



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Jakubcak v. Dr. R.A. Melnyk Inc.,









2011 BCCA 31




Date: 20110121

Docket: CA037129

Between:

David Jakubcak

Appellant

(Plaintiff)

And

Dr. R.A.
Melnyk Inc.
doing business as Coast Dental Centre

Respondent

(Defendant)




Before:



The Honourable Mr. Justice Hall





The Honourable Madam Justice Levine





The Honourable Mr. Justice Tysoe




On appeal from: Supreme
Court of British Columbia, April 15, 2009
(
Jakubcak v. Dr. R.A. Melnyk Inc.
, Vancouver Registry S090729)

Oral Reasons for Judgment




Counsel for the Appellant:



B.J. Lotzkar





Counsel for the Respondent:



C.D. Martin





Place and Date of Hearing:



Vancouver, British
  Columbia

January 19, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 21, 2011








[1]

TYSOE J.A.
: The plaintiff appeals from the order of the summary
trial judge in awarding only $1,426 in damages with respect to the defendants
wrongful dismissal of the plaintiff from his employment with the defendant, and
awarding costs of the entire action to the defendant.

[2]

The defendant operates a dental office, which normally uses the services
of two dental hygienists. The plaintiff is a dental hygienist who had worked
for the defendant on four occasions for one day each prior to the events giving
rise to this litigation.

[3]

In the summer of 2008, one of the defendants full-time dental
hygienists went on maternity leave. She was expected to return to work
following the maternity leave on August 1, 2009. A replacement hygienist was
hired but she also became pregnant, and she terminated her employment in
November 2008.

[4]

The defendants office manager contacted an agency, which was in the
business of supplying temporary dental workers, in search of another
replacement hygienist. It was the same agency which had previously referred the
plaintiff to the defendant in respect of his one-day assignments.

[5]

The defendants office manager was advised by the agency that the
plaintiff had accepted the position. There was a subsequent telephone
conversation between the office manager and the plaintiff, in which they
discussed certain aspects of the employment, including free dental work,
payment of a conference fee and a bonus if the plaintiff continued to work for
the defendant until July 30, 2009 and generated billings in excess of $100,000.
At the plaintiffs request, the office manager sent him a confirmatory e-mail,
which began with the sentence Thank you for taking the maternity leave
position from December 1/08 to July 30/09.

[6]

The plaintiff began working for the defendant on December 1, 2008 but
his employment was terminated with one days notice on December 22, 2008 after
the defendant learned that the full-time hygienist wanted to return from her
maternity leave.

[7]

The plaintiff sued the defendant, asserting that he had a fixed-term
contract of employment and that he was entitled to be paid his remuneration
until July 30, 2009 as well being entitled to damages in respect of the bonus,
the conference fee and the dental work the plaintiff had intended to obtain for
free during the period of his employment with the defendant.

[8]

The matter came on for trial under what was then Rule 18A of the
Rules
of Court
. The summary trial judge had before her affidavits with respect to
the conversation between the plaintiff and the defendants office manager, the
confirmatory e-mail sent to the plaintiff and partial transcripts of the
examination for discovery of the plaintiff.

[9]

The judge concluded that the defendant was entitled to terminate the
plaintiffs employment upon giving him reasonable notice. Her reasoning in this
regard was as follows:

[28]      I do accept that a temporary employment contract
may
create a contract for a definite term pursuant to which an employer will be
liable for the entire period of the employment offered. However, in the absence
of a written contract, the court must determine the nature of the bargain
reached between the parties from the discussions that took place between them.
On the basis of the plaintiffs discovery evidence and the affidavit evidence
of both parties, I conclude that the offer of employment in this case
contemplated that work was available on a temporary basis until August 1, 2009,
when the maternity leave of Ms. Tse was expected to end, but not that the
plaintiff was guaranteed employment for that period of time. In my view, the
overriding aspect of the defendants offer of employment was its temporary
nature rather and not its definite term. Although the work was to end at a
specified time, there was no suggestion that the employer could not terminate
on reasonable notice.

[29]      I am satisfied that had the plaintiff communicated
to the defendant his assumption or understanding that the offer was for a
fixed-term employment contract, the defendant would have insisted on a
mechanism for termination of the contract on reasonable notice within that
period of time.

[30]      I conclude that the
defendant was entitled to terminate the plaintiff on reasonable notice.

[10]

The judge held that the reasonable notice period for termination in the
circumstances was one week and awarded the plaintiff damages in the amount of
$1,426. After judgment was given, the judge was advised that on April 3, 2009,
five days before the hearing of the summary trial, the defendant had delivered
to the plaintiff an offer to settle in the amount of $5,000. After considering
submissions as to whether the defendant was entitled to an award of double
costs from the date of the offer, the judge declined to award double costs but
awarded the defendant its costs of the entire proceeding.

[11]

On appeal, the plaintiff says it is unclear whether the judge found that
there was a contract of definite duration containing a term that the contract
could be terminated by giving reasonable notice, or a contract of indefinite
duration. The plaintiff says that no provision for early termination can be
properly implied in a definite term contract and that a finding of a contract
of indefinite duration did not accord with the evidence.

