



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Giza v. Sechelt School Bus Service Ltd.,









2012 BCCA 18




Date: 20120113

Docket: CA039042

Between:

Raymond Giza

Appellant

(Plaintiff)

And

Sechelt School Bus
Service Ltd., Randy Gould

Respondents

(Defendants)




Before:



The Honourable Mr. Justice Hall





The Honourable Mr. Justice Mackenzie





The Honourable Mr. Justice Chiasson




On appeal from: 
Supreme Court of British Columbia, April 21, 2011
(
Giza v. Sechelt School Bus Service Ltd. and Gould
, 2011 BCSC 669,
Vancouver Docket No. S101387)




Appellant appearing in person









Counsel for the Respondent:



J.W. Rowe





Place and Date of Hearing:



Vancouver, British
  Columbia

November 2, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 13, 2012









Written Reasons by:





The Honourable Mr. Justice Chiasson





Concurred in by:





The Honourable Mr. Justice Hall
The Honourable Mr. Justice Mackenzie








Reasons for Judgment of the Honourable
Mr. Justice Chiasson:

Introduction

[1]

This appeal considers the legal effect of an employers termination of an
employees contract of employment with inadequate notice as well as the effect
of the employees failure to work during the notice period given.  Also
considered is whether this Courts decision in
Macaraeg v. E Care Contact Centers
Ltd.
, 2008 BCCA 182, 77 B.C.L.R. (4th) 205

extends to a claim for
unpaid holiday pay, requiring the appellant to pursue that claim under the
Employment
Standards Act
, R.S.B.C. 1996, c. 113

and not in a court action.

[2]

From September 2004 until September 2009, the appellant was employed as
a bus driver by the respondent Sechelt School Bus Service Ltd. (referred to
herein as the respondent).  On September 30, 2009, the respondent terminated the
appellants employment, providing him with approximately five weeks notice. 
The trial judge described the circumstances of the termination at para. 20 as
follows:

September 30, 2009 was the last workday in
September and was payday. Mr. Gould left a number of items clipped
together on the seat of the bus Mr. Giza was to drive. The items included
Mr. Gizas paycheque, a statement of the hours for which he was paid, and
a letter. The payment to Mr. Giza was based on $17.50 per hour. The letter
stated as follows:

This letter will serve as your official notice of
Termination of Employment with the Sechelt School Bus Service Ltd. as of
November 6, 2009. You will be given your final pay cheque that day and a
Record of Employment will follow within the prescribed period.

As required by the
Employment Standards Act
, Part B,
Termination of Employment, we are giving you just over 5 weeks notice as
compensation for your length of service. Your start date was September 28,
2004. Attached is the related excerpt from the
Act
for your reference.

Good luck in your future endeavors.

[3]

When the appellant had read the letter, he drove his bus back to the respondents
terminal and left work permanently.

[4]

The trial judge held that five weeks notice was inadequate, but that
the appellant repudiated his employment contract by failing to work after
notice was given and was not entitled to damages.

Background

[5]

In 2007, the respondent Randy Gould and his wife purchased the
respondent Sechelt School Bus Service Ltd.  They continued the existing
practice of not paying statutory holiday pay, in contravention of the
Employment
Standards Act
.

[6]

In late June 2009, Mr. Gould met with the appellant.  They do not agree
on what was said at this meeting.  The appellant asserts that the respondent
agreed to increase his wage rate by $1.00 per hour to $18.50 per hour, effective
in September 2009.  Mr. Gould contends that he agreed only to consider a wage
review in the autumn and that the parties discussed aspects of the appellants
behavior which Mr. Gould considered to be inappropriate.

[7]

In September, the appellant was assigned a different route, which
increased his working time in the afternoon by 30 minutes.  He wanted his bus
to leave the school at 3:15 p.m. in order to facilitate a connection.  School
administrators wanted the bus to leave at 3:25 p.m.  The appellant contends
that Mr. Gould agreed to a 3:15 p.m. departure.  Mr. Gould denies this.

[8]

The appellant spoke to school officials about the departure time.  Mr.
Gould felt this was inappropriate.  The respondent decided to terminate the
appellant, a decision which led to the September 30, 2009 letter.

[9]

The appellant claimed holiday pay in proceedings under the
Employment
Standards Act
which he subsequently withdrew.

[10]

This action was commenced on February 25, 2010.  The appellant alleged that
he was wrongfully dismissed.  The respondent denied that the appellant was
dismissed and asserted that he was terminated with notice.

