COURT OF APPEAL FOR BRITISH COLUMBIA Lewis v. Terrace Tourism Society, 2010 BCCA 346 Date: 20100708 Docket: CA036022 Between: Jennifer Lewis Appellant (Plaintiff) And Terrace Tourism Society Respondent (Defendant)
Before:
The Honourable Mr. Justice Low The Honourable Madam Justice Levine The Honourable Mr. Justice Frankel
On appeal from: Supreme Court of British Columbia, March 26, 2008 (Lewis v. Terrace Tourism Society, 2008 BCSC 361, Terrace Registry No. 15766) Counsel for the Appellant:
S.K. Kent
Counsel for the Respondent:
R. Macquisten
Place and Date of Hearing:
Vancouver, British Columbia March 24, 2010
Place and Date of Judgment:
Vancouver, British Columbia July 8, 2010
Written Reasons by: The Honourable Madam Justice Levine (Page 13, para. 40) Concurred in by: The Honourable Mr. Justice Low Dissenting Reasons by: The Honourable Mr. Justice Frankel (Page 1, para. 1)
2010 BCCA 346 (CanLII)
Citation:
Lewis v. Terrace Tourism Society
Page 2
Reasons for Judgment of the Honourable Mr. Justice Frankel:
[1]
While Jennifer Lewis was on maternity leave, her employer, the Terrace
Tourism Society, decided to wind up its operations. As part of that process, it had to determine what severance to pay her. Before that decision was made, Ms. Lewis brought a small claims action in the Provincial Court of British Columbia seeking damages for constructive dismissal. As a result of that action, the Society formally terminated her employment. Ms. Lewis then sued the Society in the Supreme Court of British Columbia seeking damages for wrongful dismissal or, in the alternative, constructive dismissal. That action was dismissed by Mr. Justice Joyce on a summary trial application brought by the Society. In appealing that order, Ms. Lewis contends that the summary trial judge erred in finding that the elimination of her position did not amount to constructive dismissal and that the small claims action provided cause for dismissal. In the alternative, Ms. Lewis says that the summary trial application should not have proceeded because she was acting on her own behalf at that time. [2]
The summary trial judge also dismissed Ms. Lewis’s defamation claim against
the Society. As this appeal is limited to the employment-law claims, I will refer to the defamation claim only in passing. [3]
For the reasons that follow, I would dismiss this appeal.
Factual Background [4]
Ms. Lewis was hired as the Society’s executive director in May 2004. At that
time, she signed an offer-of-employment letter that set out the start date of the position, the evaluation-period protocol, the hours of work, and the salary. The letter does not address maternity leave, dismissal, the length of notice for dismissal, or severance pay.
2010 BCCA 346 (CanLII)
Introduction
Lewis v. Terrace Tourism Society [5]
Page 3
On December 31, 2006, Ms. Lewis went on unpaid maternity leave that was
scheduled to run until January 2008. In early 2007, the Society found itself in dire financial straits due to the fact
that the City of Terrace had discontinued funding its operations. On January 15, 2007, the Society’s board of directors resigned en masse. In a letter to the Society’s members, the board set out how the Society had been, and would be, affected by the loss of funding. That list included: 1.
All operating costs have been reduced to a bare minimum.
2.
We have kept our bookkeeper on payroll to ensure all paperwork is dealt with in a timely manner.
...
[7]
4.
Our Executive Director is on Maternity leave, the recently hired interim Executive Director has been laid off.
5.
Our lease has not been renewed by the City; therefore we have to move by June 14th, 2007.
A special committee was struck to determine the Society’s future. That
committee met on January 24, 2007, and made a number of decisions, one of which was to give two committee members signing authority with respect to the Society’s bank accounts in place of Ms. Lewis. The committee also discussed the dissolution process required by the Society’s constitution. [8]
On February 19, 2007, the members of the Society met and voted to dissolve
the Society. Ms. Lewis attended part of that meeting. A Dissolution Committee was formed at that time. The meeting notice included the following, under the heading “Discussion”: If this motion is carried the following will occur o
A committee will need to be elected to proceed with dissolution.
o
All assets will be given to the Terrace Chamber of Commerce. (as per Terrace Tourism Society by-laws and constitution)
o
The office will close, the web site will close or be given to the Chamber, and all operations of the society will cease.
o
The Executive Director position will be terminated.
