Forsberg v. Capilano Sr. Citizens Housing Date:, 2012 BCPC 158

Citation: Forsberg v. Capilano Sr. Citizens Housing Date: 20120525 2012 BCPC 0158 File No: 10-22022 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DALE FORSBERG CLAIMANT AND: CAPILANO SENIOR CITIZENS HOUSING SOCIETY DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Appearing in person: Mr. D. Forsberg Appearing for the Defendant: W. Jay Havelaar Place of Hearing: North Vancouver , B.C. Date of Hearing: March 22, 2012 Submissions Filed: April 13 and 15, 2012 Date of Judgment: May 25, 2012

[ 1 ] The claimant Dale Forsberg seeks damages for wrongful dismissal, reimbursement for renovation work, and payment of a bonus from the defendant society, for whom he acted as building manager at a senior’s apartment building in West Vancouver. [ 2 ] The defendant takes the position that it does not owe the claimant any money. The onus is on the claimant to establish that it does. I will consider in sequence each of the issues raised by the claimant. The dismissal [ 3 ] Mr.

Forsberg was hired by the defendant (“the Society”) on August 1, 2009 to be the building manager of the Capilano Tower Building at 1475 Esquimalt Avenue in West Vancouver. He continued in that position until September 2, 2010. He earned a salary of $48,000 under a written contract which included maintenance and supervisory duties. [ 4 ] The contract also included a requirement that Mr. Forsberg maintain a courteous relationship with the residents of the building, “bearing in mind the older person’s need for security, independence, and self esteem.” Mr.

Forsberg’s duties included being on call outside business hours from Monday to Friday. There was a separate weekend manager. [ 5 ] In early 2010 or so, Mr. Forsberg undertook some renovation work on the suites in the building. He also made some innovative changes to some of the Society’s contracts. Both of these initiatives resulted in considerable savings to the Society. [ 6 ] There were some problems however with Mr. Forsberg’s relationship with the building tenants.

The first documentation of these problems was contained in the minutes of a Society Board of Directors’ meeting dated March 4, 2010. [ 7 ] The minutes state: [A member] reviewed the Building Manager’s job description and highlighted some areas that need attention. His behaviour and rudeness over the past few months have been unacceptable and David will be drafting a letter to him to address these issues. [ 8 ] The reference to “David” is to David Torrance, who was a member of the Board at the time and appeared as the Society’s representative at the trial. [ 9 ] The Board’s April 12, 2010 minutes state that Mr.

Torrance reviewed with the Directors a letter to Mr. Forsberg prepared by a lawyer and that Mr. Torrance was going to meet with Forsberg to discuss some of the performance issues. In the same minutes there is a discussion, detailed below, about Mr. Forsberg’s good performance in respect of the building development and maintenance. [ 10 ] Mr. Torrance met with Mr. Forsberg and provided him with a letter of expectations dated April 9, 2010. The letter reiterated the need for courtesy with the residents, and asked Mr.

Forsberg to prioritize his relationship with the residents as effectively as he did the maintenance of the building. Mr. Forsberg and Mr. Torrance both signed the letter and dated it May 18, 2010. [ 11 ] The Directors’ minutes of that same date, May 18, 2010, state, under the heading, “Matters arising from previous meeting” that Mr. Torrance “has postponed his discussion with Dale Forsberg until after the hearing of the dispute resolution hearing.

He will now set up a meeting and at the same time discuss his request for a salary increase.” [ 12 ] The reference to the dispute resolution hearing is a Residential Tenancy Branch complaint raised by the “tenant association” at the building, which appears from the same minutes to have been dismissed by the Branch. It is mentioned in the April minutes but the nature of it is not discussed. The evidence does not suggest or establish that it was related to complaints against Mr. Forsberg. [ 13 ] From the date on the letter of expectations, it appears that the discussion between Mr. Forsberg and Mr.

