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British Columbia Employer Advisor Keeping Employers Posted on Developments in Labour and Employment Law

Category Archives: Wrongful Dismissal

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BC Court of Appeal clarifies employee’s duty to mitigate and necessary deductions for “avoided”, and “avoidable”, loss

Posted in Employee Obligations, Litigation, Mitigation, Termination, Wrongful Dismissal

In Pakozdi v. B & B Heavy Civil Construction Ltd., 2018 BCCA 23, the British Columbia Court of Appeal addressed the treatment of replacement income in the calculation of damages for a wrongfully dismissed employee. The  Court of Appeal also overturned an award of eight months’ reasonable notice for an employee with only one year of service and considered a plaintiff’s entitlement to fringe benefits during the notice period.


Mr. Pakozdi was a bid estimator and construction professional who commenced employment with B & B Heavy Civil Construction Ltd. in early January 2014. During his employment, and with … Continue Reading

BC Supreme Court Awards Aggravated Damages In The Absence of Medical Evidence

Posted in Damages, Litigation, Termination, Wrongful Dismissal

In the wrongful dismissal case, Ensign v. Price’s Alarm Systems, 2017 BCSC 2137, the British Columbia Supreme Court made an aggravated damages award in the absence of any medical evidence of psychological distress arising from the termination of the Plaintiff’s employment. This is a departure from the approach the BC Courts have generally taken in the past.


The Plaintiff, Mr. Ensign, was a 63-year-old salesman. He worked for Price’s Alarm Systems (the “Employer”) for 12.5 years, having never signed an employment agreement.  The Employer terminated Mr. Ensign’s employment by providing him with two months’ working notice.  After … Continue Reading

Employee’s secret recording of meetings with management contributes to finding of just cause for dismissal

Posted in Discipline, Employee Obligations, Just Cause, Litigation, Termination, Wrongful Dismissal

A recent decision from the Manitoba Court of Queen’s Bench supports that an employee’s use of his work phone to secretly record meetings with management may support an employer’s decision to terminate for just cause.

In Hart v. Parrish & Heimbecker, Limited [Hart], the plaintiff, Mark Hart, sued his former employer for wrongful dismissal after he was terminated for cause following a series of employee complaints against him. In the course of the litigation, Mr. Hart tendered as evidence recordings of conversations he had had with the defendant’s management personnel in the course of the defendant’s investigation into … Continue Reading

British Columbia Supreme Court rules on reasonable notice when an employee is terminated before their first day of work

Posted in Employer Obligations, Litigation, Termination, Wrongful Dismissal

In Buchanan v. Introjunction Ltd., 2017 BCSC 1002, the Court considered a case where the employer terminated the plaintiff’s employment before he commenced work. The Court rejected employer’s argument that the probation period clause applied to limit its liability to provide notice of termination of employment. Despite the contractual termination provisions in the employment agreement, the Court awarded the plaintiff common law reasonable notice. It is important that employers take note of the legal principles in this case if they plan to retract an offer of employment.


On October 16, 2017, Colton Buchanan accepted an offer of employment … Continue Reading

Make Whole Remedies and Good Faith Crucial to Mitigation

Posted in Best Practices, Damages, Litigation, Termination, Wrongful Dismissal

A recent decision of the BC Court of Appeal provides a cautionary tale for BC employers seeking to remedy a potential wrongful dismissal.

In Fredrickson v. Newtech Dental Laboratory Inc.,  Leah Ann Fredrickson had worked for Newtech, a specialty dental laboratory, for about 8.5 years, when she took a leave of absence in connection with her husband’s illness and an accidental injury to her son. Newtech’s owner, Vince Ferbey, took issue with the manner in which Ms. Fredrickson took the leave and the effects on Newtech’s operations. When Ms. Fredrickson returned to work on July 20, 2011, Mr. Ferbey … Continue Reading

SCC Grants Leave to Appeal on Canada Labour Code Without Cause Dismissal

Posted in Litigation, Termination, Wrongful Dismissal

Our colleagues in Ontario recently posted here on the case of Wilson v. Atomic Energy of Canada Limited,where the Federal Court of Appeal held that non-unionized employees in the federal sector do not have a “right to a job” and that dismissal from employment on a without cause basis is not automatically an “unjust dismissal” under the Canada Labour Code. This was a welcome clarification in the law for federal employers, who had previously been faced with a line of authority from adjudicators which limited without-cause dismissals to very narrow circumstances.

