



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Fisher 
          v. Lakeland Mills Ltd.,







2008 
          BCCA 42



Date: 20080124

Docket: CA032674

Between:

Kathleen 
    Fisher

Appellant

(
Plaintiff
)

And

Lakeland 
    Mills Ltd.

Respondent

(
Defendant
)




Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Madam Justice Levine




The 
          Honourable Mr. Justice Chiasson



Oral Reasons for Judgment




J.W. 
          Craddock


Counsel for the Appellant




S.B. 
          Margolis


Counsel for the Respondent




Place 
          and Date:


Vancouver, British Columbia




24 January 2008



[1]

CHIASSON, J.A.
: This is an appeal and cross-appeal arising out of a 
    wrongful dismissal claim brought by Ms. Fisher against Lakeland Mills.  At 
    trial, Mr. Justice Crawford held Ms. Fisher had been dismissed constructively 
    and he awarded her 10 months pay in lieu of notice, a $2,000 bonus for 2003 
    and 10 months insurance premiums.  He refused to award additional damages 
    for misconduct based on
Wallace v. United Grain Growers Ltd.
. 
    [1997] 3 S.C.R. 701.  Crawford J.s reasons for judgment are indexed as 2005 
    BCSC 64.

[2]

Ms. Fisher contends the notice period was not long enough and that 
    additional damages should have been awarded.  Lakeland Mills submits Ms. Fisher 
    was not dismissed constructively.

[3]

Lakeland Mills manufactures lumber primarily for export to the United 
    States.  Ms. Fisher began her employment with the company in 1985 when she 
    was 48 years old.  She started as a switchboard operator/receptionist and 
    over the years did some secretarial work and took on the responsibility for 
    accounts receivable and payable.

[4]

Ms. Fisher turned 65 in April 2002.  There is no compulsory retirement 
    age in the company, but visitors to the office often raised the topic of retirement 
    with Ms. Fisher.  This upset her and in April 2003 she spoke after hours with 
    the company president, Mr. Andersen.  He assured her that there was no concern 
    and she could stay with the company as long as she wanted to do so.

[5]

In July 2003, a staff member who provided back-up for the office staff 
    resigned.  This prompted Ms. Horning, the office manager, to send a memorandum 
    to Mr. Andersen in which she expressed concern with the ability of the existing 
    staff to carry the workload without considerable disruption: for example, 
    no regular holiday or emergency coverage and an inability to have more than 
    one person away at the same time.  She stated that Ms. Fisher would have to 
    be trained to cover the shipping duties of another employee in the instances 
    that I have other pressing [deadlines] to meet; and Im not sure she is capable 
    of doing this.  This referred to the fact the job required computer skills.  
    Ms. Horning added:

Third 
    this position is not really full time at this point.  Should Kay [Fisher] 
    give a retirement date, we could plan for a full time position.  Unfortunately, 
    the multi-tasking that is required usually has conflicting requirements with 
    existing staff schedules so we cant download onto existing staff.

To 
    conclude, I am not sure how to post this vacancy.  We almost need a part-time 
    possibly full-time flexible, multi-tasking person that is keen enough to learn 
    payroll, shipping, purchasing/receiving, accounts payable, accounts receivable, 
    contract logging, etc.  I am going to talk to my staff to see what responsibilities 
    they could take on full time but again we will be left with no coverage.

[6]

After meeting with the office staff, Ms. Horning wrote again to Mr. 
    Andersen stating:

Further 
    to my memo of July 28
th
, I have since spoken with my office staff 
    to get their ideas on whether we need another person or not.  We have come 
    to the conclusion that with utilization of Annette, we can cover off the extra 
    things Lisa did.  I recommend we try this for now and if it becomes unmanageable, 
    we will look at hiring an extra part time person who is flexible with hours.

Annette 
    has been asking for extra duties for some time and is more than willing to 
    take on additional responsibilities.  Brian has approved this.