Torrance occurred later in the day after the May 18 Board meeting. [ 14 ] It is Mr. Forsberg’s position that after the letter, he received no further complaints or notice of any deficiencies in his performance until he was unexpectedly terminated on September 2, 2010. He was required to leave his office immediately and given two weeks to vacate his suite. [ 15 ] Mr. Torrance testified that in addition to the problem with rudeness documented in the minutes, Mr. Forsberg made some changes to the heating system and parking spots and a bulk purchase of flooring, all without authority. Mr.

Torrance received some complaints from the tenants about the heating and parking issue. [ 16 ] Mr. Torrance believed that he gave Mr. Forsberg the “May 18” letter before it was signed, but the evidence does not support that. Mr. Torrance says that at the time he gave him the letter he told Mr. Forsberg that he had to improve in order to continue in his position and Mr. Forsberg said he would comply with the letter. [ 17 ] Mr. Torrance says Mr. Forsberg complied with the letter for a couple of weeks but then resorted to the same old pattern of failing to prioritize the tenants’ needs and requests.

He said it became apparent by July or August that they were back to where they had started. He said that when he received specific complaints he told Mr. Forsberg about them in detail and advised him they were not acceptable. He says the president also approached Mr. Forsberg and told him there were complaints from residents, things were not going well, and the tenants’ committee was getting militant.

[18] At about the same time, the Board became aware of an incident with a delivery driver, a Mr. Zacks, who wrote a letter to theBoard. Ms. Carter, the Society’s administrator, who wrote the minutes of the Directors’ meetings, testified that she saw Mr. Zacks’sletter at one of the meetings. She was aware that Mr. Forsberg was fired, but said she did not recall if that was the reason. She believed itwas an accumulation of things and that the Zacks letter was more of a final straw. Ms. Carter said she understood that Mr. Zacks hadbeen asked by someone to write the letter to the Board. [19] In the letter, Mr.

Zacks complains that the building manager was rude to him over the intercom when he tried to delivergroceries to a tenant. The minutes from August 26, 2010 state: A letter was received from a delivery person complaining about the manager’s attitude and use of foul language. The Board made thedecision to terminate Dale Forsberg. David Torrance will be meeting with his lawyer as soon as possible to see if we have legal groundsto dismiss him for cause… [20] Mr. Torrance in his evidence said that the Board felt it had no choice but to terminate Mr. Forsberg.

While they believed theyhad cause, after taking legal advice, they decided to pay what they deemed to be a fair and generous amount of 3 months’ severance. Heand the president met with Mr. Forsberg on September 2, 2010, explained that they reluctantly had to terminate him, and gave him acheque for $12,000. They sat and waited while he cleaned out his office. They did not provide him with a termination letter. [21] Mr. Forsberg takes the position that the Zacks letter was procured in order to provide an excuse to terminate him. He says thatif anyone was rude to Mr. Zacks, it was the weekend manager, and not him.

Mr. Zacks did not testify but he provided a second letter atMr. Forsberg’s request which stated that he, Mr. Zacks, had never met Mr. Forsberg. [22] Mr. Forsberg’s theory about his dismissal is that one of the Board members was jealous of him making money on the suiterenovations, and procured the letter in order to discredit him. He suggested that the plumbing contract for the building or renovations hadgone to Mr. Torrance’s company or a company with which he was affiliated, Barclay Restorations, after he left. [23] Mr. Torrance denied any such motive for firing Mr. Forsberg.

He acknowledged that Barclay had a role in organizing some ofthe work after Forsberg left, and had sent in some invoices for sub-trades, but their primary function is in water damage restoration, andBarclay employees had never really done renovations in the building. He denied that another plumbing company, Keith Plumbing, wasin any way affiliated with Barclay and he did not believe they had done any work since Mr. Forsberg left. [24] Other than the Zacks letter, there were no problems with Mr.

