



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Albert 
          v. Conseil Scolaire Francophone de la Colombie-Britannique,







2009 
          BCCA 19



Date: 20090122

Docket: CA034590

Between:

Anne-Marie 
    Albert

Appellant

(
Plaintiff
)

And

Le 
    Conseil Scolaire Francophone de la Colombie-Britannique
also known as Francophone Education Authority of
British Columbia

Respondent

(
Defendant
)




Before:


The 
          Honourable Madam Justice Ryan




The 
          Honourable Mr. Justice Lowry




The 
          Honourable Madam Justice Neilson








W. 
          R. Southward


Counsel for the Appellant




N. 
          T. Mitha


Counsel for the Respondent




Place 
          and Date of Hearing:


Victoria, British Columbia




September 24, 2008




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 22, 2009








Written 
          Reasons by
:




The 
          Honourable Madam Justice Neilson




Concurred 
          in by:




The 
          Honourable Madam Justice Ryan
The Honourable Mr. Justice Lowry



Reasons 
    for Judgment of the Honourable Madam Justice Neilson:

INTRODUCTION


[1]

The appellant, Anne-Marie Albert, is an employee of the respondent, 
    Le Conseil Scolaire Francophone de la Colombie-Britannique, also known as 
    the Francophone Education Authority of British Columbia (CSF).  In 2004, 
    she sued CSF, alleging breaches of her employment agreement, wrongful dismissal, 
    intentional infliction of mental suffering, and negligent misrepresentation.  
    Following a trial in 2006, her claims were dismissed but for an award of $500 
    for breach of contract, and an award for moving expenses to be assessed by 
    the registrar.  The reasons for judgment are found at 2006 BCSC 1539, 54 C.C.E.L. 
    (3d) 87.

[2]

On this appeal, Ms. Albert argues that the trial judge made errors 
    in the disposition of her contractual claims.  She has not pursued her claims 
    in tort.

BACKGROUND


[3]

The parties generally accept the chronology of their dealings set out 
    in the trial judges reasons, and I take this background largely from that 
    source.

[4]

CSF is a school district instituted in 1997 to cover Francophone education 
    in British Columbia.  Ms. Albert commenced her employment with CSF as a vice-principal 
    2 (VP2) in Prince Rupert for the 1999-2000 school year.

[5]

CSF had grown rapidly, and introduced the VP2 position to establish 
    an administrative officer in its smaller schools.  The VP2 performed both 
    teaching and administrative functions for the school.  The teaching component 
    was permanent and represented .8 of the job.  The administrative aspect was 
    .2 of the job, and was generally described as temporary but continuous.  
    Temporary meant that the contract term would be for one year, to protect 
    CSF financially if the school closed, in which case the VP2 would return to 
    a teaching position.  Continuous meant that the contract would be automatically 
    renewed each year.

[6]

The trial judge described the VP2 position as amorphous and evolving.  
    When it was introduced, the VP2s signed one-year contracts, but CSF abandoned 
    that practice by 2000.  The trial judge found that the VP2 position was covered 
    by the terms of the Administrative Officer Employment Agreement between CSF 
    and the Regroupement des Directions DÉcoles Francophones (the RDF Contract), 
    which dealt with the terms of employment for Administrative Officers, the 
    Principals and Vice-Principals in the schools.  She noted, however, that CSF 
    did not revise the agreement specifically to include the VP2s, and applied 
    it without a cohesive policy.

[7]

These provisions of the RDF Contract are relevant to this appeal:

Whereas

* * *

d)         
    Le Conseil scolaire francophone and the Administrative Officer (the parties) 
    mutually agree to observe a duty of good faith toward one another, which duty 
    shall apply to the employment relationship of this Contract.

* * *

Section 
    1  Nature of the Appointment

1.1       
    Le Conseil scolaire francophone hereby appoints, on a continuing appointment, 
    ___________________________, as an Administrative Officer for Le Conseil scolaire 
    francophone effective __________________.

* * *

Section 
    2  Reassignment

2.1       
    The Administrative Officer may be reassigned at any time by mutual agreement.

* * *

2.4       
    Upon reassignment to a new position or school, which would provide a lower 
    salary, the Administrative Officer will continue to receive the salary of 
    his/her previous position for 12 months.

* * *

Section 
    4  Termination

* * 
    *

4.4       
    This Contract may be terminated, without just and reasonable cause, by Le 
    Conseil scolaire francophone upon a 4/5 vote of all
the Directors
of Le Conseil scolaire francophone provided that the Administrative Officer 
    shall have been given reasonable notice in writing by Le Conseil scolaire 
    francophone that such a vote is being contemplated, together with the reasons 
    therefore [sic], and that prior to any such a vote being taken, the Administrative 
    Officer has been afforded a full and fair opportunity to be heard by all the 
    members of Le Conseil scolaire francophone in a special in-camera meeting, 
    to be accompanied at the meeting by representatives of the Administrative 
    Officers choice and to respond to the reasons given and to any allegations 
    made against him/her and that upon such a vote being taken the Administrative 
    Officer is forthwith advised in writing stating the reasons therefore [sic].

4.5       
    If Le Conseil scolaire francophone terminates the Contract of the Administrative 
    Officer without just and reasonable cause, Le Conseil scolaire francophone 
    shall offer to the Administrator Officer a teaching position mutually agreed 
    upon and commensurate with his/her qualifications and experience, to be assumed 
    upon the effective date of the termination.

4.6       
    If the Administrative Officer accepts the offer of a teaching position, Le 
    Conseil scolaire francophone shall pay to the Administrative Officer a severance 
    payment equal to the amount of salary he/she would have received for 6 months.

* * *

4.8       
    Any severance payment provided for in this agreement shall be paid as a retiring 
    allowance and will be paid to the Administrative Officer either in one lump 
    sum or by installments as selected by the Administrative Officer and may be 
    deposited directly to a registered retirement savings plan, to the extent 
    permitted by law.

4.9       
    The provisions of article 4.6 and 4.7 do not constitute a waiver of any rights 
    which Le Conseil scolaire francophone or the Administrative Officer may have 
    to enforce this Contract in the Courts under contract or other applicable 
    law.

* * *

Section 
    8  Interpretation

8.1       
    For the purposes of interpreting this Contract, the Contract shall specifically 
    be considered to be subject to the provisions of the School Act, the Teaching 
    Profession Act, and Regulations and Ministerial Orders made thereunder.  Should 
    there exist any conflict between this Contract and the above-stated enactments, 
    then those enactments shall take precedence.

8.2       
    In the event that any term of this Contract is inconsistent with or in violation 
    of the provisions of the School Act or any other laws of the Province of British 
    Columbia, it is hereby deemed to be amended to the extent required to avoid 
    such inconsistency and, if any term of this Contract is thereby annulled, 
    the remainder of this Contract shall remain in full force and effect.

[8]

Ms. Albert sought a leave of absence from her position in Prince Rupert 
    for the 2000-2001 school year to pursue a Masters degree in New Brunswick.  
    When a car accident interrupted her studies, she applied for and received 
    an extension of her leave for the 2001-2002 school year.

[9]

In June 2001, CSF decided to open a new school in Kamloops.  It had 
    limited time to find qualified candidates for the VP2 position at this school 
    and so Mr. LeBlanc, CSFs human resources agent, offered it to Ms. Albert.