[7]

Steps were taken to train Ms. Fisher, but she found the task difficult 
    and was not comfortable doing it.  When Ms. Horning returned from a brief 
    holiday, she was informed Ms. Fisher was not doing well and she reported this 
    to Mr. Andersen, indicating if Ms. Fisher was not able to do the backup shipping 
    dutiesshe would need to look at alternatives (Reasons for Judgment, para. 
    20).

[8]

On August 25, 2003, Ms. Horning met with Ms. Fisher who said the training 
    was proceeding well.  Ms. Horning stated the training would continue and talked 
    to Ms. Fisher about retiring, stating if she were to retire soon, the company 
    could muddle along, but if it were to be later, the company needed to hire 
    a backup employee who would need to pick up some of Ms. Fishers duties, perhaps 
    the accounts payable as the new employee could not sit idle (para. 21).

[9]

The trial judge described Ms. Fishers assessment of the situation 
    in para. 26:

[] she felt she was being given no choice, that either 
    she had to learn the additional duties as backup shipping clerk, orthe company 
    would take steps to hire a new person who would take over part of her work, 
    particularly accounts receivable and accounts payable.

[10]

Ms. Fisher again went to Mr. Andersen.  She told him that although 
    she did not want to do so, she felt she had to retire because she could not 
    do the shipping relief.  In para. 30 the judge quoted from the examination 
    for discovery of Mr. Andersen:

Q         
    And the reason for this was because Kay felt that Annie Horning wanted to 
    get rid of her.  Did she say that?

A          
    She said that she felt that Annie was trying to force her out because she 
    couldnt do her job.

[11]

Mr. Andersen did nothing to disabuse Ms. Fisher of her perception.

[12]

In para. 43 the trial judge set out the law of constructive dismissal 
    as stated by the Supreme Court of Canada in
Farber v. Royal Trust Co.
, 
    [1997] 1 S.C.R. 846:

[33] [] it has been established in a number of Canadian 
    common law decisions that where an employer unilaterally makes a fundamental 
    or substantial change to an employees contract of employment  a change that 
    violates the contracts 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.  The employee can 
    then claim damages from the employer in lieu of reasonable notice.

[13]

The judge noted that the process began innocently with a suggested 
    reorganization of staff, but it progressed to the point where a significant 
    change to Ms. Fishers employment occurred.  He said in paras. 57 and 58:

[] Ms. Fisher had been faced with unilateral changes 
    of a substantial kind to her employment.  She stated that she felt she had 
    been forced to retire and did not want to.

58 Mr. Andersen did not perceive the possible solution, 
    namely to assure her she could continue in her old position. []

[14]

The judge concluded that Ms. Fisher had been dismissed constructively. 
     In my view, he was entitled to reach that conclusion.

[15]

The company contends that the judge erred by applying a subjective 
    rather than an objective test to determine whether there had been a unilateral 
    and fundamental change to Ms. Fishers employment contract.  It asserts no 
    change was implemented and Ms. Fishers belief that a change had occurred 
    is not relevant.

[16]

The company relies on
Orth v. MacDonald Dettwiler & Associates 
    Ltd.
, (1986), 8 B.C.L.R. (2d) 1 (C.A.), 16 C.C.E.L. 41 and
Cayen 
    v. Woodwards Stores
(1973), 75 B.C.L.R. (2d) 110 (C.A.), 45 C.C.E.L. 
    264, 100 D.L.R. (4
th
) 294.  Those cases stand for the proposition 
    that the test for determining whether a change is fundamental is objective.  
    In this case, it does not appear to be in dispute that the addition of shipping 
    work and the deletion of other duties would constitute a fundamental change 
    in Ms. Fishers employment contract.  In its factum the company says: [i]f 
    the proposed change had, in fact, been imposed, Fisher might have been justified 
    in making the election she did.  In my view, the judge had ample evidence 
    on which to conclude objectively that the changes were fundamental.

[17]

Mr. Andersens silence was an affirmation that Ms. Fisher was obliged 
    to take on the shipping duties or leave.  Those duties represented a significant 
    change in her employment that the company was not entitled to impose unilaterally.  
    There was evidence to support the judges conclusion and I see no error in 
    principle which would allow this Court to interfere.