Forsberg documented in the minutes after May 18, 2010, nor didhe receive anything in writing advising him that there were problems after the letter of expectations was signed. [25] In the circumstances, the defendant has rightly abandoned any claim that the dismissal was for cause. The only issue iswhether three months’ damages is sufficient. The defendant has cited a number of cases which support an award in the range of theamount it paid to Mr. Forsberg: See for instance, Ceci v. Patina Salons Ltd., 2003 BCPC 172; Dodich v. Leisure Care Canada, 2006BCSC 93. [26] Mr.

Forsberg argued that he should receive a higher amount because of the manner in which he was dismissed. He reliesupon the factors outlined by Bardal v. Globe and Mail Ltd. (1960), (ON SC), 24 D.L.R. (2d) 140 (Ont.H.C.): thecharacter of employment; the length of service; the age of the employee; the availability of similar employment; and the experience,qualifications and training of the employee. He also submits that because the termination was done on a ruse through the use of theZacks letter, he should be given punitive or compensatory damages. [27] In my view, the principles of Bardal v.

The Globe and Mail, the case law cited by the defendant, and many other casesdealing with employment at a similar level amply support a conclusion that the termination payment of $12,000 in this case wasreasonable and generous. [28] In relation to the issue of compensatory damages, the defendant relies on the recent case of Beggs v.

Westport Foods Ltd.,2011 BCCA 76, in which the Court of Appeal cited conduct such as “attacking the employee’s reputation by declarations made at thetime of dismissal [or] misrepresentation regarding the reason for the decision” as potentially warranting additional damages. [29] While Mr. Forsberg believes he was dismissed on a ruse, the evidence does not establish that he was given a false reason forthe dismissal, or that his reputation was attacked.

He says himself he was given no reason, and indeed, there is no obligation on theemployer to give any reason when it provides damages in lieu of notice. [30] It does not appear that Mr. Forsberg was aware of the Zacks letter until after his dismissal. It also appears that the letter wasgenuine. The second letter does not establish that the first was a ruse, or “fabricated” as suggested by Mr. Forsberg. It merely establishesthat Mr. Zacks was not aware of who he was dealing with.

Even if it was the other manager, nothing turns on it because the Society didnot purport to rely upon the letter as cause for termination at the time when it did terminate Mr. Forsberg. It only did so as a form of a“last straw” in the minutes of the August meeting. That does not amount to attacking his reputation or misrepresenting the reason for hisdismissal within the meaning of the cases.

None of the information set out in the minutes has been shown to have affected Mr.Forsberg’s prospects of employment or indeed to have been disseminated outside the building. [31] I do not find that this is a case for compensatory damages. The renovations [32] It is not disputed that while Mr. Forsberg served as building manager, he devised a plan to assist in saving the defendant

money on renovations of the suites in the building. Mr. Torrance acknowledged in his evidence that he was very pleased with Mr. Forsberg’s work on the renovations to the building and the savings he had achieved for the Society. [ 33 ] The Board minutes from April 12, 2010 state that Mr.

Forsberg had done “a terrific job in putting a package together regarding future updates to the building.” The minutes speak of four suites being done as of that time, with plans for one a month. [ 34 ] The minutes from the June board meeting state: Dale has done a great job on the suite renovations for a considerable (sic) lower price. Most of this work is not part of his job description. Previously the painting and flooring was contracted out and plumbers or electricians were called in to do the more difficult jobs. Dale now buys the materials and negotiates on the price.

Some of the work is done by him or he has found people to help him at minimum wages saving the Society lots of money. Dale feels he should be compensated for this. David has made it quite clear to him that there is no way all the savings would be passed on to him however it does seem fair that he should get some sort of a bonus for this to keep him motivated. David also feels we should be keeping this totally separate from any salary increase for cost of living or performance. Moved by David Torrance and seconded by Dieter Greiner to pay Dale $1500 per suite renovation.

