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Tevlin Gleadle Curtis Employment Law Strategies
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Huffington Post article on Blair's win in Beverley Maxwell case.

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TevlinGleadle's Blair Curtis Succeeds in Action against BC Government for Wrongful Dismissal Damages
Blair Curtis of Tevlin Gleadle successfully represented Ms. Beverley Maxwell in a summary trial hearing before Mr. Justice Skolrood of the British Columbia Supreme Court to decide her wrongful dismissal claim against the B.C. Government.

The full text of the judgment is available here.

Ms. Maxwell, who is 60 years old, had been a long term executive at the former B.C. College of Teachers. She had a written contract with the College that provided for two years of protection by way of severance pay in the event of her dismissal without cause.

In late 2011 and early 2012, the B.C. Government legislated the College out of existence. The Government absorbed the functions of the former College. Ms. Maxwell had serious concerns about how this transpired. The Government offered Ms. Maxwell a job to commence following the dissolution, but Ms. Maxwell declined that job, stating concerns about salary and benefits, among other important things.

The Government (which inherited the liabilities of the College) refused to pay Ms. Maxwell's contractual severance. Their refusal rested on the technical argument that Ms. Maxwell's contract referred to the "Registrar" in terms of dismissal, but in this case the dismissal occurred by act of the Legislature rather than the Registrar. The Government also insisted that Ms. Maxwell should have taken the job it offered to her.

The Court found in Ms. Maxwell's favor, awarding her over $312,000 in damages, plus costs. The Court determined that the true intention of the contract was to provide Ms. Maxwell with severance in the event of a dismissal without cause. The use of "Registrar" in the contract did not limit the circumstances where she would be entitled to the severance.

The Court also followed the emerging line of cases in Canada, holding that a severance entitlement in a written contract is not subject to a duty to mitigate unless that duty is expressly stated. Accordingly, the Court did not need to consider whether Ms. Maxwell ought to have taken the Government job. She was absolutely entitled to the severance payment.

This case has already garnered significant media attention, including articles in "The Vancouver Sun" and the Huffington Post (please see the links):

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The cheques for the second distribution in the Western Star Pension class action have now been mailed.

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Western Star Pension Class Action

The second, and likely final distribution of settlement funds is currently awaiting a determination by the court as to the claims of certain persons who have claimed a share, though they were not BC residents at the relevant time, nor did they opt in when they were required to do so. These persons were, in the main, Freightliner employees at the time of the certification of the class action, but complained to the BC court that they were not properly notified of the need to file an opt in notice.

This issue went before the BC Supreme Court this summer, and Judge Ballance "reserved judgment", indicating that a decision was to be expected in the Fall of 2011.

The most recent news from the court is that a decision is to be expected soon, likely in February.

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18 month wrongful dismissal damage award for 65 year old Container Lift Operator

In Systad v. Raymont Logistics Inc, 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 at the link below.

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.
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