Rock v. Michael’s Enterprizes Ltd. Date:, 2016 BCPC 160

Citation: Rock v. Michael’s Enterprizes Ltd. Date: 20160526 2016 BCPC 0160 File No: 1424335 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: APRIL ROCK CLAIMANT AND: MICHAEL'S ENTERPRIZES LTD. dba JACK LONSDALE'S PUBLIC HOUSE DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.A. DYER Counsel for the Claimant: Kemily Ho Counsel for the Defendant: Julianne Yeager

Place of Hearing: North Vancouver , B.C. Dates of Hearing: October 26, 2015 and January 27, 2016 Date of Judgment: May 26, 2016 [ 1 ] On July 21, 2014 the claimant Ms. Rock commenced an action in this court against Michael’s Enterprises Ltd., a company carrying on business as Jack Lonsdale’s Public House, which was formerly called Jack Lonsdale Pub. This business at all material time has been located at 1433 Lonsdale Avenue very close to the intersection of 14 th Street. I shall refer to the defendant as “Jacks”. Its principal is one Michael Fournogerakis called Mike Rakis or Mike Sr.

He has a son one Mike Jr. also employed at Jacks. [ 2 ] In her action, Ms. Rock seeks damages for wrongful dismissal. For some 22 years she worked part-time as a waitress or server at Jacks. She alleges that she was wrongfully terminated in the fall of 2012 shortly before Jacks was temporarily closed for renovations.

In her counsel’s written argument, she advances a claim for damages caused by Jacks’ failure to give her reasonable notice of the termination of her employment and submits that reasonable advice should be found by this Court to be some 16-18 months. [ 3 ] It is submitted by the claimant that I should find her 2012 annual income at the time of termination was some $28,000.00 per year comprising wages at $10.00 an hour and on average $1,000.00 in tips each month.

She has produced no records of her hours or tips in the year 2012, but did for the years 2009-2011. [ 4 ] Jacks in its amended reply filed October 16, 2015 asserts various defences as follows:

(1) The claimant was given reasonable notice - thus she was not wrongfully dismissed.

(2) If she did not receive reasonable notice, her refusal to accept an offer to continue in Jacks’ employ during the renovations was unreasonable and a failure on her part to mitigate her damages and a complete defence to her claim.

(3) If her refusal of this offer of other employment at Jacks was not reasonable, she did not pursue in essence in a reasonable way other employment in the notice period and this failure was in breach of her duty to mitigate her damages.

(4) The defendant is entitled to set off her income earned during the notice period against any damages it may be held liable for failure to give her reasonable notice of the termination of her employment, i.e., in wrongfully dismissing her. [ 5 ] There are certain very well established general legal principles that apply to a case of this sort as follows: (

a) Absent express contractual terms on point, every contract of indefinite hiring (or employment) contains an implied term that if the employer wishes to terminate an employee’s employment and has no just cause to do so, he must give her reasonable or “due” notice or payment in lieu of such notice. I note just cause or the employer having lawful reason to end Ms. Rock’s employment is not in issue in this case. (

b) The onus is on the employee to prove on the balance of probabilities that she has been wrongfully terminated. (

c) The onus is on the employer to prove on the balance of probabilities that he gave the employee reasonable or due notice that her employment would be terminated. (

d) Damages are awarded to compensate the employee by reason of the employer’s breach of its contractual obligation to provide reasonable notice, not for terminating the employment contract. Employers are able to terminate employment provided they give proper notice or pay in lieu or have just cause. Employees’ jobs are thus not indefinite or somehow guaranteed forever. (

e) A wrongfully dismissed employee is obligated to reasonably mitigate her damages she is otherwise entitled to during the reasonable notice period and in the event she does so successfully and secures alternative employment, the employer is entitled to have a credit for or set off this income against damages he is obliged to pay. (

f) The onus is on the employer to prove on the balance of probabilities that the employee failed to mitigate her damages in that she did not take reasonable steps to secure suitable replacement employment and had she done so, she could have found it. [ 6 ] There are a multitude of other legal principles that can be found in the cases which in this area of the law are legion including related to (

f) above including whether or not a dismissed employee is legally obligated to take a job, even a different job with her employer (or not) and when her refusal to do so might be a complete defence to her claim for damages for wrongful dismissal. I will deal with these concepts below. [ 7 ] Before dealing with the evidence more fully, I want to describe in a general way what the defendant’s business was comprised of at the material time and Ms. Rock’s role in it. [ 8 ] Michael Fournogerakis (who was called Mr.