It is anticipated that he will do one suite per month until all of the suites are updated. [ 35 ] The minutes from the August board meeting state that six suites have been fully renovated, three have new flooring and still need kitchen renovations, and one suite is under construction. [ 36 ] Mr. Forsberg says he renovated 13 suites before his employment as building manager was terminated. On September 24, 2010, the Society paid him $6000, the equivalent of payment for four. He says he is owed a balance of $13,500.

He invoiced the Society for that amount in November 2010 and listed the suites on which he did renovations: 204, 205, 206, 404, 405, 406, 504, 702, 708, 807, 808, 1001, 1007. [ 37 ] Mr. Forsberg takes the position that he is entitled to $1500 whether or not a suite was finished, partially finished, or merely painted, because of the amount he was saving the Society. He noted that in the past, the Society had paid $1350 per suite for painting, but he did it without charge as part of the project. The Society only paid for the paint. If he did the flooring, he did it alone or had a tenant help him. [ 38 ] Mr.

Forsberg says he painted all 13 of the invoiced suites and most received a new floor. Some received a new kitchen. The Society paid for materials, but Forsberg had negotiated reduced prices with the suppliers; up to 50% lower for many materials. For a full renovation, Forsberg estimated his per suite labour, had he charged it, would have been over $7000. For just flooring and painting, it would have been over $2800. [ 39 ] Mr. Forsberg said he was honoured to be able to do this work because the Legion had started the building and his father fought in the war.

He says the Society is still using his suppliers for the countertops, and they are paying for the labour at a much higher rate. He would have continued this renovation work if he had not been fired. He was under the assumption that the renovations would have kept him at the building, earning a monthly fee of $1500, for the next 2 – 3 years. He was never told there was any problem with his work. [ 40 ] David Torrance says that Mr. Forsberg submitted a “proposal for a new contractual arrangement” in the Spring of 2010.

This included a request for a raise, which, with compensation for the suites and a bonus for saving money, would result in an $80,000 salary. Mr. Torrance told Mr. Forsberg the Society was a non-profit association and his request was not even up for discussion. [ 41 ] The Board did recognize however that Mr. Forsberg was going out of his way and working outside his terms of reference. Mr. Torrance told Mr. Forsberg he would recommend to the Board that he be paid $1500 per suite for “fully renovated suites”. He believed that Mr.

Forsberg agreed to that and that it would take effect from the time of their agreement forward. It was that discussion that caused him to take the issue to the Board. [ 42 ] To Mr. Torrance, a full renovation meant that the suite had been painted and had the kitchen counter and flooring replaced. He agreed that Mr. Forsberg had arranged discount flooring, but said he had done so without authority. Mr. Torrance took the position that paying only for fully finished suites was intended to encourage Mr. Forsberg to comply with letter of expectations; an “incentive” to salvage the employment contract. [ 43 ] Ms.

Carter testified in relation to her understanding about the work that was done on the 13 suites for which Mr. Forsberg claims. She provided a written

summary of what she recalled Mr. Forsberg had done in the suites. She pointed out firstly that two of the suites on the list, 205 & 206, were the combined suite that Mr. Forsberg and his wife lived in. The employment contract specified that the Forsbergs were permitted an allowance of $5000 for renovations on their suite, and that “the remainder will be paid by Dale Forsberg.” [ 44 ] Ms. Carter disputed whether renovations had been done on several of the suites on the list, and Mr. Forsberg acknowledged that he did not have any documentation to show that he had done work on them. In particular, Ms.