The trial judgment

[11]

At para. 36 of her reasons, the judge quoted from this Courts decision
in
Zaraweh v. Hermon, Bunbury & Oke,
2001 BCCA 524, B.C.L.R. (3d)
223 at para. 14:

The common law provides that, in
cases of indefinite hiring without written contract establishing terms of
dismissal, an employer may terminate the employment without cause by giving
reasonable notice to an employee that the employment will terminate. During
this time the employee is required to work and to conduct himself or herself in
a fashion compatible with the employment relationship.

[12]

At para. 39, the judge had this to say:

In this case, the 5 weeks of
notice was not adequate. [The respondent] breached the employment contract by
giving Mr. Giza too little notice. The legal effect of giving inadequate
notice depends on all the facts.

[13]

The judge concluded that Mr. Gould had not intended to repudiate the
employment contact and that he mistakenly had believed that the statutory
notice period would suffice.  She held that the respondent did not in law
repudiate the employment agreement (para. 40).  The judge then turned to the
failure of the appellant to work during the notice period, stating at paras. 41
 42:

I quote now from the reasons for judgment of
Hutcheon J.A., writing for the Court of Appeal, in
Suleman v. B.C.
Research Council
(1990), 52 B.C.L.R. (2d) 138 at 142:

In other words, the contract of employment is not terminated
until the end of the notice period and during that period the employer has the
right to the services of the employee. It follows that the employee must remain
ready and willing to carry out the contract of service ...

Here, Mr. Giza left
immediately after receiving the termination notice. He did not return to work.
Unless [the respondent] constructively dismissed him, Mr. Giza repudiated
the employment agreement, or in other words, quit.

[14]

The judge then considered whether the respondents conduct amounted to a
constructive dismissal of the appellant, noting that the latters position was
that it would have been intolerable to continue to work for the respondent.

[15]

The judge observed at para. 46 that the fact the respondent gave notice
of termination does not establish constructive dismissal because the respondent
was entitled to give reasonable notice.

[16]

The judge accepted Mr. Goulds evidence about discussions with the
appellant, finding that Mr. Gould had raised complaints about the appellants
conduct and had agreed only to consider a raise in the autumn (paras. 12 and
48).  She rejected the argument for constructive dismissal and stated at para.
53:

Objectively, there is no reason
why Mr. Giza could not have continued to work through the period of
reasonable notice. Mr. Giza failed to do so, and as a result, quit his
employment before it ended. Therefore, he is not entitled to damages for
wrongful dismissal.

[17]

The judge then addressed the appellants claim for damages for manner of
dismissal.  She stated at para. 59:

The Record of Employment Form
completed by SSBS gives reason M as the reason for issuing the ROE. The
explanation of the code on the back of the form shows that M refers to
dismissal. There is nothing in the description of the codes on the back of
the form which distinguishes between dismissal for cause and dismissal by
giving working notice. This form does not establish any dishonesty by SSBS in
the manner of the dismissal.

[18]

The judge considered the appellants contention that Mr. Gould had falsely
told him that the school had agreed to his proposed earlier departure time in
order to create an incident which would give the respondent a basis for
dismissing him.  The judge preferred the evidence of Mr. Gould on this point. 
She stated that there may have been a misunderstanding about the departure time,
but that the appellant was not dismissed.  His employment was terminated with
notice.

[19]

The judge concluded at para. 62:

SSBS did not act unfairly or in
bad faith in connection with dismissing Mr. Giza.  As a result, Mr. Gizas
claim for such damages must be dismissed.

The claim for punitive damages also was dismissed.

[20]

The judge held that she could not order statutory holiday pay, citing this
Courts decision in
Macaraeg,
which held that rights conferred by the
Employment
Standards Act
can be enforced only through the mechanisms in that
Act
.

[21]

The judge dismissed the appellants case.  She awarded the defendant costs
in the amount of $500.00, being his out-of-pocket expenses for dealing with
this matter (para. 97).  This appears to be an award of costs in favour of Mr.
Gould only.  The entered order states simply, [c]osts to the Defendant.

Positions of the parties

[22]

The following are the errors of the trial judge alleged by the appellant
in his factum:

1.         The judge erred at [42] by ruling
that by declining to work the five week notice at termination, the plaintiff
had repudiated the contract, and thus had lost his right to sue  for reasonable
notice.

