been employed by St. Hubertus Estate Winery Ltd. for slightly less than two years before being terminated without advance notice.

Employers must re-examine employees' disability, when employees ask to return to work

The law requiring the accommodation of disabled employees is frequently a source of confusion and frustration for employers.

In Boehringer Ingelheim (Canada) Ltd./Ltée. v. Kerr, 2011 BCCA 266, the B.C. Court of Appeal recently grappled with the proper test for finding prima facie discrimination, in circumstances where the employer did not return an employee who had been on disability leave back to work as the employee requested.

Boehringer Ingelheim (Canada) Ltd./Ltée. (“BICL”) appealed from the dismissal of its application for judicial review of a June 9, 2009, decision of the British Columbia Human Rights Tribunal (the “Tribunal”).  The Tribunal found that BICL’s refusal to return the respondent to its workforce, based on its stereotypical view that she could not work because of her vision-related disability, was prima facie discrimination, triggering the duty to accommodate.  The Court of Appeal dismissed the appeal.

A party seeking an injunction to enforce a restrictive covenant faces a higher burden than if seeking other forms of injunctive relief

The Supreme Court of B.C. has dissolved an interim injunction, originally granted to protect the business interests of a plaintiff seeking to enforce a non-competition and non-solicitation agreement against a former employee who has joined a competitor.

Phoenix Restorations Ltd., an insurance restoration company, commenced proceedings against its former employee Paul Brownlee and his new employer, Belfor Property Services on November 1, 2010.  That day Phoenix obtained an interim injunction, prohibiting Brownlee from directly or indirectly soliciting business from two clients of Phoenix, pending the hearing of an application for an interlocutory injunction.

The injunction hearing proceeded before Mr. Justice Goepel on November 12, 2010, and he continued the interim injunction until releasing his reasons, indexed as Phoenix Restorations Ltd. v. Brownlee, 2010 BCSC 1749, which set the injunction aside.

BC's Supreme Court denies injunction enjoining former employees from competing for business

The Supreme Court of British Columbia has denied Inprotect Systems Inc. ("Inprotect"), a traffic control product distributor, a one-year injunction restraining its former director and general manager from competing with it for one year (or until trial).

Madam Justice Fenlon found that Inprotect had a strong prima facie case that Kenneth Davies was a fiduciary of Inprotect and in breach of his duties owed to Inprotect upon leaving its employ.  However, in assessing the balance of convenience between the parties, the Court found that Inprotect's damages could be quantified, if ultimately successful at trial, and that an injunction would essentially put Mr. Davies and his new company, Roadway Traffic Products Ltd., out of business, as it would not be able to meet its obligations without the anticipated revenue.

Reasons released in case involving summarily-dismissed apprentice

The Court of Appeal has issued reasons in a case concerning the assessment of damages for wrongful dismissal in a contract which expressly limits an employer’s obligation to employ to the availability of work.

The parties in Marchen v. Dams Ford Lincoln Sales Ltd., 2010 BCCA 29 had entered into an agreement under the Industry Training and Apprenticeship Act, S.B.C. 1997, c. 50 (the “ITA Act”).  The lower court found the plaintiff was summarily dismissed on incorrect suspicion of criminal activity and that the apprenticeship was for a fixed term under the ITA Act, and accordingly awarded the plaintiff damages for termination, as well as consequential, special, and punitive damages.

On review, the Court of Appeal held that s. 15(6) of the ITA Act allows for termination of an apprenticeship with reasonable notice if there is insufficient work available.  The Court held that since the dates in the contract were approximate only, they could not define a fixed term as a matter of law.  The Court explained that since termination of a non-fixed term employment contract is not unlawful, the only actionable wrong was failure to give proper notice, which is an implied term of employment contracts.

Accordingly, the Court set aside the damages awarded for termination, and remitted the matter to the Supreme Court to determine the amount due the plaintiff in lieu of notice.  The Court also set aside the punitive damages because they were imposed pursuant to the defendant’s conduct in litigation rather than for egregious conduct at the time of the breach.

To read the full decision of the Court of Appeal, click here.