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[6]
Lewis v. Terrace Tourism Society o
An accountant may need to be hired to ensure all financial responsibilities and final reports are completed.
o
Others may need to be hired to dispose of or re-locate assets.
Page 4
[9]
One of the issues with which the Dissolution Committee had to deal was the
termination of Ms. Lewis’s employment and payment to her of severance pay. As there was a question as to the amount of Ms. Lewis’s annual salary and concerns with respect to certain expenses she had claimed, some investigation was required before a decision could be taken as to what would be an appropriate severance payment. One of the members of the Dissolution Committee conducted that investigation. Ms. Lewis was aware of the investigation. [10]
The Dissolution Committee completed its investigation in early March 2007. It
obtained the salary information it needed and determined that Ms. Lewis’s expenses had been authorized. In an email exchange with a member of the committee on March 7, 2007, Ms. Lewis asked what her severance would be and when it would be paid. The committee member replied: Our [sic] first meeting we touched on severance, but did not discuss it in depth. I don’t know what [the Society’s] obligations should be. We will discuss it and get back to you. Was there an agreement or understanding when you started that covered severance?
[11]
On March 19, 2007, before the Society had made a severance-pay offer,
Ms. Lewis commenced a small claims action seeking the following relief: a
Damages for breach of employment contract including Wallace damages
b
Aggravated and punitive damages
c
Special damages (lost benefits, mitigation expenses, etc.)
d
Court Ordered interest
e
Such further and other Orders as this Court deems just.
The reference to “Wallace damages” is to the damages that can be awarded in a wrongful dismissal case to address egregious conduct by an employer in dismissing an employee: Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701.
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[Emphasis added.]
Lewis v. Terrace Tourism Society Ms. Lewis’s notice of claim contained the following statement:
I have been provided with no working notice and have received no pay in lieu of notice. I believe the Terrace Tourism Society is attempting to dissolve itself and divest itself of its assets without providing me with the pay in lieu of notice I am contractually entitled to. Members of the Terrace Tourism Society have also made false and egregious accusations against me which have harmed my reputation thus making it more difficult to obtain new employment at the end of my maternity leave and which has caused me severe mental anguish.
[13]
The Society subsequently received correspondence from Ms. Lewis’s solicitor
suggesting that it was attempting to divest itself of assets in order to avoid its severance obligations. [14]
On April 27, 2007, the Society, through its solicitor, advised Ms. Lewis that
her employment was terminated for cause because of her small claims action. [15]
On July 19, 2007, Ms. Lewis commenced an action in the Supreme Court
seeking the following relief:
[16]
a)
Damages for wrongful dismissal, constructive dismissal, bad faith dismissal, aggravated and punitive damages;
b)
Damages for defamation;
c)
Special damages;
d)
Costs;
e)
Interest pursuant to the Court Order Interest Act; and
f)
Such further and other relief as this Honourable Court deems just.
In her statement of claim, Ms. Lewis alleged that she had been wrongfully
dismissed without working notice on or around February 19, 2007, or, in the alternative, at some point during late February or March of 2007. In the further alternative, she alleged that she was wrongfully dismissed on or around April 27, 2007. [17]
On September 28, 2007, a judge of the Supreme Court granted Ms. Lewis’s
application for an injunction to restrain the Society from further disposing of its assets pending the outcome the action: 2007 BCSC 1456, 61 C.C.E.L. (3d) 143.