[10]

Ms. Albert was reluctant to give up her Masters programme and relocate 
    to Kamloops unless the position was permanent.  The posting referred to the 
    teaching component of the job as a full-time continuing permanent position.  
    Ms. Albert demanded confirmation from Mr. LeBlanc that the VP2 component would 
    also be permanent.

[11]

On August 23, 2001, Mr. LeBlanc faxed Ms. Albert a description of the 
    position that stated:




POSITION 
          DESCRIPTION


Elementary 
          instruction: Kindergarten/Grade 1/Grade 2
and Grade 3 (K/1/2/3)







vice-principal 
          II*







FULL 
          TIME  0.8 FTE*







continuing 
          position (permanent)




...









*This 
          instructional assignment shall be combined with a school administration 
          assignment (0.2 FTE).  Only internal candidates with three (3) years 
          teaching experience will be considered.





[12]

A salary scale for Ms. Albert set out a base salary for the position 
    of $47,185 as a teacher, $3,727 for the administrative component, for a total 
    salary of $50,912, effective from 1 July 2001 to 30 June 2002.

[13]

Ms. Albert accepted the position and moved with her family to Kamloops 
    on Mr. LeBlancs assurance that the VP2 position was permanent.

[14]

After her arrival in Kamloops, Ms. Albert received a letter of understanding 
    from CSF, dated September 20, 2001, that described her position as a one-year 
    temporary position.  She immediately telephoned Mr. Ouimet, the Assistant 
    Superintendent of CSF, to clarify that her position was permanent.  He assured 
    her this would be resolved at a pending meeting in October.

[15]

Before she bought a house in Kamloops, Ms. Albert had further discussions 
    with Mr. Ouimet about the permanency of her position there.  Their accounts 
    of these conversations diverged somewhat.  The trial judge found that there 
    was no contractual assurance or promise that Ms. Alberts administrative position 
    would last for a fixed time, but the standard expectation was that such a 
    position would last three to five years.

[16]

At the end of Ms. Alberts first year at the Kamloops school, CSFs 
    personnel were very pleased with her performance, notwithstanding that a performance 
    evaluation had not been done due to time constraints.  In July 2002, she received 
    notice that her salary for 2002-2003 would be $67,760, without differentiation 
    between the teaching and administrative components of the position.  Another 
    salary document, however, suggested that $3,727 should be added to that salary, 
    for a total of $71,487.  CSF explained this by advising that the increased 
    amount was only for a VP2 who had completed a Masters degree.  The salary 
    documentation was inconsistent, and the trial judge observed that the resulting 
    confusion over Ms. Alberts salary was indicative of the general confusion 
    surrounding the VP2 position.  She accepted, however, that Ms. Alberts salary 
    for 2002-2003 was $67,760.

[17]

Ms. Alberts situation at the Kamloops school began to deteriorate 
    in the fall of 2002 when she encountered difficulties with a new teacher.  
    The new teacher was insubordinate and complained about Ms. Albert.  Parents 
    became involved in the dispute.  The situation was exacerbated in early 2003 
    by a complaint from a parent about Ms. Alberts discipline of her son.  Ms. 
    Albert received limited and inconsistent support during these events from 
    CSF personnel, who were concerned that parental displeasure would undermine 
    the growth of the new Kamloops school.

[18]

On February 4, 2003, Ms. Albert left her position on stress leave, 
    due to anxiety, depression and pain from her earlier car accident.  Despite 
    her absence, she continued to perform administrative duties for the school.

[19]

In mid-February 2003, CSF and RDF agreed to change the VP2 position, 
    and re-classify it as Principal 5 (D5) at the end of the 2003 school year. 
     This was an administrative restructuring, and did not change the job description.  
    The D5 position was to be a one-year contract that would be renewed each year 
    until the school had  50 students, at which point the contract would automatically 
    become continuous.  At the outset, all D5 positions were to be internally 
    posted for members of RDF.  If they were not filled in this process, they 
    would be posted externally.  These changes were formally approved on March 
    23, 2003.

[20]

Ms. Albert returned to work on March 24, 2003.  Shortly after, she 
    was summoned to attend a meeting in Richmond on March 31, 2003 to discuss 
    the problems at the Kamloops school with Ms. Leduc, the Instructional Services 
    Manager, Dr. Ardanaz, the Superintendent of CSF, and Mr. Ouimet.  She 
    was given little information about the purpose of the meeting, or the communications 
    from parents that had instigated it.  The trial judge described this meeting 
    and the events immediately subsequent at paras. 22-25 of her reasons for judgment:

[22]  
    Albert travelled from Kamloops to attend the March 31 meeting.  Ardanaz, Leduc 
    and Ouimet, an intimidating threesome, were in attendance at the two-hour 
    meeting.  No minutes were kept by CSF but Albert wrote to RDF about the meeting 
    soon after.  Ardanaz told Albert that parents and staff had complained about 
    her and that some parents were holding back on re-registration until the situation 
    at the school was resolved.  He told Albert that they were going to have a 
    meeting with the parents on April 7, investigate, and report back to the board.  
    Ardanaz told Albert that she had returned to work without a note from her 
    doctor indicating that she was fit to do so.  Ardanaz also told Albert to 
    go back on sick leave immediately and until further notice pending the results 
    of the investigation.  This was decided without reference to medical documentation 
    to support this decision, a practice contrary to CSFs human resources policy, 
    and without the involvement of the human resources department, also contrary 
    to normal practice.  There was no requirement for an administrative officer 
    to have a medical note stating that she was fit to return to work, although 
    a note could be required to claim sick leave with pay.  Ardanaz also told 
    Albert that the VP2 position was to be phased out and that she would have 
    to apply for the new replacement position of D5, that she would interview 
    for the job and quite possibly not be selected.  In the latter event, she 
    would return to a position as teacher.  Ardanaz did not inform Albert of any 
    deadlines for application.  There was also the suggestion that, although Albert 
    had done an excellent job at the school, her leadership style was not suitable 
    and that stability within the school was the foremost requirement.  When Albert 
    suggested that only two or three parents had complained over incidents that 
    had already been dealt with, Leduc told Albert to round up her supporters 
    for the April 7 parent meeting.  At no time were specific parent or staff 
    complaints detailed.

[23]  
    Albert had a telephone conversation with Leduc on her way home to Kamloops 
    after the meeting.  Leduc told Albert to attend a meeting with herself and 
    the superintendent prior to the parents meeting but not to attend the parents 
    meeting itself.  Instead, she was to meet with Leduc and Ardanaz following 
    the parents meeting to discuss the results.

[24]  
    On April 2, 2003, Ardanaz contacted Albert in anger that she had contacted 
    parents to advise them to attend the parents meeting scheduled for April 7.  
    He was unaware that Leduc had told Albert to contact her supporters.  In the 
    conversation, he told Albert that he considered her conduct to be a severe 
    case of insubordination.

[25]  
    Albert was devastated emotionally by this meeting and these conversations.  
    She had never been critically evaluated in her position before despite her 
    requests for a performance evaluation in the past.  She also felt that Ardanaz 
    had been curt and rude.  She was not informed of specific complaints and felt 
    that Leduc had not kept her informed of Leducs meetings with staff and parents, 
    thus undermining her authority at the school.  She immediately contacted and 
    wrote to RDF.  Albert considered that she had been suspended because she knew 
    that CSF could not order her back to sick leave.  She did not return to work.