[12]

In my opinion, there is no uncertainty with respect to the conclusion of
the trial judge. On my reading of the reasons for judgement as a whole, the
judge found that the contract of employment was for an indefinite period and
that it was not an express term of the contract that the defendant could not
terminate on reasonable notice. As with all employment contracts of indefinite
duration that do not contain an express term to the contrary, the result was
that there was an implied term in the plaintiffs employment contract that it
could be terminated by either party upon the giving of reasonable notice of
termination.

[13]

The issue, then, is whether this Court should interfere with the judges
finding that the contract was one of indefinite duration. This was largely a
factual finding, although it could possibly be categorized as a finding on a
question of mixed fact and law.

[14]

In
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, the
Supreme Court of Canada thoroughly canvassed the standards of review applicable
to appellate courts reviewing decisions of trial judges. The Court held that deference
should be given to trial judges in respect of findings of fact and findings of
mixed fact and law unless there was a palpable and overriding error or, in the
case of a finding of mixed fact and law, unless the judge made an extricable
error in principle.

[15]

It has not been demonstrated, in my view, that the judge in this case
made a palpable error in a finding of fact. Although the opening sentence of
the confirmatory e-mail was some evidence in support of a finding of a contract
with definite duration, it was not conclusive, and it was open to the judge on
the whole of the evidence to find that the contract was for an indefinite
duration but was not to extend past July 30, 2009.

[16]

The evidence before the judge included the affidavit of the defendants
office manager that she did not intend to employ the plaintiff for a fixed term
and that she would have refused to hire the plaintiff if his employment was
required to continue until July 30, 2009. The judge also had before her the
evidence of the plaintiff on his examination for discovery that he was never
told that his employment would be guaranteed to July 30, 2009 and that he did
not remember whether he was told that his employment would end on July 30, 2009.
It is my view that the judges finding was reasonably supported by the evidence
before her.

[17]

Nor, in my opinion, did the trial judge make an extricable error in
principle. There is no principle of law that a person hired as a replacement
for an employee on temporary leave has entered into an employment contract of
definite duration. Each case turns on its facts. The judge did not err, in my
view, when she held that the plaintiff bore the onus of establishing that the
employment contract was for a definite term: see
Herold v. Marathon
Developments Inc.
, [1999] B.C.J. No. 878 at para. 6 (S.C. Chambers).

[18]

In the alternative, if the employment contract was for an indefinite
term, the plaintiff says that one weeks notice of termination of his
employment contract was inadequate. I am not persuaded that the judge erred in
this regard.

[19]

The plaintiff had been working for the defendant for approximately three
weeks at the time of his termination. The employment was of a temporary nature
that was arranged by a temp agency. I agree with the view of Mr. Justice
Ewaschuk, expressed in
Hedeluis v. Ian Martin Associates Ltd.
, [1984]
O.J. No. 861, 4 C.C.E.L. 9 (Ont. High Ct. Jus.), that notice periods in respect
of temporary assignment employees will be less than the notice periods to which
permanent employees are entitled. Although the notice period of one week was
relatively short, it is my view that it was adequate in the circumstances of
this case.

[20]

Finally, the plaintiff says the judge erred by awarding the defendant
the costs of the entire proceeding as a result of the settlement offer. In my
view, the plaintiff has a valid point on this issue. While Rule 37B(4) of the
Rules
of Court
in effect at the time stated that the court may consider an offer
to settle when exercising its discretion in relation to costs, that discretion
was constrained by the options contained in Rule 37B(5), which read as follows
at the relevant time:

(5)  In a proceeding in which an offer to settle has
been made, the court may do one or both of the following:

(a) deprive a party, in whole
or in part, of any or all of the costs, including any or all of the
disbursements, to which the party would otherwise be entitled in respect of the
steps taken in the proceeding after the date of delivery of the offer to
settle;

(b) award double costs of all or some of the steps
taken in the proceeding after the date of delivery of the offer to settle.

[21]

These options did not include the deprivation of costs to which a
plaintiff, who has obtained a judgment in more than a nominal amount (albeit
less than the amount of the settlement offer), is entitled in respect of steps
taken in the proceeding prior to the delivery of the settlement offer. Under
Rule 57(9) of the
Rules of Court
, costs were to follow the event unless
the court otherwise ordered, and there must have been a principled basis for a
contrary order. The judge did not exercise a discretion under Rule 57(15) to
award costs in relation to a particular issue, and there was no other
principled basis for depriving the plaintiff of party and party costs in
respect of steps taken prior to the delivery of the settlement offer. In my
opinion, the judge erred in depriving the plaintiff of those costs, and in awarding
the defendant its costs in respect of steps taken prior to the delivery of the
settlement offer.

[22]

In the result, I would allow the appeal to the limited extent of setting
aside the judges order of costs and replacing it with an order awarding costs
of the steps taken in the action up to April 3, 2009 to the plaintiff and
awarding costs of the steps taken thereafter to the defendant. I would
otherwise dismiss the appeal. In view of the plaintiffs limited success on
this appeal, I would order that each party bear their own costs of the appeal.

[23]

HALL J.A.
: I agree.

[24]

LEVINE J.A.
: I agree.

[25]

HALL J.A.
: This appeal is allowed in part as provided for in the
reasons of Mr. Justice Tysoe.

The Honourable Mr. Justice Tysoe


