Goodall v. Wakefield Home Builders et al. Date:, 2013 BCPC 43

Citation: Goodall v. Wakefield Home Builders et al. Date: 20130131 2013 BCPC 0043 File No: 112790 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DONALD GEORGE GOODALL CLAIMANT AND: WAKEFIELD HOME BUILDERS INC. WAKEFIELD CONSTRUCTION INC. DEFENDANTS EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.M. MERRICK Appearing in person: Donald Goodall Counsel for the Defendants: L. Sparling Place of Hearing: Sechelt , B.C.

Date of Judgment: January 31, 2013 [1] THE COURT: This is my ruling. [2] Donald Goodall started his employment with the defendants, Wakefield, in early 2008, as a construction foreman. Shortly afterthat, the defendants promoted Mr. Goodall to the position of construction supervisor, building custom homes. In late July 2011, thedefendants terminated Mr. Goodall’s employment. [3] The defendants acknowledge they did not provide notice to Mr. Goodall of their intention to terminate his employment, nor didthey terminate his employment for cause. [4] Mr.

Goodall seeks damages of $22,000, the approximate equivalent of three to four months’ notice, and his legal costs of$2,800. [5] Section 19(4) of the Small Claims Act, [RSBC 1996]

Chapter 430, prohibits the court from ordering one party to pay counsel orsolicitor’s fee to another party. Accordingly, the claim for legal costs in the amount of $2,800 is dismissed. [6] The defendants submit that they were not required to give notice and could terminate Mr. Goodall’s employment withoutcause. The defendants submit that the provisions of s. 65(1)(

e) of the Employment Standards Act, [RSBC 1996]

Chapter 113, exemptthem from any liability as a result of their termination of Mr. Goodall’s employment. [7] There is no issue that Mr. Goodall was employed at one or more construction sites and that the defendants’ principal businessis construction. The statutory requirements have been met. [8] While this provision may provide an exemption to liability under the Employment Standards Act, the question for me to resolveis whether this bars a civil action for damages for wrongful dismissal. I have concluded it does not. [9] At common law employees have a right to pay in lieu of notice of termination as an implied term of the contract ofemployment. [10]

Section 65 of the Employment Standards Act applies only to claims made under the Employment Standards Act. This is notsuch a claim. [11]

Section 118 of the Employment Standards Act provides that nothing in that Act affects a person’s right to commence andmaintain an action that, but for the Act, the person would have had the right to commence and maintain. See also Macaraeg v.

E CareContact Centers Ltd., 2008 BCCA 182, a decision of the British Columbia Court of Appeal, paragraphs 96, 100 to 103. [12] Finally, the defendants submit that because a recent version of their employee handbook contains the provisions of s. 65 of theEmployment Standards Act and the handbook is given to the employees, the defendants are not liable for any damages resulting fromMr. Goodall’s termination. [13] Mr.

Goodall says, and I accept his evidence, that the handbook he received did not contain the provisions. [14] There is nothing in the evidence before me to suggest that s. 65 of the Act is an implied term in Mr. Goodall’s employmentcontract. I am satisfied that the claimant has proven that there was no such implied term. [15] Having determined that s. 65 of the Employment Standards Act is not a bar to the claim, and there being no issue that Mr.Goodall’s employment was terminated without notice and without cause, the issue becomes what are the appropriate amount ofdamages. [16] Although Mr.

Goodall seeks damages of $22,000, the approximate equivalent of three to four months’ notice, he acknowledgeshe found work at the equivalent level and rate of pay with another construction company within four to five weeks of his employmentwith the defendants being terminated. [17] In breach of contract cases such as this, there is a rule that a wronged claimant is entitled to be put in as good a position as hewould have been in if there had been proper compliance by the defendant. That is subject to the qualification that the defendant cannotbe called upon to pay for avoidable losses.

It is in this sense that the claimant has a duty to mitigate. See Michaels v. Red Deer College, (SCC), [1976] 2 S.C.R. 324. [18] Mr. Goodall has fulfilled his duty to mitigate. Accordingly, the maximum amount of his damages is $7,000, the approximateequivalent of four to five weeks’ notice. [19] The question now becomes what was the appropriate notice period?

At the end of the day, the question really comes down to,what is objectively reasonable in the variable circumstances of each case? [20] The most important factors are the responsibility of the employment function, age, length of service and the availability ofequivalent, alternative employment. See Ansari v. British Columbia Hydro and Power Authority, (BCSC). [21] Applying those factors to this case, Mr. Goodall was 53 years old, in a supervisory capacity, had been employed by thedefendants for approximately three-and-a-half years, and based on Mr.

Goodall’s evidence, there were limited opportunities forequivalent, alternate employment. [22] I have therefore determined that three months would have been the appropriate notice period.

[ 23 ] Mr. Goodall has fulfilled his duty to mitigate. [ 24 ] Accordingly, there will be judgment in favour of the claimant against both defendants, jointly and severally, in the amount of $7,000, expenses in the amount of $176, and prejudgment interest from September 15th, 2011. [ 25 ] So the judgment against the defendants is $7,176. The court registry will calculate the prejudgment interest. [ 26 ] On behalf of the defendants, how long do you think the defendants need to pay the judgment? [ 27 ] UNIDENTIFIED SPEAKER: I think we can pay within the next day or so. [ 28 ] THE COURT: Okay.

I will say that payment is due say by Tuesday, February 7th, 2013, at 4:00 p.m. Pacific time. [ 29 ] UNIDENTIFIED SPEAKER: Sure. [ 30 ] THE COURT: And Madam Clerk, please order a copy of my reasons for judgment. They will be added to the Provincial Court judgment database so that you are able to get a copy electronically through the database. That process usually takes about a -- it usually takes about a month. [ 31 ] Thank you, gentlemen. (REASONS CONCLUDED)