Rakis at trial) is a director of the company and testified at trial stating he was Jacks’ owner - both the pub and the attached liquor store. [ 9 ] He testified that he had employed Ms. Rock in the pub for 22 years and as well gave her some work outside the pub business approximately 3 years ago cleaning certain townhouses he had built. He testified both in direct and cross-examination that he thought he had a good relationship with her and said he'd never had an argument with her in 22 years. At the time Mr.

Rakis repeated in his cross- examination a second time that he thought he had a good relationship with Ms. Rock while they worked together, I observed Ms. Rock

seated in my courtroom smiling and nodding her head sideways in the manner in which many people show disagreement. She was a good employee. She brought him cookies once a month. She worked only Monday to Thursday evenings from approximately 5:30 pm to 11:30 pm. She refused to work Fridays or weekends. He believed in the last 10 years, 2002-2012, she had not worked a day shift. On cross-examination he said in the last 10 years Ms. Rock was very rigid in keeping to this schedule, that she was never scheduled to do other nights and that it was rare for her to work another schedule.

He did agree that in November and December 2011, she had worked some day shifts on a number of Mondays. He at no time told her he did not want her to work at Jacks. He said even after the pub closed for renovations, he wanted her to work there. She was an asset to his business. He described his relationship with her while the renovations were ongoing as “friends”. During the time the renovations were underway (approximately 9 months), the claimant visited Jacks on 2 or 3 occasions according to Mr. Rakis and did so to see how they were coming along.

He gave her a tour of the premises and asked for her comments on same. On a related point, he testified that prior to November 2012 when he obtained detailed drawings of the proposed changes to Jacks, he showed them to Ms. Rock and other staff members and spent some time reviewing them and measuring, I assume proposed changes with Ms. Rock. [ 10 ] He recalled at the times she dropped in and toured the ongoing renovations they discussed their children. [ 11 ] The last time he recalled hearing from her was in about May 2013.

He had earlier told her that he was not sure when they would reopen and suggested she come back later when the renovations were further along. He testified that in 2012 he had no reason not to rehire her - she was a good employee. In one discussion he recalled having with Ms. Rock, he indicated to her that when the renovations were done, his sons would be ready to take over the running of the business. This process commenced by at least the Spring of 2013.

He also testified that there was some delay on his part moving forward with the pub renovations because he was waiting for his sons to get older in the sense to be more mature and ready to run the business. This takeover has now occurred. [ 12 ] In September 2012, Mr. Rakis offered Ms. Rock a job in the liquor store that was contiguous to and part of the family business Jacks. He said he did not put this offer in writing because he felt his relationship with her was close enough that it was not required - it didn’t seem necessary. I will return to this event in more detail below.

Prior to providing her at her request with the written notice (Exhibit 1, tab 2) dated November 3, 2012, he testified that he didn’t feel she’d leave work with Jacks. [ 13 ] When the pub reopened in August 2013, his son Mike Jr. was in charge. [ 14 ] In my view none of the above evidence given by Mr. Rakis was successfully challenged on cross-examination or really shown to be materially in error. I do not consider his admission on cross-examination that Ms. Rock worked a few Monday day or afternoon shifts to be a material inconsistency with his direct evidence that Ms.

Rock was very rigid in the shifts she wanted to work and did work. [ 15 ] I turn now to Ms. Rock’s evidence concerning her work environment at Jacks and relationship with Mr. Michael Rakis - her “boss” as she described him. [ 16 ] She testified she didn’t interact with him a lot particularly in 2012 - her last year at Jacks as he was busy with other work but said they had then been friends for a long time corroborating Mr. Rakis’ evidence to the same effect. [ 17 ] She said she was given no indication really by Mike that she would be terminated if the pub stayed open.

This testimony which I accept as true tends to corroborate what Mike said essentially that she was a good employee and that he wanted her to remain working in the family business. [ 18 ] She agreed that she had spoken to Mike on a number of occasions while the renovations were ongoing between November 2012 and the summer of 2013, however, her evidence as to what was said was not the same on all points as compared to his.

She said she lived near Jacks and recalled going in six to twelve times between January 1 - June 30, 2013 to see first-hand the progress of the renovations and on several occasions during these visits spoke to Mike and his son Mike Jr. on the premises. She said she was a good worker at Jacks and very happy with her job. She had a good relationship with the pub in November 2012.