2.         The judge erred at [37] by
confusing the discharge provision under the Employment Standards Act regarding
the earned benefit owed to the plaintiff with the requirement to provide
reasonable notice at common law.

3.         The judge erred at [40] by ruling
that the five week notice was an honest misapprehension of the defendant to
provide reasonable notice at common law and accordingly, the defendant was
freed of this obligation.

4.         The judge erred at [45] by ruling
that only a fundamental change in the contract, amounting to constructive
dismissal, would free the plaintiff from responsibility of working the notice
period. A constructive dismissal occurs with any reduction in wages during a
notice period at termination. In addition, responsibility to work the notice
period must also take into account the non-tangible elements of the working
relationship  in this case the breach of trust by the defendant.

5.         The judge erred under the Charter
at [41] and [42] by ruling that there was an obligation on the plaintiff to
work the notice period. In a free society no one is required to work for
another against their will save a declaration of war or essential service by
statute.

6.         The judge erred at [75] by ruling
that rights in the Employment Standards Act can only be enforced through that
Act and not through a civil action.

7.         The judge misstated, ignored, and overlooked evidence and
failed to arrive at the truth of the matter.  In order to provide context,
these matters are specifically identified in part 3.

[23]

The respondents join issue with the appellants allegations.

Discussion

Effect of the termination
and the appellants failure to work thereafter

[24]

I begin by addressing a possible inconsistency in the judges reasons.  At
para. 39, she held that the notice given by the respondent was inadequate.  At
para. 46, she observed that the respondent was entitled to give reasonable
notice and that it gave
such
notice [emphasis added].

[25]

I do not think the perceived inconsistency is of consequence.  In my
view, the judge correctly concluded at para. 39 that the notice period was
inadequate.  She went on to consider whether there had been a constructive
dismissal and her comment in para. 46 was made in that context.  I interpret
her statement as merely confirming that an inadequate notice period does not
result automatically in constructive dismissal.

[26]

I do not agree with the judges conclusion at para. 53 that by failing
to work during the notice period, the appellant lost his entitlement to
reasonable notice or damages in lieu thereof.

[27]

This Court in
Zaraweh v. Hermon, Bunbury & Oke
made it clear
that an employee terminated with notice is required to work during the notice
period (para. 14.).  Saunders J.A. referred to this Courts decision in
Suleman
v. British Columbia Research Council
(1990), 52 B.C.L.R. (2d) 138, 24
A.C.W.S. (3d) 508, in which Mr. Justice Hutcheon observed at p. 141 that,
subject to conduct by the employer  amounting to constructive dismissal,

... the contract of employment is
not terminated until the end of the notice period and during that period the
employer has the right to the services of the employee.  It follows that the
employee must remain ready and willing to carry out the contract of service.

[28]

Whether the employers conduct amounts to constructive dismissal is a
question of fact.  In
Zaraweh,
Saunders J.A. observed at para. 31 that:

Provision of inadequate notice
may constitute repudiation of the contract.  Whether it does or not is a
question of fact, to be resolved on the evidence of the circumstances
accompanying the provision of the notice.

[29]

In the present case, the trial judge held that the respondents conduct
did not constitute constructive dismissal.  This Court must give deference to
that finding of fact.  In my view, the judges conclusion is amply supported by
the evidence.

[30]

Although the appellant challenges many of the judges conclusions, they
must be respected if there was evidence to support them.  The judge was
entitled to accept some, all or none of the testimony of the parties.  The fact
that she preferred testimony with which the appellant disagrees is not a basis
on which this Court may interfere.

[31]

The testimony of both the appellant and Mr. Gould established that they
had had discussions regarding the appellants conduct and attitude.

[32]

The appellant relied on a statement in an October 5, 2009 letter from
the respondent to the appellant that [d]ue to your termination of employment
on September 30, 2009, you were not given an increase in pay as showing that
there had been an agreement his pay would be increased (Appeal Record at p. 6). 
The letter was appended to the respondents statement of defence and as such
could be an admission against interest, subject to determining the meaning of
the comment and the weight to be given to it.

[33]

At the hearing of the appeal, we were informed that the October 5, 2009
letter was a draft and was not sent to the appellant.  Under cross-examination
at trial, Mr. Gould flatly denied agreeing to a pay raise, stating, I
wouldnt give anybody a raise that acted like you did.

[34]

There was no specific date by which Mr. Gould had agreed to consider an
increase in the appellants wage rate.  In context, I read the comment in the
October 5, 2009 letter as stating merely that consideration of a wage rate
increase became irrelevant or moot with the termination of the appellant.