The Supreme Court of Canada has granted Continue Reading

Delinquency Gone Viral: Addressing Employee Misconduct

Posted in Employee Obligations, Investigations, Just Cause, Termination, Wrongful Dismissal

The appeal (and risk) of social media is the speed of communication and the ease of wide-spread distribution by recipients. We have moved well past Andy Warhol’s 15 minutes of fame to an era of 15 seconds of fame. The pace at which a flippant remark or crass conduct can be recorded, broadcast, go viral, then be analyzed, blogged about and rehashed seems to be increasing exponentially. The risk to employees who are unfortunate enough to be identified or caught up in a social media frenzy appears to be on a similar upward trajectory.

The latest example of the race … Continue Reading

Maternity leave was no reason to reduce bonus

Posted in Damages, Employment Standards, Termination, Wrongful Dismissal

Employment agreement interpreted in light of statutory right to maternity leave

The recent decision of the B.C. Supreme Court in Sowden v. Manulife Canada Ltd. is noteworthy for its interpretation of a written agreement regarding bonus payments, and the court’s reluctance to allow an employer to use an employee’s maternity leave as a reason to reduce her bonus payment.

Janice Sowden was a regional marketing director for Manulife Canada Ltd. (“Manulife”). Her remuneration was made up of a base salary plus a variable bonus, calculated partly on her success in recruiting new financial advisors to work for Manulife. In essence, … Continue Reading

BC Supreme Court Declines to Defer to Baptist Church

Churches and other employers must be cautious when relying on internal procedures to dismiss individuals

Posted in Litigation, Termination, Wrongful Dismissal

The B.C. Supreme Court recently decided an application to hear a pastor’s wrongful dismissal claim, which may impact employers both inside and outside of ecclesiastical contexts.

In Kong v Vancouver Chinese Baptist Church, the Vancouver Chinese Baptist Church (“VCBC”) applied to have a claim for wrongful dismissal filed by its former Senior Pastor, the Reverend Alfred Yiu Chuen Kong (“Rev. Kong”), dismissed. Rev. Kong filed the underlying claim after he was dismissed by the VCBC following a long series of VCBC committee meetings and discussions to resolve internal strife involving Rev. Kong.

The VCBC applied to court to have … Continue Reading

Workplace Drug Dealing Provides After-Acquired Cause for Termination

Employer had just cause based on evidence discovered after termination

Posted in Investigations, Just Cause, Termination, Wrongful Dismissal

In most cases, employees who commit misconduct will face the consequences of their actions during their employment, in the form of discipline or even termination for just cause. But, what if the employer only learns of an employee’s misconduct after the employee is dismissed without cause? What recourse does the employer have?

The British Columbia Court of Appeal’s ruling in Van den Boogaard v. Vancouver Pile Driving Ltd affirms that employers can rely on misconduct discovered after an employee’s dismissal to establish “after-acquired” just cause.

Mr. Van den Boogaard was a project manager for Vancouver Pile Driving, a marine contracting … Continue Reading

What Do Your Policies Say About Termination?

… and does it matter?

Posted in Damages, Employment Standards, Termination, US vs.Canadian Employment Law, Wrongful Dismissal

Many employers have policies about termination, and specifically about what an employee is entitled to if terminated without cause.  It is a good idea to try to manage the cost of terminations, but it needs to be done properly to be effective.

Oliver v. Sure Grip Controls is a recent case where a termination policy was reviewed.  The employer tried to limit its liability by reference to the policy set out in the employee handbook.  The employer had gone to the trouble of having the handbook reviewed and signed by the employee, but the handbook included this underlined statement:

I Continue Reading

No Just Cause for Termination

Problems with clarity, training, consistency and investigation

Posted in Employee Obligations, Just Cause, Litigation, Termination, Wrongful Dismissal

A recent decision of the BC Supreme Court went in favour of an employee who was terminated by her employer for alleged conflict of interest and breaches of policy.  The court determined that there was a lack of clarity, training and consistency in its policies and procedures, and a flawed investigation:  Ogden v. CIBC.