She agreed Mike Sr. had given her a tour of the pub renovations in the first 6 months of 2013; however seemed to be unclear whether or not while doing so had pointed out new things to her. [ 19 ] I conclude based on all the evidence given by the employee and employer in this case that at all material times they had a good, positive, friendly relationship. They had worked together very closely, likely for 4 days out of seven each week in the ten years at least prior to November 2012.

I find that Jacks was indeed a family business as I have described it wherein Mike Sr.’s wife Allison was involved, as were their sons, seemingly more so Mike Jr. and more so in the years 2012 and particularly 2013. I find that Jacks business comprised 2 entities: a pub and a liquor store. This business is well known to anyone who works in North Vancouver as I do. It is not a particularly large facility for example as compared to an Earls or Milestones restaurant in North or West Vancouver.

It is the sort of work environment where my common sense tells me workers would by reason of proximity interacting together at work come to know one another. I find on all the evidence that the working environment at Jacks was a good one at all material time. I accept the complainant’s evidence that she wanted to return to work there as a waitress probably for this reason. No witness gave any evidence that was either critical of the work environment at Jacks or of the working relationships between management, for example Mike Jr. and any workers, or between the workers inter se .

Some work environments have been described with adjectives such as toxic. Not Jacks. I find that at all material times Ms. Rock and Mike Sr. were friends and that there was a high level of trust between them. There is no evidence and no argument that the defendant employer prior to November 2012 ever did anything to breach this trust. For example, there is no evidence in this case that any person in management at Jacks (for the most part Mike Senior) ever shared any confidential information Ms. Rock had given them with another contrary to the wishes or reasonable expectations of Ms. Rock.

I find that one strong example of the trust, friendship and indeed level of respect between these 2 parties was Mike Senior’s discussing the proposed renovations shown on the plans with Ms.

Rock at the very least affording her an opportunity as a long-standing employee to comment on same. [ 20 ] Thus to conclude at all materials times, I find that the work environment was a positive one for the claimant and her efforts as a long-standing employee were much appreciated by Mike Sr. [ 21 ] I wish now to outline the issues in this case as I see them, the facts where the parties are in agreement (or do not dispute) and by counterpoint, where they disagree.

THE ISSUES:

(1) What income was Ms. Rock making in 2012 in her job as a 4 day a week waitress at Jacks including tips?

(2) What notice did Jacks give Ms. Rock that her job would cease during renovations? Was it “reasonable” or “due” notice?

(3) Was she laid off in November 2013 or was her employment terminated?

(4) What proper or due or reasonable notice ought Jacks to have given her?

(5) If she was not given proper notice, was there as a result, a breach of her employment contract?

(6) If there was a breach of her contract, what damages is she entitled to by reason of the failure on the part of the defendant to give her reasonable or due notice?

(7) Related to (6) has the defendant proven or failed to prove that the claimant did not mitigate her damages? If the claimant failed to do so, what is the effect?

FACTS NOT IN DISPUTE: [ 22 ] Certain facts are while not admitted are not really in dispute in this case as follows: - The Claimant was a server at the Defendant’s Pub for about 22 years from 1990 to November 2012; - The Claimant’s employment terminated on or shortly before November 17, 2012; - The Claimant had advance knowledge that the Pub would close and she would be “out of work”; - The Pub was closed for renovations from November 18, 2012 until the end of August, 2013; - The Defendant has not paid any notice payment to the Claimant for the termination; - There was at least “mention” of a position the Claimant could have had in the Defendant’s Liquor Store during the renovations; - The Claimant never sought or accepted employment in the Defendant’s Liquor Store; - Following the termination, the Defendant advertised serving positions in the reopening Pub; - Following the termination, the Claimant never formally applied to work at the Pub using the Defendant’s advertised application process; - The Claimant never returned to employment at the Pub; - The Claimant operated an income-generating side business before and after the termination; - In November of 2013 the Claimant became employed at Safeway. [ 23 ] These facts are taken substantially but not completely directly from the defendant’s helpful typewritten opening in this case and are not really contested by Ms.

Rock. This list is not likely exhaustive. A formal agreed statement of facts contains the following further true or non-contentious facts: 6. The Pub remained closed for renovations for a number of months. At some point the Defendant published advertisements on the Internet classified service Craigslist, advertising employment opportunities that would be available when the Pub reopened. The Craigslist advertisement is listed as document 3 in the Agreed List of Documents. 7. The Claimant responded to this advertisement and corresponded with the Defendant.