[21]

On April 4, 2003, Ms. Alberts doctor provided CSF with a medical note 
    stating that she was fit to attempt a return to work on March 25, 2003, and 
    would continue to be evaluated.  CSF personnel were unable to provide a consistent 
    explanation as to why Ms. Albert did not return to work thereafter.

[22]

Following these events, Ms. Albert sought assistance from her professional 
    association, the B.C. Principals and Vice-Principals Association (BCPVPA).  
    Thereafter, she was aided in her dealings with CSF by a representative of 
    BCPVPA, as well as counsel retained by BCPVPA on her behalf.

[23]

On April 7, 2003, her counsel wrote a letter to CSFs counsel on Ms. 
    Alberts behalf.  This stated that she continued to be under medical care, 
    that the conduct of CSF had caused her great anxiety, and that, as a result, 
    she would not attend the upcoming meetings with parents and the CSF administration.  
    The letter invited further discussion about her employment relationship and 
    future with CSF.

[24]

Dr. Ardanaz, Ms. Leduc and the Kamloops parents met on April 7, 2003.  
    The purpose of the meeting was to inform the parents about the changes to 
    the VP2 position, to seek their input on the qualities sought in a principal 
    for the next year, and to discuss the situation at the school.  Only two parents 
    were openly critical of Ms. Albert.  Another asked whether Ms. Albert 
    would return, and Dr. Ardanaz advised that she would not be coming back right 
    now as she was on sick leave and others would be undertaking training as principal.  
    The CSF representatives deflected open discussion about Ms. Alberts performance 
    by advising that she would be evaluated by human resources.  No one reported 
    to Ms. Albert about what occurred at the meeting.

[25]

CSF personnel gave inconsistent evidence about Ms. Alberts medical 
    condition, and about why she did not return to work.  On April 11, 2003, CSFs 
    lawyer wrote to Ms. Alberts counsel and denied that she was suspended from 
    her employment.  He said that CSF had asked her to provide medical certification 
    of her fitness to return to work due to what was understood to be a serious 
    mental health condition.  At trial, CSF personnel were unable to explain 
    this letter, in view of the earlier doctors note.  Nor could they provide 
    a basis for the statement that Ms. Albert had a serious mental health condition.  
    The trial judge noted that, regardless of the lack of substance for that statement, 
    Ms. Albert did not return to work and felt compelled to obtain a psychiatric 
    evaluation and treatment.  A report completed in July 2003 concluded that 
    she was stable and in good control.

[26]

By the end of April, Ms. Leduc asked Ms. Albert to return the administration 
    files to the school, and informed the parents that her replacement teacher 
    was there for an undetermined time.

[27]

The CSF had set a deadline of April 30, 2003 for applications for the 
    new D5 positions from RDF employees.  The evidence indicated that CSF was 
    inconsistent in the manner in which it filled these positions.  Several VP2s 
    were confirmed as D5s without an interview.  The Kamloops D5 position was 
    treated differently, and posted externally.  The trial judge found that this 
    was further indication of the confusion that surrounded the VP2 position.  
    She also found that the Kamloops D5 position was treated differently because 
    of the confrontations between Ms. Albert and the parents and staff.

[28]

On May 5, 2003, Ms. Albert was advised through her counsel that she 
    could apply for the Kamloops D5 position after she saw a psychiatrist.  Ms. 
    Albert applied on May 12, 2003.  She met all the formal criteria and was granted 
    an interview, but the position was awarded to another candidate.  Ms. Albert 
    also applied for other administrative positions with CSF without success.

[29]

By the end of June 2003, when Ms. Albert had not received an offer 
    of any other position with CSF, she contacted CSF and pointed out that paragraph 
    4.5 of the RDF Contract required CSF to offer her a position following termination 
    without cause.

[30]

Ultimately, Ms. Albert and CSF negotiated an agreement that CSF set 
    out in a letter of July 8, 2003.  Ms. Albert received a teaching position 
    at the CSF school in Port Alberni.  This was a permanent position under the 
    collective agreement for instructional personnel, as opposed to an administrative 
    position under the RDF agreement.  However, the parties agreed to treat it 
    as a reassignment under paragraph 2.4 of the RDF Contract, and Ms. Albert 
    accordingly  continued to receive her VP2 salary for her first year in the 
    teaching position.  As well, CSF agreed to pay her moving costs to Port Alberni, 
    pursuant to paragraph 12.1 of Appendix A of the RDF Contract.

[31]

At the time of the trial, Ms. Albert continued to work for CSF as a 
    teacher at the Port Alberni school, and was earning a salary of $59,820.

THE 
    ISSUES


[32]

Ms. Albert brought an application to adduce fresh evidence on this 
    appeal.  As well, she alleged that the trial judge erred in six respects:

[1]        in finding that Ms. Albert had not been wrongfully 
    dismissed by CSF, and awarding only nominal damages for a technical breach 
    of contract;

[2]        in finding that Ms. Albert was not entitled 
    to a severance payment under paragraph 4.6 of the RDF Contract due to the 
    operation of s. 14.4 of the
Public Sector Employers Act
, R.S.B.C. 
    1996, c. 384 and s. 6(3) of the
Employment Termination Standards
, 
    B.C. Reg. 379/97;

[3]        
    in finding that Ms. Albert was not entitled to an award of damages related 
    to the manner of her dismissal;

[4]        
    in finding that CSF did not owe Ms. Albert $7,454 for unpaid salary as a VP2 
    during 2002-2003 and 2003-2004;

[5]        
    in finding that CSF was not obliged to reimburse Ms. Albert for dental expenses 
    incurred in 2003-2004;

[6]        
    in awarding CSF its costs.

DISCUSSION


The application to lead fresh evidence

[33]

Ms. Albert applied to lead fresh evidence comprised of volume VII of 
    the trial transcript, and four documents.  There is no issue with respect 
    to the transcript, which would be available to the Court in any event.  CSF 
    opposed the admission of the four documents.

[34]

As this Court explained in
Spoor v. Nicholls
, 2001 BCCA 
    426, 90 B.C.L.R. (3d) 88 at para. 16, the test for the admission of fresh 
    evidence in a civil case is found in the criminal case of
Palmer v. 
    The Queen
, [1980] 1 S.C.R. 759.  There, McIntyre J. for the Court 
    set out the governing principles at 775:

(1)
The evidence should generally not be admitted if, by due diligence, it 
    could have been adduced at trial provided that this general principle will 
    not be applied as strictly in a criminal case as in civil cases: see
McMartin 
    v. The Queen
[ [1964] S.C.R. 484].



(2)
The evidence must be relevant in the sense that it bears upon a decisive 
    or potentially decisive issue in the trial.



(3)
The evidence must be credible in the sense that it is reasonably capable 
    of belief, and



(4)
It must be such that if believed it could reasonably, 
    when taken with the other evidence adduced at trial, be expected to have affected 
    the result.

[35]

The first two documents were a copy of CSFs seniority list and a portion 
    of the Teachers Collective Agreement that was in effect from 2001 to 2004.  
    Ms. Albert sought to admit these as a basis for what she said was a new argument 
    that CSF was negligent in failing to honour her seniority by giving her the 
    option of a teaching position at the Kamloops school when her employment as 
    a VP2 ended.  However, this was pleaded as a breach of the employment contract 
    in paragraph 13(c)(iii) of the further amended statement of claim, and rejected 
    by the trial judge at para. 52 of her reasons for judgment.  Ms. Alberts 
    counsel frankly admitted that these documents were in her possession prior 
    to the trial.  These documents accordingly do not satisfy the due diligence 
    requirement of the
Palmer
test.