Ms. Ogden immigrated to Canada in 2000.  She learned English and earned a business degree from Royal Roads University.  She went to work with CIBC and built up a portfolio of $233 million working with Chinese clients. She was consistently a top performer.

In the … Continue Reading

Pension Benefits Not Deductible from Wrongful Dismissal Damages

More like private insurance

Posted in Benefits, Compensation, Pensions, Damages, Litigation, Termination, Wrongful Dismissal

The Supreme Court of Canada has decided that pension benefits received by a dismissed employee are not to be deducted from an award of wrongful dismissal damages.  The decision in IBM Canada v. Waterman affirms an earlier ruling of the BC Court of Appeal which we discussed here.

Mr. Waterman was a long-service employee who was terminated with two months’ notice when he was 65.  He rejected a severance offer that would have provided him some wages and some pension.  He sued for wrongful dismissal but in the meantime began to get payments under the defined benefit pension plan … Continue Reading

No Double Recovery by Employee

Employment Standards Damages Deducted from Wrongful Dismissal Damages

Posted in Damages, Employment Standards, Termination, Wrongful Dismissal

A British Columbia employer has won a case to avoid double recovery of Employment Standards and wrongful dismissal damages.  The decision in Roy v. Metasoft Systems Inc. is another piece of good news for employers to go with our recent post about the BC Human Rights Tribunal helping to discourage forum hopping.

Ms. Roy was a software sales associate.  She complained to her employer about not getting all the commissions she thought she had earned.  She threatened to file a complaint for unpaid wages with the Employment Standards Branch.  The employment relationship went downhill from there and her employment was … Continue Reading

Duty to Mitigate is Alive and Well

Plaintiff should have pursued job opportunity

Posted in Damages, Employee Obligations, Litigation, Termination, Wrongful Dismissal

There was a job opportunity for the terminated employee.  He didn’t pursue it and he didn’t provide a reasonable excuse.  His claim for wrongful dismissal damages was denied.

Rod Koenig had been hired by Brandt Tractor in 1987 and was terminated 22 years later.  He was given 9.5 months of working notice in January 2009, finished work in October 2009 and didn’t start new employment until April 2010.

But in June 2009 he was approached by a former work colleague, Mr. Jones, about a comparable position.  Mr. Koenig expressed no interest and did not pursue the opportunity.  Mr. Jones considered … Continue Reading

Not Constructive Dismissal

Removal of Supervisory Duties Allowed

Posted in Constructive Dismissal, Employee Obligations, Litigation, Termination, Wrongful Dismissal

A BC employer has successfully defended a claim for constructive dismissal despite taking away supervisory duties and moving the employee from an office to a cubicle.  The Meyers v. Chevron Canada Limited case  is a welcome change from earlier cases we have discussed here (changing a bonus) and here (abusive workplace environment).

Meyers worked for Chevron in a number of positions since 1994. Some of the job changes were considered promotions while others were lateral moves, but he agreed to all of them. The last move was to a Business Analyst position when his former department was eliminated. He no … Continue Reading

More Punitive Damages

Posted in Damages, Just Cause, Litigation, Termination, Wrongful Dismissal

Another BC employer has been hit with punitive damages.  There have been cases where flawed investigations have led to punitive damages (see the Vernon case in BC, and Home Hardware in Alberta), and there have been jury awards for bad employer conduct (see Babine Forest Products in BC, and Wal-Mart in Ontario).  Now another BC Supreme Court case – Kelly v. Norsemont Mining Inc. – has awarded punitive damages for the conduct of the employer.

Kelly sued and complained he was dismissed for insisting the company adhere to securities regulations.  The employer vigorously defended.  Not only did it say … Continue Reading

Terminating Employees on Disability

Truly Shark Infested Waters

Posted in Discipline, Just Cause, Termination, Wrongful Dismissal

The media is full of the story of a couple from Wales who were fired from their jobs after the husband helped save children from a shark attack.