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[12]
Page 5
Lewis v. Terrace Tourism Society [18]
Page 6
Ms. Lewis had retained counsel to commence the Supreme Court action and
to bring the injunction application. In November 2007, she filed a notice of intention
[19]
On January 31, 2008, the Society filed and served a notice of motion,
together with three supporting affidavits, seeking dismissal of Ms. Lewis’s claims pursuant to Rule 18A of the Rules of Court. That notice set the matter down to be heard on March 5, 2008. [20]
On March 4, 2008, Ms. Lewis filed and served three affidavits she had sworn
that day. Each was in response to one of the Society’s affidavits. [21]
The Rule 18A application proceeded on March 5, 2008; judgment was
reserved. On March 28, 2008, the summary trial judge released written reasons dismissing Ms. Lewis’s claims: 2008 BCSC 361, 65 C.C.E.L. (3d) 138. Summary Trial Judge’s Reasons [22]
Ms. Lewis’s constructive/wrongful dismissal claims raised two related issues: 1.
Did the Society constructively dismiss Ms. Lewis by the steps it took to wind-up its operations before she commenced her small claims action?
2.
If Ms. Lewis had not been constructively dismissed before commencing the small claims action, then did that action amount to a repudiation of the contract of employment such that the Society had cause to dismiss her?
[23]
The summary trial judge found that Ms. Lewis had not been constructively
dismissed but rather had, by suing the Society, given it cause to dismiss her. In this regard he stated, in part: [42] At the meeting of February 19, 2007, [the Society] decided to wind up the affairs of the society. It knew that it would have to terminate the employment contract with Ms. Lewis as part of the winding up process. The mere decision to wind up the affairs of the society and to terminate the contract in the future does not amount to wrongful dismissal. [The Society]
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to act in person.
Lewis v. Terrace Tourism Society
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[43] The Dissolution Committee intended to offer severance once it had satisfied itself of the situation concerning Ms. Lewis’ salary, which happened on March 7, 2007. Before [the Society] had an opportunity to present its offer of severance, Ms. Lewis took the pre-emptive strike and sued. In my view, however, she acted prematurely since [the Society] had not terminated the contractual relationship; rather [the Society] had simply determined that it would at some point in the near future terminate the contract and offer pay in lieu of notice. Unless the words or actions of [the Society] and its Dissolution Committee in some other way constructively dismissed Ms. Lewis prior to March 19, 2007, it is she who repudiated the contract. [44] Constructive dismissal occurs when an employer breaches a fundamental term of an employment contract, or gives notice of its intention to do so. Such a breach entitles the employee to treat the contract as terminated and gives the employee the right to claim damages. The test for whether there has been a fundamental breach of contract by the employer is whether a reasonable person in the same situation as the employee would have felt that essential terms of the contract were being substantially altered (see Evans v. Listel Canada Ltd. (c.o.b. O’Doul’s Restaurant and Bar), 2007 BCSC 299, 2007 C.L.L.C. 210-018 at para. 63). [45] [The Society] may have made it clear to Ms. Lewis that it would terminate the contract, but it had the right to do so as long as it provided pay in lieu of reasonable notice. Expressing the intention to exercise its rights under the contract is not a repudiation of it. [46] In this case, as late as March 7, 2007, Ms. Lewis apparently did not consider that [the Society] had wrongfully dismissed her since she was enquiring what amount of severance she would be paid as a result of the termination of the contract of employment.
Analysis Was Ms. Lewis Constructively Dismissed? [24]
Ms. Lewis submits the following evidence demonstrates that she was
constructively dismissed before commencing her small claims action: (a)
The interim executive director was dismissed;
(b)
Her signing authority with respect to the Society’s bank accounts was removed;
2010 BCCA 346 (CanLII)
was entitled to terminate the contract of employment provided it gave reasonable notice or provided severance pay in lieu of reasonable notice. Since Ms. Lewis was on maternity leave and not due to return until January 2008, [the Society] was unable to give notice. It knew that it had to offer reasonable severance pay in lieu of notice.
Lewis v. Terrace Tourism Society (c)
Page 8
The notice of the special meeting stated that her position would be terminated if the Society was dissolved; Three days after the dissolution vote, the Society was planning to formalize her dismissal;
(e)
Five days after the dissolution vote, the Society was considering what severance to pay her; and
(f)
Two weeks after the dissolution vote, the Society was disposing of its offices and furniture.