Carter said that suites 204 and 708 were completed in March, before Mr. Forsberg negotiated any reimbursement for the renovation work. In the early stages, she said, he did not request a fee, and just wanted to show the Society what could be done. Mr. Forsberg denies that he ever agreed to “work for free.” [ 45 ] Ms. Carter agreed that suite 404 was fully renovated by Mr. Forsberg, or “under his lead”, but recalled that the tenant in 405 had installed his own kitchen. Ms. Carter believed that Mr. Forsberg did very little, but acknowledged that she was only present at the

building half a day a week, and was largely relying on what she was told. She said she asked Mr. Forsberg several times for a report as to what work he had been doing, but he only ever provided it verbally. [ 46 ] In suites 406 & 504, Ms. Carter said, the Society paid for the flooring and it was installed by a person hired by Mr. Forsberg. In 702, the kitchen was ordered but installed after Mr. Forsberg left, though a little other work may have been done by him. Ms. Carter agreed that Mr. Forsberg may have helped with flooring in 807, but that 808 were done after he left.

She was unable to say whether he had done work on 1001. She agreed that he painted some of the suites but was not sure if he did them all, as she believed they had also hired people to do some. [ 47 ] Because Ms. Carter was only present in the daytime, she could not say whether Mr. Forsberg may have been working on the suites at night. She agreed that the work he did was performed well. She also agreed that she had written the minutes and they did not specify that payment was to be for completed suites only. [ 48 ] When Mr. Torrance met with Mr. Forsberg on September 2, 2010 and dismissed him, Mr.

Torrance wrote and signed an acknowledgement, “without prejudice,” on the front of an envelope with Mr. Forsberg’s name on it. It stated that Mr. Forsberg would be paid $1500 per suite for “the 4 renovated suites plus the partially completed one, less deductions for outstanding rent due, or any other related costs.” [ 49 ] Mr. Torrance said he had written the envelope “in haste” after Mr. Forsberg asked about the payments he would receive for the units he had done. He said Mr. Forsberg wanted to be assured that he would get paid after he left, so Mr. Torrance wrote it out and signed it on behalf of the Society.

He believed the partially completed unit referred to was 702. Mr. Forsberg was then given a $6000 cheque, for four suites, later in September. [ 50 ] The amount of $1500 per suite Mr. Forsberg negotiated and the Board agreed to pay represented a portion of the total savings per suite that Mr. Forsberg’s efforts were achieving for the Society. The June minutes do not specify that a renovation needed to be complete in order for the amount to be paid. [ 51 ] The evidence of the parties was that supplies were paid by the Society and labour for painting; floor and kitchen installation was supplied by Mr.

Forsberg or provided at a minimal rate by someone he hired. The $1500 was not reimbursement for the work Mr. Forsberg performed. It was more in the nature of a bonus for his having overseen a substantial reduction in cost per suite for renovations the Society had decided to undertake. In fact it is described as a bonus in the June minutes. [ 52 ] On the envelope that Mr. Torrance signed, he agreed to pay Mr. Forsberg $1500 for four suites “plus” one partially renovated suite. I do not accept that there was an “all or nothing” kind of incentive as described by Mr. Torrance.

His statement on the envelope is inconsistent with that, as are the June minutes. [ 53 ] The Society only paid Mr. Forsberg for four suites. Mr. Torrance had agreed to pay for five, but that is not the end of the matter. Mr. Forsberg did not sign the envelope and it does not in my view constitute an agreement on his part as to the number of suites for which he should be paid. As I have said, the $1500 fee may be viewed more as a bonus for savings than a fee for completion. In addition, the reason Mr.

Forsberg was not available to complete the remainder of the suites he had started, and for which he had arranged reduced price renovations, was that he was wrongfully dismissed. Given the one per month estimate, it is probable that the remainder of the suites he started would have been completed within his notice period. [ 54 ] Moreover, I view it as likely that the Society reaped the same savings on the remainder of the suites, or a similar amount, to what they would have had it been Mr. Forsberg who finished them.

All of the legwork for supplies and much of the labour, in particular the painting, had already been done. What remained to be done in the suites that were not finished was kitchen and floor installation. No receipts were produced by either party to indicate what the costs of those services was, but as I interpret the evidence, any labour amount billed to the Society in the suites Mr. Forsberg did do was above the $1500 and would have been paid to someone he hired. [ 55 ] I agree however with the defendant’s submissions that neither Mr.