[36]

The third document is notes of a meeting of CSF personnel on February 
    24, 2003, which Ms. Albert says relate to action she took in regard to salary 
    changes imposed upon her in 2002.  She says this document was not provided 
    to her at trial and that it is relevant to her fourth ground of appeal.  The 
    notes simply state that there have been discussions regarding Ms. Alberts 
    salary and the CSF is still checking.  I cannot see how this document would 
    have affected the result at trial.

[37]

The last document is a copy of a receipt in the amount of $1,001.24 
    for dental services to Ms. Alberts husband.  Ms. Alberts counsel advises 
    that it was available at trial but was overlooked.  It fails to meet the 
    due diligence test set out in
Palmer
.

[38]

I would accordingly dismiss the application to adduce fresh evidence.

Did the trial judge err in finding that Ms. Albert had 
    not been wrongfully dismissed by CSF, and awarding only nominal damages for 
    a technical breach of contract?

[39]

At trial, Ms. Albert claimed $299,976 as damages for wrongful dismissal.  
    This represented the projected salary differential between a teaching position 
    and an administrative position with CSF for the balance of her career.

[40]

The trial judge dealt with this claim at paras. 46-52 of her reasons 
    for judgment.  She found that the RDF Contract applied to Ms. Albert as a 
    VP2.  She held that paragraph 1.1 of the RDF Contract, as well as Ms. Alberts 
    dealings with CSF when she was hired for the VP2 post in Kamloops, established 
    that it was a continuing position, not a one-year contract.  She found that 
    CSF effectively terminated Ms. Albert as a VP2 without cause on March 31, 
    2003, although it continued to pay her salary and benefits to June 20, 2003 
    (this date was in error and should have been July 31, 2003, a matter discussed 
    later in these reasons).  She decided, however, that the terms of the RDF 
    Contract, as well as the law governing employment contracts, precluded Ms. 
    Albert from recovering damages for wrongful dismissal.

[41]

The trial judge properly observed that an offer of permanent employment 
    does not mean that employment is offered until retirement unless that is expressly 
    articulated.  She found that the RDF Contract contained no such term.

[42]

Further, the trial judge held that paragraphs 4.4, 4.5, and 4.6 of 
    the CSF Contract allowed CSF to terminate Ms. Albert without cause, so long 
    as she was offered a teaching position in compliance with paragraph 4.5.  
    She noted that Ms. Albert demanded, and accepted, such an offer, and that 
    CSF had agreed to pay her as a VP2 for her first year in that teaching post 
    and to pay her moving costs, concessions that it was not required to make 
    under paragraph 4 of the RDF Contract.

[43]

The trial judge acknowledged that CSF did not evaluate Ms. Alberts 
    performance before terminating her contract as a VP2.  Nor had it followed 
    the procedural steps set out in paragraph 4.4 of the RDF Contract.  She found, 
    however, that Ms. Albert was aware that her position had been terminated and 
    that, although she was represented by counsel, she did not demand that CSF 
    follow the required procedural steps before dismissing her.

[44]

At paras. 73-75 of her reasons, the trial judge considered whether 
    these procedural irregularities entitled Ms. Albert to a remedy.  She observed 
    that Ms. Albert was not seeking an administrative remedy, or reinstatement.  
    Her claim was limited to damages for breach of contract.  She referred to
Richards v. Athabasca School District No. 839
, [1931] S.C.R. 
    161 and
Lalonde v. Kelowna (City)
(1981), 29 B.C.L.R. 125 (S.C.) 
    as support for the view that the failure to follow procedural steps should 
    be viewed as a technical breach only, if following the procedures would not 
    have changed the result, or if the plaintiff has accepted severance pay and 
    does not seek reinstatement.  She concluded at para. 75 that the procedural 
    irregularities constituted a technical breach of contract:

[75]      
    The plaintiff has not established that there would have been any different 
    result if her termination had been considered by the board of CSF or if CSF 
    had followed the procedures related to the evaluation of her performance. 
     This was a dismissal without cause.  The VP2 position was undergoing 
    change.  There was uncertainty whether the RDF contract applied to VP2s.  
    The leadership at Kamloops was integral to the success of the school.  
    The superintendent of CSF had lost confidence in Alberts ability to regain 
    the support of parents or teachers.  The plaintiff did not request a 
    hearing before the board or a formal notification of the reasons for her dismissal. 
     It is improbable that termination without cause would not have ensued 
    in any event.  Failure to follow procedure was a technical breach of 
    contract separately compensable from severance pay.  In these circumstances, 
    nominal damages in the amount of $500 are awarded.

[45]

Ms. Albert says the trial judge erred in finding a technical breach 
    of the contract only.  She points out that the preamble to the RDF Contract 
    imposes a duty of good faith on CSF, and says that, viewed in that context, 
    the trial judge should have found that CSFs failure to evaluate her performance 
    and follow the procedures in paragraph 4.4 before dismissing her was a fundamental 
    breach of contract, and entitled her to substantial damages for wrongful dismissal.

[46]

With respect to CSFs duty to evaluate her before her dismissal, Ms. 
    Albert points to paragraph 16 of Appendix A of the RDF Contract.  This provides 
    a process for evaluation of Administrative Officers by CSF in accordance with 
    CSF policy.  The only CSF evaluation policy in evidence was Policy G-7005.  
    This is entitled Evaluation of Principals, and mandates regular evaluation 
    of Principals by the Superintendent, in part to provide a basis for all decisions 
    regarding  terminations.  Ms. Albert says that since she was the
de facto
principal at the Kamloops school, this policy applied to her.  Essentially, 
    she argues that an evaluation was a precondition to the lawful termination 
    of her employment as a VP2, and the trial judge should have found that CSFs 
    failure to evaluate her constituted a breach of her employment contract, and 
    entitled her to damages.

[47]

I am unable to agree.  Paragraph 16 of Appendix A does not state that 
    Administrative Officers must be evaluated before they can be terminated.  
    Further, Policy G-7005 clearly applies only to principals.  It makes no mention 
    of VPs, VP2s, or Administrative Officers generally.  Even if CSFs confusion 
    over the VP2 position justified applying this policy to Ms. Albert, its wording 
    does not require an evaluation as a precondition of termination.

[48]

With respect to the failure to follow the procedural requirements in 
    paragraph 4.4, Ms. Albert seeks to distinguish the cases relied on by the 
    trial judge, and points to
Cardinal v. Director of Kent Institution
, 
    [1985] 2 S.C.R. 643 at 661 for the proposition that the denial of a right 
    to a fair hearing renders a decision invalid, whether or not the hearing would 
    have resulted in a different decision.

[49]

With respect, Ms. Alberts argument is misconceived to the extent that 
    it relies on principles and authorities from the field of administrative law.  
    As the trial judge pointed out, Ms. Albert has cast her claim against CSF 
    as an action for wrongful dismissal, rooted in the law of contract.  She cannot 
    use that vehicle to seek judicial review of CSFs decision or reinstatement 
    due to procedural irregularity:
Jalan v. Inst. Of Indigenous Government 
    et al
, 2005 BCSC 590, at paras. 117-119, [2005] B.C.J. No. 929;
Dunsmuir 
    v. New Brunswick
, 2008 SCC 9 at para. 81.