She says that the resolution to dissolve the Society amounts to an irrevocable and unilateral alteration of her employment agreement. [25]
For its part, the Society submits that the passage of the dissolution resolution
and the discussions that followed concerning Ms. Lewis’s termination do not meet the test for constructive dismissal. It says that the mere fact that an employer takes steps to discontinue its operations does not amount to constructive dismissal of its employees, particularly those who are on unpaid leave. [26]
Although not mentioned by either party, I begin by referring to the provisions
of the Employment Standards Act, R.S.B.C. 1996, c. 13, dealing with what is commonly referred to as maternity leave. Section 50(1) of the Act provides that a pregnant employee is entitled to take up to 17 consecutive weeks of unpaid leave. In addition, by reason of s. 51(1)(a), a birth mother is entitled to take an addition 35 consecutive weeks of unpaid parental leave. An employer’s duties with respect to an employee on leave are set out in s. 54 of the Act: (1) An employer must give an employee who requests leave under this Part the leave to which the employee is entitled. (2) An employer must not, because of an employee’s pregnancy or a leave allowed by this Part, (a)
terminate employment, or
(b)
change a condition of employment without the employee’s written consent.
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(d)
Lewis v. Terrace Tourism Society As soon as the leave ends, the employer must place the employee (a)
in the position the employee held before taking leave under this Part, or
(b)
in a comparable position.
(4) If the employer’s operations are suspended or discontinued when the leave ends, the employer must, subject to the seniority provisions in a collective agreement, comply with subsection (3) as soon as operations are resumed.
[27]
As can be seen, s. 54(3) requires that an employee be placed in either the
same position he or she was in before going on leave or a comparable position. However, sub-s. (4) contemplates that an employer’s operations may have ceased by the time the employee returns to work, i.e., there is no position to which the employee can return. [28]
In practice, an employee on leave does not perform any services for his or
her employer, and is not required to attend at the employer’s place of business. It is for this reason that the employer is not required to pay an employee on leave, although, by reasons of s. 56 of the Act, pension, medical, and other benefits to which the employee is entitled continue. In effect, the core obligations of an employment relationship—the provision of services in exchange for remuneration— are held in abeyance during the leave period. [29]
In this case, Ms. Lewis was on an unpaid leave and does not assert that she
was performing any services for the Society. In addition, she does not assert that she was required to attend at the Society’s office or at any other location. During the leave period, their employment relationship can best be described as a shell. When Ms. Lewis’s leave ended, she was entitled to recommence being the Society’s executive director or be given a comparable position, unless prior to that time she had been properly terminated. It is in this context that the question of her alleged dismissal must be considered. [30]
In Farber v. Royal Trust Co., [1997] 1 S.C.R. 846 at para. 33, Mr. Justice
Gonthier defined “constructive dismissal” as follows:
2010 BCCA 346 (CanLII)
(3)
Page 9
Lewis v. Terrace Tourism Society
Page 10
He also endorsed another definition of that term that is now commonly cited (at para. 34): A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee. Such action amounts to a repudiation of the contract of employment by the employer whether or not he intended to continue the employment relationship. Therefore, the employee can treat the contract as wrongfully terminated and resign which, in turn, gives rise to an obligation on the employer’s part to provide damages in lieu of reasonable notice.