It seems that the husband’s heroics generated a media stir at the time, which led to the employer back in Wales finding out the couple were vacationing in Australia when they were supposed to be on disability leave.  The employer decided to terminate their employment, thus generating the current media storm.

It is possible, even likely, that there is more to the story than is currently being told, but the employer’s reported … Continue Reading

“Workplace Investigations – Part 3”

Posted in Discipline, Discrimination, Human Rights, Investigations, Just Cause, Termination, Workers Compensation, Wrongful Dismissal

In earlier posts, here and here, we discussed some legal issues that arise in workplace investigations. In this post, we will discuss some of the privacy issues that can arise.

The investigator is often asked by nervous employees whether their identity and the information they give will be kept confidential. This cannot be guaranteed.  Employees being interviewed should be made to understand that the information they give may be disclosed, in whole or in part, to other parties in an investigation as necessary.

It may not be necessary to share the identity of witnesses with other parties when, for … Continue Reading

Workplace Investigations – Part 2

Posted in Damages, Discipline, Human Rights, Investigations, Just Cause, Termination, Workers Compensation, Wrongful Dismissal

In an earlier post, we discussed when employers may wish to conduct workplace investigations.  In this post we’ll discuss who should conduct the investigation.

Being lawyers, we usually have a quick answer to this:  legal counsel. We recognize, however, that clients don’t have unlimited funds.  So practically speaking, each situation will have to be assessed on its own facts.

In situations where a simple fact finding determination and assessment of credibility are all that is needed, the skilled manager can suffice, with counsel in the background to point them in the right direction and give legal advice based on any … Continue Reading

Workplace Investigations – Part 1

Posted in Damages, Investigations, Just Cause, Termination, Wrongful Dismissal

With the complexity of workplace law and issues, employers are subject to an increasing number of workplace obligations.  When a workplace incident arises it’s often required, or at least advisable, that an employer conduct a prompt and thorough investigation.

In this and subsequent posts, we will review some key legal issues that arise in conducting or directing a workplace investigation, including privacy, confidentiality, and the issue of legal privilege.

We will also discuss who should conduct the investigation, including when to use counsel, and when investigating counsel should be different than an employer’s usual employment counsel.

Finally, we’ll discuss some … Continue Reading

Wal-Mart Ordered to Pay Over 1 Million in Damages

Posted in Damages, Discrimination, Just Cause, Litigation, Termination, Wrongful Dismissal

On October 10, 2012, a jury awarded a former Wal-Mart employee over $1.4 million dollars in damages.  The jury found that the employee was constructively dismissed due to an abusive work environment at the Windsor Wal-Mart store.  This is the largest such award in Canadian history and, as expected, will be appealed by Wal-Mart.

Summary of the Claim

Although the case is not publicly available, we can glean some facts from media reports and the Statement of Claim.

Meredith Boucher was an assistant manager at a Wal-Mart in Windsor, Ontario with nine years service. She alleged abuse by the store … Continue Reading

Collective Agreement Severance Not Payable

Only accrued rights survive termination of the agreement

Posted in Employment Standards, Labour Relations, Termination, Unions, Wrongful Dismissal

Employees terminated after the expiry of their collective agreement are not entitled to severance pay.  That is the bottom line, and the end of the line, for the former employees of Mercury Graphics since November 8, 2012 when the Supreme Court of Canada refused to hear their appeal.  The Saskatchewan Court of Appeal decision stands and provides some useful guidance for employers throughout Canada.

It is important to note that the result could be different under different collective agreement language.  Some things to consider are highlighted below.

In the case of Mercury Graphics, the collective agreement term ended and the … Continue Reading

Month in Review

Posted in Accommodation, Age, Benefits, Compensation, Pensions, Damages, Discipline, Discrimination, Employee Obligations, Employment Standards, Family Status, Human Capital, Human Rights, Immigration, Investigations, Just Cause, Labour Relations, Litigation, Murphy's Laws of HR, Privacy, Recruiting, Termination, Unions, US vs.Canadian Employment Law, Wage and Hours, Workers Compensation, Wrongful Dismissal

The bloggers of BC Employer Advisor issued our first Month in Review to summarize our most recent posts.

Visit the summary here.

 … Continue Reading