[50]

Ms. Albert knew at the end of March 2003 that the VP2 position was 
    being phased out and that she would have to compete for the new D5 position.  
    From April 7, 2003 she was represented by counsel or by a representative of 
    the BCPVPA in her dealings with CSF.  By the end of May 2003, she knew that 
    she had been unsuccessful in obtaining a D5 position, and that her duties 
    as a VP2 would come to an end on June 30, 2003.  Instead of insisting that 
    CSF observe the procedural steps in paragraph 4.4, she chose to negotiate 
    a resolution that entitled her to a teaching position with CSF, increased 
    salary for her first year in that position, and her moving expenses.

[51]

I am satisfied that the trial judge made no error in finding that CSFs 
    failure to follow those steps was a mere technical breach of contract.

[52]

Finally, Ms. Albert says that even if this was a technical breach, 
    the award of $500 as nominal damages was too low.  She refers to
Finn 
    v. St. Johns (City)
, 2002 NLCA 76, 220 Nfld.
&

P.E.I.R. 245 at paras. 64-65 as support for the view 
    that she should have received at least one months salary, which was $6,500.

[53]

An award of nominal damages is a discretionary matter.
Finn
can be distinguished on the basis that it involved a breach of statutory requirements 
    by a public authority.  In
Remedies
:
The Law of Damages
, 2d 
    (Toronto: Irwin Law Inc., 2008), Professor Cassels at page 310 describes nominal 
    damages as a small sum of money awarded when the plaintiff has established 
    a cause of action but has suffered no substantial loss, or has successfully 
    mitigated the loss.  I am satisfied that the sum of $500 is a reasonable award 
    for nominal damages here, and I would not interfere with the trial judges 
    assessment.

[54]

In summary, I find no error in the trial judges conclusion that Ms. 
    Albert was not wrongfully dismissed by CSF.  The RDF Contract clearly entitled 
    CSF to dismiss employees without cause.  There were several legitimate reasons 
    to terminate Ms. Alberts employment as a VP2.  CSF was not required to evaluate 
    her performance before doing so.  While the procedural steps in paragraph 
    4.4 were not followed, this had no bearing on the outcome of her contractual 
    claim for damages.

Was there a legislative bar to recovery of a severance 
    payment under paragraph 4.6 of the RDF Contract?

[55]

Ms. Albert argues that the trial judge erred in finding that the legislative 
    framework underlying her employment with CSF precluded her from receiving 
    the severance payment of six months salary, or $35,744, contemplated by paragraph 
    4.6 of the RDF Contract.

[56]

The trial judge usefully summarized the relevant legislation, the issue, 
    and her conclusion at paras. 53-56 of her reasons for judgment:

[53]      There 
    is then the question of notice period for termination of the VP2 position 
    without cause.  Paragraph 4.6 of the RDF contract said that if the administrative 
    officer accepted the offer of a teaching position, then CSF was required to 
    pay severance equal to six months of salary, in this case, $35,744.  The 
    defendant, however, argued that this clause was void because of operation 
    of the
Public Sector Employers Act
, R.S.B.C. 1996, c. 384 (the
Act
) and the regulations enacted under section 14.4 of the
Act
, 
    the
Employment Termination Standards
(the
Regulations
). 
     The pertinent subsections of section 14.4 are:



14.4
(1)    The Lieutenant Governor in Council 
    may, by regulation, establish employment termination standards for an employee.







(3)    
    If the Lieutenant Governor in Council establishes an employment termination 
    standard by regulation under subsection (1), effective on the date on which 
    the regulation comes into force,



(a)   the 
    standard is deemed to be included in all applicable contracts of employment 
    that are commenced, changed or renewed on or after that date, and



(b)   any 
    provision of an applicable contract of employment referred to in paragraph 
    (a) that conflicts or is inconsistent with the standard is void to the extent 
    of the conflict or inconsistency.



(4)   The 
    Employment Termination Standards regulation (B.C. Reg. 379/97) made under 
    this Act before the commencement of this section continues, as amended by 
    this section, and is deemed to have been made under this section.



(5)   On 
    the effective date,



(a)   the 
    Employment Termination Standards regulation (B.C. Reg. 379/97) is deemed to 
    have been amended as set out in the Schedule to the
Public Sector Employers Amendment Act, 2002
,

(b)   the 
    employment termination standards set out in that regulation are deemed to 
    be included in all applicable contracts of employment that are in force on 
    the effective date or are commenced, changed or renewed on or after that date, 
    and

(c)   any 
    provision of an applicable contract of employment referred to in paragraph 
    (b) that conflicts or is inconsistent with any of those standards is void 
    to the extent of the conflict or inconsistency.

(6)   Subsection 
    (5) is retroactive to the extent necessary to give it force and effect on 
    and after the effective date.



(7)   The 
    amendment to section 5 (2) of the Employment Termination Standards regulation 
    (B.C. Reg. 379/97) made under this section does not apply in relation to an 
    employee with whom a contract of employment was entered into before the effective 
    date and which contract of employment is for a definite term unless that contract 
    of employment is changed or renewed on or after the effective date.



[54]

The CSF is a public sector employer within section 
    1(c) of the
Act
as it is a francophone education authority as 
    defined in the
School Act
.  Section 6(3) of the
Regulations
states:



Re-employment 
    in the public sector

6 (3)    If an employee commences employment with 
    a public sector employer during the notice period or period of notice in lieu 
    of which severance is provided,



(a)   no severance covering this period of re-employment 
    is payable, and



(b)   the 
    employee must pay the government any amount that is attributable to the period 
    during which the employee is re-employed.



[55]

By section 14.4(3)(a) of the
Act
, the employment 
    termination standard is included in all contracts of employment that are commenced, 
    changed or renewed on or after the date that the regulation comes into force. 
     By section 14.4(3)(b) of the
Act
, any contractual provision 
    that conflicts with or is inconsistent with the standard is void to the extent 
    of any conflict.  If section 6(3) of the
Regulations
was 
    in force at the time that the plaintiff entered into the contract of employment, 
    she was no longer entitled to severance pay under paragraph 4.6 of the contract 
    because once she had commenced her position in Port Alberni, such pay would 
    be in conflict with the
Regulations
.



[56]

The effective date is defined in section 14.1 of the
Act
as the date on which the
Public Sector Employers Amendment 
    Act, 2002
, S.B.C. 2002, c. 64 (the
Amendment Act
) receives 
    first reading in the Legislative Assembly.  The first reading was on 
    October 21, 2002.  This was after the date when the plaintiff entered into 
    the contract of employment.  The defendant argued that section 6(3) of 
    the
Regulations
is applicable as a result of the retroactive 
    provisions of sections 14.4(5) and (6) of the
Act
.  The 
    plaintiff argued that the termination standard is applicable only to contracts 
    entered into after the effective date as a result of section 14.4(7) of the
Act
.  I have concluded that section 6(3) of the
Regulations
was in force at the time that Albert entered into the contract of employment.

[57]

The trial judge then explained the basis for her conclusion.  Briefly, 
    she found that the
Act
and
Regulations
applied 
    to contracts between CSF and its employees since August 1, 1997.  Under that 
    legislation, the
Regulations
were deemed to be included in those 
    contracts, and any contractual provision inconsistent with them was deemed 
    void.  In particular, s. 6(3) of the
Regulations
had been in 
    force since May 1997, and was continued by s. 14.4(4) of the
Act
.  
    It was therefore applicable to Ms. Alberts employment contract.  At para. 
    58 of her reasons for judgment the trial judge concluded that since paragraph 
    4.6 was inconsistent with s. 6(3) of the
Regulations
, it was 
    void to the extent of that inconsistency, and no severance was payable from 
    the point when Ms. Albert commenced her teaching position at Port Alberni.  
    The rest of the RDF Contract remained in force pursuant to paragraph 8.2.