[18]

The parties provided authorities to the judge and to this Court addressing 
    the range of notice that would be appropriate in this case.  The judge stated 
    the range was six to 18 months (para. 65).  The appellant says the actual 
    range in the cases provided to the judge was up to 20 months.

[19]

In para. 63, the judge referred to
Ansari v. British Columbia 
    Hydro and Power Authority
(1986), 2 B.C.L.R. (2d) 33, affd 55 B.C.L.R. 
    (2d) xxxiii (C.A.) in which at p. 37 McEachern C.J.S.C. quoted from
Bardal 
    v. Globe & Mail Ltd.
, [1960] O.W.N. 253, 24 D.L.R. (2d) 140 (H.C.):

There can 
    be no catalogue laid down as to what is reasonable notice in particular classes 
    of cases.  The reasonableness of the notice must be decided with reference 
    to each particular case, having regard to the character of the employment, 
    the length of service of the servant, the age of the servant and the availability 
    of similar employment, having regard to the experience, training and qualifications 
    of the servant.

[20]

In para. 64 the judge addressed Ms. Fishers circumstances:

Ms. Fisher had many years of service with the company, 
    she was 66, and intended to work for some time further.  Ms. Fisher did not 
    have management responsibilities but she was the face that greeted visitors 
    to the company and that is always an important position, and there was no 
    criticism of her basic front office capabilities.  Further, at her age it 
    is not easy to obtain similar or like employment.

As 
    noted, he determined she was entitled to 10 months notice.

[21]

Ms. Fisher relies on
Burry v. United Communications Inc
(1997), 46 B.C.L.R. (3d) 349 (C.A.), 34 C.C.E.L. (2d) 314 at para. 12, and 
    states this Court should increase the notice period because it clearly  fall[s] 
    outside the range of such awards and constitute[s] palpable error.  In her 
    factum, she contends she should have received between 16 to 20 months basic 
    notice, plus four months because she was assured employment (
Singh v. 
    British Columbia Hydro & Power Authority
2001 BCCA 695, 95 B.C.L.R. 
    (3d) 238, 12 C.C.E.L. (3d) 214 and one further month because she was misled 
    (
Wallace
).

[22]

The company reviewed the cases presented to this Court by Ms. Fisher 
    and asserts they either are distinguishable or support the 10 months ordered 
    by the trial judge.

[23]

As Ms. Fisher concedes in her factum, [f]inding other decisions of 
    this Court that are on all fours with this case is difficult.  In my view, 
    the judge applied the correct analytical framework and having considered the 
    cases presented by the parties, I am not satisfied his conclusion of 10 months 
    notice is clearly outside the appropriate range.

[24]

The judge did not address
Singh
in his reasons.  It likely 
    was not referred to him.

[25]

In my view, additional notice based on Mr. Andersens assurances to 
    Ms. Fisher is not warranted.  Mr. Singh had been induced to continue his employment 
    and had made an extra effort to return to work after an illness. Ms. Fisher 
    did not alter her situation in response to the assurance.   It merely reassured 
    her that she did not have to retire.

[26]

Ms. Fisher contends she is entitled to
Wallace
damages 
    because Mr. Andersen did not tell her she did not have to do the shipping 
    work to keep her job.
Wallace
damages address egregious conduct 
    by an employer in dismissing an employee.  The trial judge concluded a failure 
    to communicate between a sensitive employee, an office manager seeking to 
    plan ahead, and a kindly company presidentare not circumstances giving rise 
    to additional damages (para. 69).  I see no error in this conclusion.

[27]

I would dismiss the appeal and cross-appeal.

[28]

FINCH, C.J.B.C.
: I agree.

[29]

LEVINE, J.A.
: I agree.

[30]

FINCH, C.J.B.C.
: The appeal and cross-appeal are dismissed.

The Honourable 
    Mr. Justice Chiasson


