In Whiting v. Boys and Girls Club Services of Greater Victoria, 2011 BCSC 681 the Honourable Mr. Justice Masuhara of the British Columbia Supreme Court handed down a decision which contains some interesting analysis in the context of a wrongful dismissal action.
Facts: Ms. Whiting was 57 years old and had worked as a “Program Director” for Victoria’s Boys and Girls Club for 13 years when she was given only 8 weeks notice of termination, not for just cause, but because the defendant claiming it had funding problems. The plaintiff had begun working with a contract which contained a probationary term, and a clause permitting dismissal with minimum notice periods under the Employment Standards Act. She was unsuccessful in finding new work until 2 years after dismissal, though, in her effort to mitigate her damages, she had undertaken efforts to find new work and to upgrade her training.
The Court wrote:
[28] In general, employment contracts for an indefinite term have an implied term that it can be terminated by the provision of reasonable notice (or payment in lieu). The term can be rebutted by a specific notice provision with or more than the statutory minimum. See: Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986.
[29] The references and authorities provided by the plaintiff indicate that an employee who continues past the end date of a definite term contract is deemed to be employed for an indefinite term unless they are clear and unequivocal language that states the contrary. See for example: Howard A. Levitt, The Law of Dismissal in Canada, 3rd ed., looseleaf (Aurora, Ont.: Canada Law Book, 2010) at 8-67 to 8-68; Peter Barnacle, Roderick Wood, Geoffrey England & Innis Christie, Employment Law in Canada, 4th ed., looseleaf (Markham, Ont.: LexisNexis, 2005) at 12-5 and 12-6; Buckley v. The Students Union of St. Thomas University, Inc. 1992 CanLII 2704 (NB QB), 1992 CanLII 2704 at p. 5 (N.B.Q.B.); and Bohn v. Midwest Veterinary Purchasing Cooperative Ltd., 2009 MBQB 216 (CanLII), 2009 MBQB 216.
…
[31] … It should be noted that one cannot contract out of the minimum requirements set out in the Act: s. 4 of the Act; Shore v. Ladner Downs, [1997] B.C.J. No. 1013 (S.C.) at para. 15, aff’d [1998] B.C.J. No. 1045 (C.A.).
[32] New or additional consideration is required to support a variation of an existing agreement in the employment context: Francis v. Canadian Imperial Bank of Commerce (1993), O.R. (3d) 75. Continued employment is not consideration for a new term: Hobbs v. TDI Canada Ltd., (2004) 245 D.L.R. (4th) 43. See also Singh v. Empire Life Insurance Co., 2002 BCCA 452 (CanLII), 2002 BCCA 452.
[33] The meritorious and non-profit nature of an employer is not a valid consideration in terms of liability: Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534;Lewis v. Terrace Tourism Society, 2010 BCCA 346 (CanLII), 2010 BCCA 346; and Wright v. Chilliwack Community Services, 2000 BCSC 972 (CanLII), 2000 BCSC 972.
[34] Interruption in employment as compared to the whole length of the employment does not affect the calculation of the notice period: Statsny v. Dependable Turbines Ltd., 2009 BCSC 1648 (CanLII), 2009 BCSC 1648.
[35] In terms of mitigation, the burden is on the defendant to show that the plaintiff did not take reasonable steps to mitigate her damages. The defendant must establish that the plaintiff failed to make reasonable efforts to find alternate work and that such work could have been found had the plaintiff done so: Sifton v. Wheaton Pontiac Buick GMC (Nanaimo) Ltd., 2010 BCCA 541 (CanLII), 2010 BCCA 541 at para. 25.
Reasonable Notice
[46] Reasonable notice is determined by the circumstances of each particular case. The approach as set out in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.J) at p. 145 remains an important guide:
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.
[47] Equally applicable is Ansari v. British Columbia Hydro and Power Authority 1986 CanLII 1023 (BC SC), (1986), 2 B.C.L.R. (2d) 33 (S.C.), McEachern, C.J.S.C. (as he then was) identified the following non-exhaustive factors:
(a) responsibility of the employment function;
(b) age;
(c) length of service; and
(d) availability of equivalent alternative employment.
[48] The plaintiff submits that she should be entitled to 20 to 24 months notice with credit to the defendant of two months provided.
[49] Cases which the plaintiff submits are similar and support her position are: Orlando v. Vancouver Coastal Health Authority, 2005 BCSC 926 (CanLII), 2005 BCSC 926, Bachynski v. DC DiagnostiCare Inc., 2001 BCSC 36 (CanLII), 2001 BCSC 36; Jamieson v. Finning International Inc., 2009 BCSC 861 (CanLII), 2009 BCSC 861;Lyle v. Aluminex Extrusions Ltd., [1996] B.C.J. No. 203 (S.C.), and MacGillivray v. Telus Communications Ltd., 2004 BCSC 1394 (CanLII), 2004 BCSC 1394.
[50] Ms. Whiting was 57 years old when terminated and is now 60 years old. Her age poses greater challenges in finding employment. She held a supervisory position in which she oversaw in the order of twenty frontline programs. She has worked the entirety of her life in the social services field. Her tenure with the Club was approximately thirteen years. Her job search was at a time when opportunities in her field were limited.
[51] It took Ms. Whiting two years to find employment in her field but not in a supervisory role that she formerly held.
[52] The defendant acknowledged that if a period of reasonable notice was required, it did not take issue with the factors to be considered as submitted by the plaintiff.
The court found that 18 months notice was appropriate.
Mitigation
[54] The defendant takes the position that the plaintiff did not take reasonable steps to mitigate her damages.
[55] The defendant points to the following reasons supporting the plaintiff’s lack of reasonable mitigation:
(a) she did not start looking for a job until after the employer’s stated notice period expired, even though the defendant did not require her to work;
(b) she did not look for work in the most obvious market, Vancouver;
(c) she did not look for work in doing “front-line work”;
(d) she took retraining that was limited or of no applicability to her employment;
(e) she wanted to work with her husband “up-island” doing a different kind of work, possibly involving design.
[56] In my view, the defendant has not established a failure to mitigate. Rather, the evidence clearly supports the view that the plaintiff took reasonable steps. It was not unreasonable for Ms. Whiting to take some time to regroup following her termination. In regard to moving to Vancouver to pursue a position in social work, I agree with the view that it was impractical as her spouse worked on Vancouver Island, she owned a home on Vancouver Island, and her brother for whom she had care responsibilities was integrated into the community where they lived. Further, there was no evidence that Ms. Whiting could have obtained employment in Vancouver.
[57] In terms of the suggestion that Ms. Whiting could have taken up a new career path, the duty to mitigate relates to take steps to maintain her position in her industry, trade, or profession: Sifton at para. 25. Ms. Whiting should not be penalized for not embarking on an entirely new career path following dismissal in the circumstances of an employee who is 58 years old, whose education, training, and experience has been in the field of social services work. Though there are cases which support the decision of an employee to take up their own business. There was also no evidence that she could obtain meaningful employment in the other areas explored.
Summary: Aside from being a fairly straightforward case based on principles relevant to reasonable notice and mitigation, the case contains a useful analysis of the effect of termination clauses in a series of fixed term employment agreements, the requirement of consideration for an employer’s requirement that an employee agree to clauses during employment, and the basic principle that termination for lack of funding is no different for reasonable notice purposes than any other wrongful dismissal.