[58]

Ms. Albert does not attack the trial judges interpretation of the
Act
and
Regulations
.  Instead, she presents two 
    arguments that do not appear to have been made at trial.

[59]

First, she says that the trial judge failed to appreciate that the 
    six month severance payment provided by paragraph 4.6 was in fact a retiring 
    allowance, and was thus not subject to s. 6(3) of the
Regulations
.  
    She points out that paragraph 4.8 of the RDF Contract states that any severance 
    payment under the agreement shall be paid as a retiring allowance.  She 
    says that s. 2.1(1) of the
Regulations
also distinguishes between 
    severance and a retiring allowance.  This states:

2.1       
    (1)  An employee who receives a notice period or severance must not be given 
    a retiring allowance.

Ms. 
    Albert says that the trial judge should have found that the intent of paragraphs 
    4.6 and 4.8 was to exempt employees who were dismissed without cause from 
    s. 6(3) of the
Regulations
, and that she was thus entitled to 
    receive $35,744 as a retiring allowance upon termination of her employment.

[60]

I am unable to accept that proposition.  The RDF Contract and the
Regulations
both define retiring allowance in a manner incompatible with Ms. Alberts 
    argument.  Section 13 of Appendix A to the RDF Contract contains the only 
    other reference to retiring allowance in the Contract.  It is titled Retiring 
    Allowance and states:

An 
    administrator who is 55 years of age or older shall receive, on retirement, 
    a retiring allowance in recognition of his/her service to Le Conseil scolaire 
    francophone equal to five (5) percent of his/her annual salary at retirement 
    for each year of service with Le Conseil scolaire francophone and the immediately 
    preceding school district, either as a teacher or as an Administrative Officer 
    to a maximum of one years salary.

[61]

It is a reasonable assumption that it was the intent of the parties 
    to the RDF Contract to use contractual terms consistently.  Retiring allowance 
    as defined by s. 13 clearly has no application to Ms. Albert.  She was not 
    55 years old, and she was not retiring.

[62]

Similarly, the
Regulations
define notice period, retiring 
    allowance, and severance:

notice 
    period
means the length of time from the date on which notice 
    of termination is given to an employee until the date on which employment 
    will terminate;



retiring 
    allowance
means a payment that, by a contract of employment, an 
    employee may receive on or after retirement of the employee from his or her 
    employment in recognition of the employees service, but does not include



severance
means the severance payment made in lieu of the notice 
    period;

[63]

Those definitions are of no assistance to Ms. Albert, particularly 
    when read in conjunction with s. 2.1(1) of the
Regulations
, 
    which makes a notice period or severance mutually exclusive with a retiring 
    allowance.

[64]

I am satisfied that the trial judges interpretation of the legislation 
    and the RDF Contract was correct.  Paragraph 4.6 clearly deals with a severance 
    payment following dismissal without cause.  I find it a reasonable inference 
    that paragraph 4.8 permits the severance to be paid as a retiring allowance 
    for tax reasons, since it permits the deposit of the payment into a registered 
    retirement savings plan.  However, it is not necessary to decide that point.  
    Payment of severance as a retiring allowance does not alter the fundamental 
    nature of the payment.  It is a severance payment, and s. 6(3) of the
Regulations
precludes Ms. Albert from receiving it.

[65]

Ms. Alberts second argument is that s. 6(3) of the
Regulations
only applies to severance paid once an employee commences re-employment with 
    a public sector employer.  She says that her employment as a VP2 ended on 
    June 30, 2003, and the teaching position in Port Alberni did not start until 
    September 1, 2003.  She is therefore entitled to severance pay under paragraph 
    4.6 of the RDF Contract for July and August.

[66]

I agree that this is a reasonable interpretation of s. 6(3) if there 
    is a hiatus between an employees termination date and the commencement of 
    the new teaching position.

[67]

However, CSF says this does not apply to Ms. Albert, as she continued 
    to receive her salary as a VP2 during July and August 2003.   CSF points out 
    that, although Ms. Alberts duties as a VP2 in Kamloops ended in June 2003, 
    the pay periods under her VP2 Contract did not end until July 31, 2003.  The 
    agreement reached between the parties and recorded in the letter of July 8, 
    2003 entitled Ms. Albert to be paid as a VP2 for the first year of her teaching 
    position in Port Alberni, commencing August 1, 2003.  Ms. Alberts Employees 
    Pay History confirms that she was paid as a VP2 during July and August 2003.  
    CSF says it would be inconsistent and unfair to now permit Ms. Albert to rely 
    on paragraph 4.6 to obtain double recovery for those two months.  If she is 
    entitled to severance pay under paragraph 4.6 for that period, it should be 
    set off against the salary she was already paid for those months.

[68]

I am satisfied that the documentary evidence supports a conclusion 
    that, although Ms. Albert was not working during the summer of 2003, CSF continued 
    to pay her as a VP2 for July and August.  There was therefore no hiatus in 
    her income between her termination as a VP2 and the commencement of her employment 
    in Port Alberni.  Nor did her income level change.

[69]

I cannot agree that it is the intent of the legislative scheme underlying 
    public sector employment to permit Ms. Albert to achieve double recovery by 
    collecting severance under paragraph 4.6 at the same time that she continued 
    to receive her VP2 salary.  Clearly the intent of the legislation is to minimize 
    the payment of severance from the public purse.  I accordingly would not give 
    effect to this argument.

Was Ms. Albert entitled to damages related to the manner of her dismissal?

[70]

At trial, Ms. Albert sought damages in the form of an extension of 
    the notice period related to the manner of her dismissal, in accord with the 
    principles in
Wallace v. United Grain Growers Ltd.
, [1997] 3 
    S.C.R. 701, 152 D.L.R. (4th) 1.   She claimed that CSF had acted unfairly 
    and in bad faith in terminating her employment as a VP2.

[71]

The trial judge reviewed the 
    principles in
Wallace
, and the decision of Tysoe J. in
Lane 
    v. School District 68 (Nanaimo-Ladysmith)
, 2006 BCSC 129, 47 C.C.E.L. 
    (3d) 219.
Lane
was a case involving a similar contract and 
    legislative scheme.
At para. 
    188 of that decision, Mr. Justice Tysoe stated:

The 
    second reason why Ms. Lane is not entitled to Wallace damages is that her 
    contract of employment stated that the School Board had the ability to dismiss 
    Ms. Lane without cause and, at its discretion, provide Ms. Lane with 12 months' 
    notice of termination or pay her salary and benefits for 12 months. In these 
    circumstances, where there is an employment contract containing an express 
    term regarding notice of termination or payment in lieu thereof, the law does 
    not imply a term providing for reasonable notice which is different from the 
    express term: see
Barnard v. Testori America Corp
., [2001] P.E.I.J. 
    No. 28, 2001 PESCAD 4 at [paragraph] 7. Even if the School Board had acted 
    with bad faith in terminating Ms. Lane's employment, the maximum amount of 
    damages she is entitled to receive under her contract of employment is the 
    equivalent of 12 months' salary and benefits. She has already been paid this 
    amount, and she is not entitled to be paid any further damages.