[31]
Ms. Lewis says she was constructively dismissed by reason of the fact that
the Society had dismissed her temporary replacement, removed her signing authority, and closed her workplace. Ignoring the fact Ms. Lewis was on leave, those actions could amount to constructive dismissal. However, they cannot be viewed in isolation; the totality of the circumstances must be considered. Those circumstances include the fact that Ms. Lewis was on unpaid leave and that, to her knowledge, the Society was engaged in determining its severance obligations to her. [32]
As mentioned above, at the time of these events, the employment relationship
between Ms. Lewis and the Society was essentially a shell. The nature of the changes being made to the operations of the Society had no immediate effect on her employment status. What the Society did was remove a signing authority Ms. Lewis was not exercising, and close a workplace to which she was not going. [33]
Because it was terminating Ms. Lewis’s employment, the Society was
required to provide her with either reasonable working notice, or with severance in lieu of notice. Since Ms. Lewis was not working, it was not possible for the Society to give her working notice. Accordingly, the Society intended to meet its obligations by paying Ms. Lewis severance and, to her knowledge, was taking steps to
2010 BCCA 346 (CanLII)
[I]t has been established in a number of Canadian common law decisions that where an employer unilaterally makes a fundamental or substantial change to an employee’s contract of employment—a change that violates the contract’s terms—the employer is committing a fundamental breach of the contract that results in its termination and entitles the employee to consider himself or herself constructively dismissed.
Lewis v. Terrace Tourism Society
Page 11
determine what amount would be appropriate. I see no reason why, in these circumstances, an employer should be expected to keep an empty chair in an empty office until it is in a position to provide an employee on leave with notice of
breach its obligations to Ms. Lewis prior to her commencing the small claims action. [34]
For essentially the reasons just expressed, I would reject Ms. Lewis’s
alternative submission that the actions of the Society amounted to an anticipatory breach of her contract of employment. In this regard, she relies on the following statement by Mr. Justice Lambert in Farquhar v. Butler Brothers Supplies Ltd. (1988), 23 B.C.L.R. (2d) 89 at 92 (C.A.): A constructive dismissal occurs when the employer commits either a present breach or an anticipatory breach of a fundamental term of a contract of employment, thereby giving the employee a right, but not an obligation, to treat the employment contract as being at an end. [Emphasis added.]
[35]
In my view, the Society’s action cannot be said to have evinced an intention
to renounce its obligations as Ms. Lewis’s employer. To the contrary, given the circumstances, the Society was taking reasonable steps to meet those obligations. To conclude otherwise would be tantamount to saying that an employee on leave will have been constructively dismissed whenever an employer begins a process of downsizing or winding up that will result in the elimination of that person’s job. Did the Society have Cause for Dismissal? [36]
Ms. Lewis submits that the summary trial judge erred in finding that she had
repudiated her contract of employment by initiating her small claims action. In support of her argument, she refers to authorities which hold that not every action commenced by an employee against an employer will amount to repudiation of a contract of employment. That proposition is non-contentious: Zaraweh v. Hermon, Bunbury & Oke, 2001 BCCA 524, 94 B.C.L.R. (3d) 223 at paras. 21, 22. However, commencing an action will constitute repudiation by the employee when doing so is incompatible with the employee’s continued employment. Such is the case when, as
2010 BCCA 346 (CanLII)
termination and severance pay. Accordingly, I would hold that the Society did not
Lewis v. Terrace Tourism Society
Page 12
here, an employee alleges that the employer has already wrongfully terminated the contract of employment: Suleman v. B.C. Research Council (1990), 52 B.C.L.R. (2d) 138 at 144 (C.A.); Podas v. Pacific Press Ltd. (1991), 61 B.C.L.R. (2d) 196 at
Should the Hearing have been Adjourned? [37]
Ms. Lewis contends that she was unduly prejudiced by the failure of the
summary trial judge to adjourn the March 5, 2008 hearing. There is no merit in that argument. Ms. Lewis never requested an adjournment. Indeed, the possibility of an adjournment was only discussed when the judge inquired as to whether the Society was prepared to proceed that day given the late delivery of Ms. Lewis’s affidavits. Counsel for the Society indicated that his client did not want the matter adjourned. [38]
Ms. Lewis also says it is evident from the transcript of the hearing that she did
not understand the nature of the proceedings. I do not agree. Although Ms. Lewis may not be as fully conversant with court procedures as are members of the bar, she was given proper notice of the application and filed affidavits in response to those filed by the Society. She was also given an opportunity to make her submissions. When, as occurred here, a litigant properly brings a matter before a court for determination, the fact that the other litigant is self-represented is not, in and of itself, a basis for not proceeding. That counsel may have been able to present Ms. Lewis’s position more cogently does not mean that that the decision of the summary trial judge is, as Ms. Lewis now suggests, “manifestly improper and unfair”. Conclusion [39]
I would dismiss this appeal. “The Honourable Mr. Justice Frankel”
Reasons for Judgment of the Honourable Madam Justice Levine:
2010 BCCA 346 (CanLII)
paras. 9-12 (C.A.).