[35]

As to the allegation that Mr. Gould showed the appellant a schedule with
a start time of 3:15 p.m., Mr. Gould testified that the schedule he had shown
the appellant was from a previous year and served merely to illustrate the
route and that on September 9, 2009 he had told the appellant that the
departure time was 3:25 p.m.

[36]

Mr. Gould purposely determined not to dismiss the appellant.  Under
cross-examination by the appellant, he testified that the decision to terminate
the appellant was based on an accumulation of problems, and that none of the
incidents on their own were cause for dismissal.  The triggering event was a
telephone call by Mr. Gould to the appellant at his home on the evening of
September 21 or 22, 2009 in which Mr. Gould instructed the appellant not to
leave at the school at 3:15 p.m., but to do so at 3:25 p.m.  The appellant
became argumentative.  This telephone conversation and the fact the appellant
had dealt directly with the school on the departure timing issue resulted in
the decision to terminate him.

[37]

Under cross-examination, Mr. Gould explained that he did not think
leaving the letter of termination in the bus for the appellant was harsh
because it was not an immediate termination, but working notice; he stated, I
expected you to continue and confirmed his belief that the appellant would
simply just carry on and finish working for [the respondent] during the
five-week notice period.  He denied that the respondent was attempting to avoid
severance pay, stating that we offered the five weeks 'cause we hoped you
[sic] take the five weeks and still work.  Immediately after deciding the
appellant should be terminated, Mr. Gould contacted the Employment Standards
Branch to ascertain what period of notice would be appropriate.

[38]

The respondent hired someone on a temporary basis during the notice
period.  This suggests it kept open the appellants opportunity to work.

[39]

In my view, it is clear that the respondent did not constructively
dismiss the appellant and that the appellant repudiated the employment contract
by failing to work during the notice period.  In classic terms, he evidenced an
intention not to be bound by the contract, but that did not deprive him of his
right to damages for the respondents breach of contract in giving him
inadequate notice.

[40]

In
Zaraweh
, Saunders J.A. stated at paras. 35 and 36 that

... the breach of contract by provision of inadequate notice
gave Ms. Zaraweh a cause of action for damages although it did not constitute a
repudiation ... .  The entitlement to sue did not die with Ms. Zarawehs
repudiation of the employment relationship.

...

... Ms. Zaraweh was entitled to ...
damages based on the difference between the notice provided ... and the period
of reasonable notice ... .

[41]

In
Hadcock v. Georgia Pacific Securities Corp.
,

2006 BCCA
536, 64 B.C.L.R. (4th) 308 at para. 48 this Court, relying on the Supreme Court
of Canadas decision in
Guarantee Co. of North America v. Garden Capital
Corp.
,

[1999] 3 S.C.R. 423, explained that although repudiation ends
the ongoing rights and obligations of parties under a contract, it does not
affect rights and obligations that have accrued.  In the present case, the
appellants right to damages in lieu of reasonable notice had accrued when he
was given inadequate notice.  His repudiation did not take away that right and
it did not take away the right of the respondent to the appellants services
during the period of notice given.

[42]

In summary:

1.       the respondent breached its
contract of employment by failing to give adequate notice of termination;

2.       the respondents conduct did
not amount to a constructive dismissal, that is, a repudiation by the
respondent of the employment relationship; it continued during the notice
period;

3.       the respondents  breach
gave the appellant a cause of action for damages in lieu of reasonable notice;

4.       the period of reasonable
notice for which damages could be recoverable is the period of reasonable
notice to which the appellant was entitled less the period of notice actually
given during which the appellant could have and should have worked and been
paid;

5.       the appellants failure to
work during the notice period was a repudiation that brought to an end the
employment relationship and the ongoing rights and obligations of the parties
under it;

6.       that repudiation did not take
away the appellants cause of action for damages in lieu of notice or the
respondents right to have the appellants services during the notice period
that was given because those rights had accrued before the repudiation.

Remedy

[43]

Although the trial judge held that the notice period given by the
respondent was inadequate, she did not determine what notice would have been
reasonable because she concluded that the appellant was not entitled to
damages.

[44]

I do not think it is in the interests of justice to remit this matter to
the trial court to determine the appropriate period of reasonable notice.  This
Court should do so.

[45]

The seminal enunciation of what length of notice is reasonable at
common law derives from
Bardal v. The Globe & Mail Ltd.
(1960), 24
D.K.R. (2d) 140 (Ont. H.C.J.) at 145, in which McRuer C.J. held that

[t]here 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.