Forsberg’s own suite nor the “prototype” renovation on the first of the tenants’ suites was part of the agreement. It is reasonable to conclude that Mr. Forsberg was using the first couple of renovations to demonstrate his skills, and to encourage the Board to agree to remunerate him. [ 56 ] The written proposal Mr. Forsberg submitted and his discussion with Mr. Torrance support a view that there was no agreement before April, however this does not mean the agreement was entirely prospective. The June minutes clearly talk about suites that have already been completed being subject to the bonus.

The April minutes confirm that four suites have been completed. By August it is six completed, and four partially completed. That figure of 10 total suites is consistent with a conclusion that the first “two”, Mr. Forsberg’s own suite, and the other one, suite 204, were not reported to the Board as suites undertaken pursuant to the agreement with Mr. Forsberg. [ 57 ] I find that Mr. Forsberg is entitled to a $1500 fee for a total of 10 suite renovations. The balance owed to him after deducting the $6000 payment is $9000. Bonus [ 58 ] In addition to achieving low cost renovations for the Society, Mr.

Forsberg says he also saved the Society over $100,000, by signing them up with the Not-for-Profit society, obtaining BC Hydro rebates, grant systems for redoing the lighting, a substantial reduction through negotiating a 10-year Coin-a-Matic contract on the laundry machines, and renegotiating the plumbing contract. As another example of the savings he achieved for the Society, he noted that shortly after he started as building manager, the main water line broke, and he was able to have it repaired at a substantially reduced rate. The weekend manager was reimbursed for the time he spent on that repair, but Mr.

Forsberg was never paid for any extra work he did.

[ 59 ] He argues that he is entitled to a bonus in acknowledgement for the amount he saved the Society. Mr. Forsberg included a claim for a bonus of $5500 in his November invoice. [ 60 ] Mr. Forsberg says that Mr. Torrance acknowledged that he saved the Society a substantial amount, and told him he would receive a bonus. He says they discussed an amount of about 5% of the savings of $100,000, and that this conversation took place in Mr. Torrance’s office, at the building. Mr. Forsberg did not remember the exact date, but recalled that Mr.

Torrance was about to go on vacation, and thought it was shortly after the June 8 meeting where the board voted on the $1500 reimbursement per suite. [ 61 ] Mr. Torrance acknowledged that in their discussion about payment for the suites and Mr. Forsberg’s “proposal for a new contractual arrangement”, he told Mr. Forsberg that if he fulfilled the commitments in the letter of expectations and continued to achieve savings for the Society, he would recommend to the Board a gratuitous bonus of $5-6000 at the end of the year.

Given the way the circumstances evolved, he said, it was not earned. [ 62 ] I agree with the defendant’s position that there is no evidence an additional bonus was ever agreed upon. The evidence establishes that there was a promise to consider a bonus, if Mr. Forsberg achieved his commitments, and the parties were still in relationship by the end of the year. That is an agreement to consider something in the future. It is a contingency, not a contract. [ 63 ] I agree as well that Mr. Torrance only agreed to recommend a bonus to the Board.

There was no guarantee that they would accept it, having already agreed to provide Mr. Forsberg with some additional remuneration for his work on the suites, which itself was characterized as a bonus. [ 64 ] The evidence does not come close to establishing that Mr. Forsberg is entitled to any additional bonus. There is also no foundation for a quantum meruit or unjust enrichment claim in relation to this aspect of his claim, nor was it advanced on that basis before me. ORDER [ 65 ] The Society will pay $9000 to Mr. Forsberg with Court Order Interest from December 31, 2010 and costs of $236.

The amount owed is payable by no later than June 30, 2012 unless before that date the defendant files an application for a payment hearing. ______________________ C.C. Baird Ellan Provincial Court Judge