Lewis v. Terrace Tourism Society [40]
Page 13
I have had the privilege of reading in draft form the reasons for judgment of
my colleague, Mr. Justice Frankel. I respectfully find myself in disagreement with his
[41]
The appellant’s legal right under her contract of employment to reasonable
notice on termination of her position was not altered when she commenced her maternity leave. The appellant’s job was clearly at an end when the Society resolved to cease operations and terminate the position of Executive Director. The Society did not provide any notice to the appellant of her termination, and it never offered reasonable severance in lieu of reasonable notice. In those circumstances, the appellant did not repudiate her employment contract by bringing an action to have the court declare her legal rights – her employment contract had been repudiated by the Society. Dismissal [42]
In my opinion, the fact that the appellant was on maternity leave when these
events occurred has served to obscure the appropriate analysis of their legal effect – that the appellant’s employment was at an end, at the latest, when the members of the Society resolved to cease operations and terminate her position. [43]
The trial judge stated (at para. 42): “The mere decision to wind up the affairs
of the society and to terminate the contract in the future does not amount to wrongful dismissal.” This legal conclusion reflects the belief of David Pernarowski, a member of the Dissolution Committee of the Society, who deposed that he “felt” the Society “had some time to sort out these issues [determining an appropriate severance payment] since Ms. Lewis was away on maternity leave and TTS had not yet severed its employment relationship with her because of this leave of absence.” [44]
There is no dispute that if the appellant was not on leave when these events
occurred the steps taken by the Society would amount to her dismissal. The trial judge seems to have concluded, however, that because she was on leave, some remnant of her employment relationship survived the Society’s effective cessation of
2010 BCCA 346 (CanLII)
conclusions on both issues raised on this appeal.
Lewis v. Terrace Tourism Society
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operations. Her employment could not survive, however, by virtue of the Society’s delay, apparently because she was on leave, in informing her that her position was
[45]
I know of no authority that suggests that the legal rights of a terminated
employee on leave are suspended or varied. To the contrary, for example, the Employment Standards Act, R.S.B.C. 1996, c. 113, s. 67(1)(a) expressly protects an employee on leave from being dismissed with notice that coincides with the period of leave. Nor is there any rationale for common law principles to be applied differently to employees who are terminated while on leave. [46]
I find apt the summary of the discussion of “dismissal” in D. Harris, Wrongful
Dismissal, looseleaf (Toronto: Thompson Carswell, 2008), at 3-4: Summary: Dismissal is a matter of substance, not form. It is effective when it leaves no reasonable doubt in the mind of the employee that his or her employment has already come to an end or will end on a set date. The actual act of termination may take many forms, other than a direct letter of firing. Butt, in his text The Law of Master and Servant, states: What constitutes dismissal is, of course, a question of fact: its meaning has been discussed by McCardie, J. Re Rebel Bronze, et. al, and Vos, [1918] 1 K.B. 315, who defined it as such act or acts on the part of the master as amount to a repudiation by him of the essential obligations imposed on him by the contract, and who held that there may be such a dismissal in law, although in fact the master has never given the servant a formal discharge. ... Certain courses of conduct on the part of an employer have been held to signal dismissal apart from any verbal expression of that intention. [Emphasis in original.]