This test was adopted by,
inter alia
, McEachern
C.J.S.C. in
Ansari v. B.C. Hydro

(1986), 2
B.C.L.R. (2d) 33
.

[46]

An examination of cases reasonably comparable to the present case
suggests that the appropriate range of notice is somewhere between three and 11
months.  There obviously is considerable variability.

[47]

At the time the contract of employment was terminated, the appellant was
61 years of age.  He had been employed by the respondent for approximately five
years.  He had worked previously as a professional forester, but the
availability of forestry work had diminished by the time he left this industry
and began working as a school bus driver.  The appellant has had little success
in obtaining alternative employment.

[48]

The appellant seeks nine months notice.  In my view, reasonable notice
in this case would have been six months.  For the purpose of calculating
damages, the period of actual notice during which the appellant could have
worked and been paid must be deducted.  I would calculate damages based on a
notice period of five months.

[49]

The trial judge held that the in the year prior to his termination the
appellant earned $1,938 per month.  In my view, the appellant is entitled to
$9,690 (5 x $1,938).

Punitive damages

[50]

The trial judge correctly stated the law applicable to an award of
punitive damages and found no basis on which such an award would be appropriate
in this case.  In part, this finding was based on her conclusion that there had
been no wrongful dismissal, contrary to the appellants position.

[51]

The judge carefully considered the evidence of the parties and preferred
that of Mr. Gould, as she was entitled to do.  I see no basis on which this
Court could interfere.

Holiday pay

[52]

I agree with the judge that this Courts decision in
Macaraeg
is
a complete answer to the appellants claim for statutory holiday pay.  In
Macaraeg
,
this Court concluded that the
Employment Standards Act
contained a
complete procedure for enforcing rights granted by that legislation.  In the
context of this case, holiday pay is such a right.

Costs

[53]

Rule 14-1 (10) of the
Rules of Court
states:

A plaintiff who recovers a sum
within the jurisdiction of the Provincial Court under the
Small Claims Act
is not entitled to costs, other than disbursements, unless the court finds that
there was sufficient reason for bringing the proceeding in the Supreme Court
and so orders.

(This rule is identical to the former Rule 57(10).)

[54]

The monetary jurisdiction of the Small Claims Court is for claims of $25,000
or less (
Small Claims Court Monetary Limit Regulation,
B.C. Reg.
179/2005).  In total, the appellant claimed $41,190, comprising $18,315 for
nine months pay in lieu of notice at $2,035 per month, $20,000 for punitive
damages and $2,875 for statutory holiday pay.

[55]

The per-month sum was based on a $1.00 per hour wage raise, which the
judge rejected.  I agree that the appellant is entitled to pay in lieu of
notice, but do not accept the appellants claimed duration.  I also have concluded
that as a matter of law, the period of notice the appellant was given must be
deducted from the time for which he is entitled to pay in lieu of notice.

[56]

The statutory holiday pay claim is not sustainable in light of this
Courts decision in
Macaraeg
.

[57]

Although the monetary amount advanced by the appellant in his statement
of claim exceeded the jurisdiction of the Small Claims Court, in my view, there
was not sufficient reason to bring these claims in the Supreme Court at the
time they were initiated.

[58]

In addition, I am mindful of the trial judges discretionary disposition
of costs in awarding the respondent out-of-pocket expenses only.  Exercising my
discretion, in my view, in the interests of justice an award of disbursements
only is a fair disposition in this matter, taking into account the monetary
award recovered and the mixed success of the parties on the components of the
appellants claim.

[59]

I would award the appellant his allowable disbursements in this Court
and in the Supreme Court against the respondent Sechelt School Bus Service Ltd.

Conclusion

[60]

I would allow this appeal, set aside the order dismissing the
appellants claim and awarding costs to the respondent and enter judgment in
favour of the appellant against the respondent Sechelt School Bus Service Ltd.
in the amount of $9,690.

[61]

The appellant is entitled to his allowable disbursements in this Court
and in the Supreme Court.

[62]

There is no basis in the evidence for judgment against Randy Gould
personally and I would dismiss the action against him without costs.  His participation
was required by the corporate defendant and was not increased by reasons of the
personal action against him.

The Honourable Mr. Justice Chiasson

I agree:

The
Honourable Mr. Justice Hall

I agree:

The Honourable Mr. Justice
Mackenzie