[72]

The trial judge concluded at para. 69 of her reasons for judgment that 
    Ms. Albert was not entitled to
Wallace
damages because she had 
    not been wrongfully dismissed by CSF.  She agreed with Tysoe J. that damages 
    arising from the manner of dismissal are not recoverable where the employment 
    contract expressly limits the severance payable, and legislation further limits 
    that severance if the employee accepts another teaching position.

[73]

While those findings made it unnecessary for the trial judge to consider 
    whether CSF had acted unfairly or in bad faith in the course of terminating 
    Ms. Albert, she nevertheless went on to consider this, and concluded that 
    it had not.  The basis for that finding is set out at para. 71 of her reasons 
    for judgment:

[71]

In this case, the plaintiff was terminated shortly after 
    returning from sick leave, was not informed about the purpose of the March 
    31 meeting, was treated insensitively at the meeting, was subsequently marginalized 
    by her superiors, was not given an opportunity to respond to concerns about 
    her performance, was never evaluated as to performance, and was not dismissed 
    according to contractual procedure.  On the other hand, CSF was entitled 
    to dismiss without cause, the dismissal pertained to only a small portion 
    of her employment, she was offered a new teaching position in reasonable time, 
    she lost no salary and was paid excessively over the ensuing year, and the 
    conduct of CSF can be blamed on general confusion about the VP2 position and 
    anxiety concerning the future of the Kamloops school.  Although CSF could 
    certainly have handled the situation better, especially the key personnel 
    responsible for the Kamloops school, I do not find bad faith or unfair dealing 
    in the overall circumstance when there was no ill will directed towards the 
    plaintiff personally, but rather a heightened, hyperventilated concern about 
    the growth and future of the Kamloops school.

[74]

Later in her reasons, the trial judge dealt with the plaintiffs claims 
    of intentional infliction of mental suffering and negligent misrepresentation 
    (which are not being pursued on this appeal).  At paras. 78 and 80 she made 
    additional findings that have some bearing on CSFs conduct, and whether it 
    acted unfairly or in bad faith in its dealings with Ms. Albert:

[78]

The plaintiff has not proven the tort [of intentional 
    infliction of mental suffering].  The conduct of CSF did not reach the 
    level of flagrant or outrageous.  It did not engage in conduct that would 
    foreseeably inflict shock and mental suffering.  CSF did not make reckless, 
    careless, or inaccurate accusations against the plaintiff, nor did CSF employees 
    show wanton disregard for the plaintiffs health.  Although Ardanaz and 
    Leduc were insensitive during and after the March 31 meeting, I do not conclude 
    that either specifically intended to cause Albert mental suffering.  They 
    were focused on the future of the Kamloops school and tried to manage the 
    situation when the position of VP2 was in a state of confusion and flux, when 
    parents had questioned Alberts leadership style, and when there had been 
    disruption at the school due to absences of the two main teachers for extended 
    periods during the school year.  They did express some concern for the 
    plaintiffs state of health and requested updated medical reports to follow 
    through on her recovery.  The medical report of July 2003 did not suggest 
    that the plaintiffs depression had been caused by the manner of her discharge 
    as VP2, but rather by the culmination of events at the school since the fall 
    of 2002 and the plaintiffs fragile state as a result of her previous car 
    accident.  In any event, the plaintiff was in good and stable condition 
    by July 2003 such that any conduct by CSF resulted in only transient injury 
    to feelings.







[80]

The evidence [related to negligent misrepresentation] 
    established that the plaintiff did not consider anything that Ouimet may have 
    said in the October conversation to be an assurance or promise that she would 
    remain in Kamloops for four or five years.  She knew that Ouimet could 
    not promise her anything in the future.  Any comment by Ouimet was based 
    upon the normal time that one could expect to remain in one place into the 
    future dependent upon growth of the school.  This was a brief conversation 
    that included mention about the possibility of Albert buying a house, the 
    specifics of which were not conveyed by Albert.  At the time of the conversation, 
    there was no plan to change the VP2 position and it was expected that Albert 
    would perform well in Kamloops.  Albert said that she would have bought 
    the house regardless of Ouimets statements.

[75]

Since the trial, the Supreme Court of Canada has recast how damages 
    attributable to employer conduct in the manner of dismissal should be measured:
Honda Canada Inc. v. Keays,
2008 SCC 39, [2008] 2 S.C.R. 362 
    at paras. 50-60.  Instead of awarding damages through an extended notice period 
    as advocated in
Wallace
, Bastarache J., writing for the majority, 
    determined that such damages should be awarded according to the classic principle 
    articulated in
Hadley v. Baxendale
(1854), 9 Ex. 341, 156 E.R. 
    145: what was in the reasonable contemplation of the parties at the time the 
    contract was formed?  He observed that there is an expectation by both parties 
    to an employment contract that employers will act in good faith in the manner 
    of dismissing an employee.  Their failure to do so will accordingly lead to 
    foreseeable compensable damages.  With respect to the conduct that will attract 
    such damages, the Court at para. 57 endorsed the view in
Wallace
that it will be conduct during dismissal that is unfair or is in bad faith 
    by being, for example, untruthful, misleading or unduly insensitive.

[76]

As a result of the decision in
Honda
, Ms. Albert now 
    seeks damages of $50,000 instead of an extension of the notice period, due 
    to what she says was bad faith conduct by CSF in terminating her VP2 position.  
    While she acknowledges that  paragraph 4 of the RDF Contract applied to her 
    dismissal, she says that paragraph 4.9 of the RDF Contract nevertheless preserved 
    her right to go to court for additional damages related to her termination.  
    She also points to the term in the preamble of the RDF Contract that the parties 
    will observe a duty of good faith toward each other and argues that,
even if CSF dismissed her in accordance with the terms 
    of that Contract, it did so in a manner that was unfair and in bad faith and 
    thus breached that contractual term.  She says she is accordingly entitled 
    to damages arising from that breach.  She distinguishes
Lane
on the basis that the contract there did not include an express duty of good 
    faith.

[77]

I do not agree that paragraph 4.9 of the RDF Contract adds force to 
    Ms. Alberts arguments.  It simply refers to enforcing the RDF Contract in 
    the courts.  It does not add rights or remedies beyond those in the Contract.

[78]

As to Ms. Alberts argument that CSF breached its contractual duty 
    of good faith, in my view, there is little distinction between an express 
    term of good faith in a contract and the implied term to act in good faith 
    at common law, in deciding whether an employer breached that term in the manner 
    in which it dismissed an employee.  The question remains the same: did the 
    employer act
unfairly or in bad faith?

[79]

Here, the trial judge found that there was no bad faith or unfair dealing 
    by CSF when it dismissed Ms. Albert.  That is a finding of fact, and must 
    be given appellate deference.  This Court cannot interfere unless Ms. Albert 
    establishes that the trial judge made a palpable and overriding error:
Housen 
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 10.

[80]

Ms. Albert argues that the trial judge erred in finding that there 
    had been no bad faith.  She says that the judge failed to consider all aspects 
    of the dealings between the parties, including events prior to her termination, 
    and that she weighed the evidence improperly in concluding that CSFs conduct 
    was due to confusion, rather than bad faith.  Ms. Alberts counsel conceded 
    that the evidence fell short of establishing that CSF deliberately intended 
    to cause Ms. Albert harm, but argued that the trial judge should have found 
    that CSFs insensitivity and reckless disregard met the test for bad faith.