[47]
In this case, the appellant’s employer resolved to cease operations and
terminate her position, having previously taken steps to implement these resolutions: dismissing her replacement and closing her workplace. It is irrelevant, in my opinion, that the appellant was not at the time attending her workplace because of her leave. She knew of these actions, and they could leave no reasonable doubt in her mind that her employment had come to an end. It is only because those then managing the remaining affairs of the Society did not believe it was necessary,
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terminated, or in determining the amount of her severance.
Lewis v. Terrace Tourism Society
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because of her leave, to provide her with actual notice that her employment had ended that the dismissal falls under the rubric of “constructive dismissal”, and it can
[48]
The effect of these events is accurately described by the definition of
constructive dismissal endorsed by Gonthier J. in Farber v. Royal Trust Co., [1997] 1 S.C.R. 846 at para. 33: A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee. Such action amounts to a repudiation of the contract of employment by the employer whether or not he intended to continue the employment relationship. Therefore, the employee can treat the contract as wrongfully terminated and resign which, in turn, gives rise to an obligation on the employer’s part to provide damages in lieu of reasonable notice.
[49]
In my opinion, the trial judge’s conclusion that the appellant’s employment
contract had not been repudiated by the Society was a misapprehension of the evidence and a misapplication of the law. It derives from the Society’s position that their actions could not amount to constructive dismissal because the appellant was on leave, and it had not repudiated the employment contract because it had not provided notice or offered severance, though it intended to pay severance. Such a conclusion stands the law “on its head” and cannot be maintained. The Appellant’s Small Claims Action [50]
Because I have concluded that the Society had repudiated the appellant’s
employment contract, it is not necessary for me to deal with the second issue that arises in this appeal: whether the appellant repudiated her employment contract by commencing an action for wrongful dismissal in Small Claims Court. [51]
If it could be said that the Society’s actions did not amount to repudiation of
her employment contract, I would nonetheless find that she had not repudiated the employment contract by bringing her Small Claims action.
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somehow be posited that the Society had not ended the employment relationship.
Lewis v. Terrace Tourism Society [52]
Page 16
In Zaraweh v. Hermon, Bunbury & Oke, 2001 BCCA 524, Saunders J.A. for
the Court explained the principle expressed in Suleman v. British Columbia Research Council (1990), 52 B.C.L.R. (2d) 138 (C.A.), and applied by the trial judge
repudiated the employment contract by constructive dismissal or otherwise, the commencement of an action for dismissal must be viewed as an unjustified repudiation by the employee. [53]
It should first be noted that in both Suleman and Zaraweh, an employee
commenced an action for wrongful dismissal during the period of working notice. In Suleman, the Court held that the employee had not been constructively dismissed, her employment contract was not terminated until the end of the notice period, and by commencing the action, she had repudiated the contract of employment. In Zaraweh, Saunders J.A. considered that it is “an over-stretch of that decision” to say that an employee can never sue an employer before the end of a period of working notice (at para. 27). The Court held in Zaraweh that because the notice provided by the employer was unreasonable, it was a breach of the contract though not a repudiation, and the employee was entitled to sue for damages for the breach. [54]
This case is not about whether a period of working notice is sufficient. There
was no notice given to the appellant at all. The Society acknowledged that it owed the appellant severance, which is payable for a breach of the employment contract, even if the breach does not amount to repudiation. [55]
In these circumstances, where all of the indicia of the employment
relationship had ended with the employer’s cessation of business, it would constitute a “trap for the unwary” to hold that an employee cannot sue to have a court declare her rights without risking a finding that she had, by doing so, repudiated whatever vestige of the employment contract might remain.
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(at para. 40), that unless an employee can establish that the employer has
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Conclusion [56]
It is my opinion that the Society effectively dismissed the appellant and
terminate the position of Executive Director without providing notice. Its intention to offer her severance sometime in the future did not keep the contract alive. The appellant was entitled to sue the Society for wrongful dismissal. [57]
I would allow the appeal, set aside the order appealed from, and remit the
matter to the Supreme Court for the determination of the appellant’s damages. “The Honourable Madam Justice Levine” I agree: “The Honourable Mr. Justice Low”
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repudiated her employment contract when it took steps to cease business and