[81]

I am unable to find that the trial judge made any reviewable error 
    in concluding that CSF did not act unfairly or in bad faith in terminating 
    Ms. Alberts employment as a VP2.  She was clearly aware of the legal test 
    for bad faith in
Wallace
.
Honda
has not changed 
    that.  She heard and assessed the witnesses evidence and credibility over 
    the course of an 11 day trial.  Her reasons for judgment display a detailed 
    knowledge of the dealings between Ms. Albert and CSF, and of each of the events 
    that Ms. Albert argues should have supported a finding of bad faith, both 
    before and during her termination.  In my view, there was a proper evidentiary 
    basis for her conclusion that, while CSF was at times confused and inconsistent 
    in their treatment of Ms. Albert, and while it could have handled the situation 
    better, its conduct did not meet a standard of bad faith or unfair dealing 
    that would entitle Ms. Albert to damages.  A further consideration, not expressly 
    mentioned by the trial judge in her analysis, was the fact that Ms. Albert 
    remained employed by CSF at the trial, three years after her termination as 
    a VP2.  In my view, this is an unusual feature in a wrongful dismissal case 
    and further weakens the allegation of bad faith.

[82]

I would not accede to this ground of appeal.

Is Ms. Albert entitled to recover $7,454 from CSF for 
    unpaid salary as a VP2 for 2002-2003 and 2003-2004?

[83]

Ms. Albert claims that CSF owes her unpaid salary of $7,454, which 
    she says represents the annual administrative supplement of $3,727 associated 
    with the VP2 position that she should have received in addition to her teaching 
    salary of $67,760  for each of 2002-2003 and 2003-2004.

[84]

The trial judge dealt with this claim at paras.14 and 59 of her reasons, 
    and disallowed it.  She acknowledged that there had been confusion among the 
    CSF staff as to this issue, which she found indicative of the general confusion 
    surrounding the VP2 position.  She found, however, that this supplement had 
    been paid to only one VP2, on the basis that she had completed her Masters 
    degree.  The other VP2s, including Ms. Albert, were not entitled to it.  The 
    trial judge observed that Ms. Albert had received and accepted a salary of 
    $67,760 in 2002-2003, and that is what appeared in her official salary document.  
    She found that the supplement was not payable to Ms. Albert in 2003-2004 for 
    the additional reason that she no longer held the position of VP2 in that 
    year.

[85]

Ms. Albert argues that, in reaching those conclusions, the trial judge 
    ignored other relevant evidence.  A review of the available documents and 
    testimony, however, does not support that view.  These demonstrate that up 
    to 2002, Ms. Alberts VP2 salary document did break her salary into a teaching 
    component and an administrative component.  In 2001-2002, these were $50,912 
    and $3,727 respectively, resulting in a total salary of $50,912.  In 2002-2003, 
    CSF adopted a new Salary Scale form that did not break down the two components.  
    Instead, it indicated Ms. Albert was to receive a base salary for category 
    VP2 of $67,760.  Mr. Paquin, Manager of Human Resources for CSF, testified 
    that this was because CSF had negotiated a new way to pay VP2s, and had increased 
    their salaries significantly.  There was some inconsistency in CSFs documents, 
    as the trial judge noted.  One did set out a base salary of $71,487 for VP2s.  
    This same document, however, indicated there would be a deduction from that 
    of $4,000 for vice-principals with no Masters degree.  It was silent about 
    a reduction for VP2s.

[86]

Ms. Albert gave evidence that when she received her salary information 
    for 2002-2003 she asked Mr. Menard why she was not receiving the administrative 
    supplement of $3,727 in addition to the base salary of $67,760, and he told 
    her that she was not entitled to it.

[87]

In my view, there was evidence to support the findings of fact made 
    by the trial judge that from 2002 on Ms. Alberts total salary as a VP2 was 
    $67,760, and that she was not entitled to receive an additional $3,727 in 
    2002-2003 and 2003-2004.  Ms. Albert has failed to convince me that there 
    is any basis for disturbing those findings.

Rejection of the claim for dental benefits

[88]

Ms. Albert claimed $3,652.49 for dental services for her husband that 
    she said would have been paid by CSFs benefit plan if she had continued employment 
    as a VP2.  She presented a series of receipts for these services, as well 
    as a Dental Pre-Authorization Remittance Statement issued by Blue Cross, which 
    is dated April 28, 2003 and appears to authorize dental treatment for her 
    husband, Mr. G. Fincham, over the next 12 months.  The record indicates that 
    these documents  were admitted for their truth.  The invoices show that a 
    dentist provided treatment to Mr. Fincham in 2003-2004, and that he was paid 
    for this in part by Blue Cross and in part by credit cards.  Ms. Alberts 
    claim represents the total credit card payments.

[89]

At para. 63 of her reasons for judgment, the trial judge concluded 
    the claim had to be denied because there was no evidence to show that Ms. 
    Albert had actually paid for these services.  In doing so, she relied on
Wilks 
    v. Moore Dry Kiln Co. of Canada Ltd.
(1981), 32 B.C.L.R. 149 (S.C.) 
    at 152, which stands for the proposition that where a plaintiff claims loss 
    of benefits as part of her damages for wrongful dismissal, she must have actually 
    incurred the expense for the benefit in question during the period of reasonable 
    notice.  She is not entitled to recover projected benefits for which she has 
    not paid.

[90]

I disagree with the trial judge that the
Wilks
principle 
    applies to this case.  I am satisfied that the documentary evidence establishes 
    that Ms. Alberts husband was preauthorized for dental work while she was 
    still a VP2, and that he had dental work performed during the following year.  
    I nevertheless agree that the claim cannot succeed.  In my view, the difficulty 
    lies in limitations in those documents.  In the absence of evidence explaining 
    them, it is impossible to tell whether the dental work performed on Mr. Fincham 
    was the same as that which was preauthorized by Blue Cross.  Moreover, it 
    is apparent that Blue Cross paid for some of this work, yet there is nothing 
    to explain how its contributions would have differed if Ms. Albert had remained 
    in a VP2 position.  Nor is there information as to the holder of the credit 
    cards that paid for the balance.  In short, I find it impossible to reliably 
    calculate Ms. Alberts loss on the available evidence.

[91]

I would accordingly disallow this claim.

Costs

[92]

On February 19, 2007, the trial judge awarded CSF its costs up to January 
    25, 2006, and double costs thereafter, apparently on the basis that CSF had 
    made a formal offer of settlement to Ms. Albert that exceeded the amount awarded 
    to her at trial.

[93]

Ms. Albert argues that this award was inappropriate, and that she should 
    instead have recovered special costs from CSF, based on its conduct during 
    the case.  She says that CSF extended the litigation unreasonably and unnecessarily, 
    by taking unreasonable and inconsistent positions.

[94]

CSF says that Ms. Albert made similar submissions to the trial judge, 
    who rejected them.

[95]

An award for costs is a discretionary order, and an appellate court 
    may only interfere with such an order if it finds that the trial judge misdirected 
    herself on the law, or made a palpable error in her assessment of the facts.  
    We do not have the judges reasons on the issue of costs, and the submissions 
    of counsel were abbreviated.  It is impossible to carry out any meaningful 
    review of the award for costs on the limited material before us.  I would 
    not alter the order with respect to costs.

CONCLUSION

[96]

I would accordingly dismiss Ms. Alberts appeal.

The Honourable 
    Madam Justice Neilson

I agree:

The Honourable Madam Justice Ryan

I agree:

The Honourable Mr. Justice Lowry