This correspondence is provided as document 4 in the Agreed List of Documents. 8. Since the termination of her employment with the Defendant in November of 2012, the Claimant has not been employed again by the Defendant.

DISPUTED FACTS: [ 24 ] Important facts not agreed to or admitted which are in issue in this case would include the following: - The amount of tips typically earned by the Claimant during her employment at the Pub; - The length of advance notice the Claimant had that the Pub would close; - Whether the Claimant was offered a sales-type position in the Liquor Store; - If so, what the terms of that offer were; - The amount the Claimant earned in mitigation of her damages following the termination. [ 25 ] Again this non-exhaustive list derives from the defendant’s typewritten opening and were not contested by Ms.

Rock.

What income was the claimant making in 2012 at Jacks? [ 26 ] I find that by 2012 she was working primarily 4 night shifts per week an average 7 hours per shift. [ 27 ] She produced her annual diaries from 2009-2011 albeit after the trial had started said to have been found in her work bag, but strangely could not locate the most important one relating to the year in which she alleges she was wrongfully dismissed - namely 2012. For each of these 3 years she testified that each working day she set out her hours worked at Jacks and her tips rounded to the next dollar.

Counsel for the claimant has tallied these tips per month from January 2009 to December 2011 in Appendix “A” to her argument - finding that they totalled in each years as follows: Year Tips 2009 $14,038.50 2010 14,264.00 2011 12,092.00 Total $40,394.50 [ 28 ] Counsel for the defendant did not really challenge the methodology the claimant said she had used, namely to make daily entries as she went along and that it was in fact used or that there is really no coincidence that in 2 contiguous years - she made (but for $225.00) - the same amount of tips all year long.

Nor was the absence of the 2012 diary really questioned on cross-examination. I have therefore assumed the tip amounts shown are accurate but only for the years shown above. [ 29 ] Mr. Rakis gave evidence that in the Fall of 2012, he paid the claimant at the rate of $9.65 an hour. Both counsel in their closing submissions used a figure of $10.00 an hour which I will adopt in these reasons. [ 30 ] I find based on all the evidence (including Exhibit 9 - the photocopies of Ms.

Rock’s 2009-2011 calendars with hours recorded) that as a general proposition, she worked four 7 hour shifts each week - in the evening Monday to Thursday inclusive or 28 hours per week or times 52 weeks 1,456 hours per year for an annualized 2012 wage excluding tips of some $14,560.00. [ 31 ] Counsel for the claimant submits that Ms. Rock’s income on the date of termination was some $28,000.00 including tips. She did not set out how she reached this conclusion.

Deducting her wages ($14,560.00) from $28,000.00 leaves $13,440 for tips which divided by 12 months yields an average monthly tip of $1,140.00 based on the assumption that her tips in 2012 would have been the same in 2012 as they were on average from 2009-2011. The claimant bears the onus of establishing her own income on the date of termination. I accept Mr. Rakis’ evidence as truthful that he would have no way of knowing what Ms. Rock’s tips were.

I also accept as accurate his statement that in her last year he could guarantee that she didn’t make very much in tips. [ 32 ] The best evidence as to the level of tips she made in 2012 was neither produced before or after trial. It is of concern to me that the claimant could locate only the original diaries for 3 good years (2009-2011) but not this critical document for 2012, which I find was not such a good year as 2011. What she did find were only made available to her own counsel very late in the day after the trial had started and in my view with a not very good explanation. [ 33 ] Mr.

Rakis testified that in 2012 people including I think regular customers knew Jacks was closing for renovations. He estimated sales were down 40-50% as compared to 2011. The staff had been cut by one half in 2012. In 2012 he had 6 part or full time employees whereas in 2011 he had 20. He said Jacks’ business was going down in 2012 and that he did not replace employees who left. I accept this evidence as true. It was corroborated in part by Mike Riglietti, currently the liquor store manager at Jacks, who described the pub as rundown in 2012. Ms.

Rock agreed with this assessment and I think too as to the need to renovate it and fix it up. Mr. Rakis was not really challenged in cross-examination on his evidence that sales were down 40-50%. [ 34 ] I find as a fact that sales in 2012 were down by 45% as compared to 2011. Doing the best I can with the evidence the claimant has provided, I find that based on her 2011 tips (Appendix

A) or $12,092.00 that she would have made at most 55% of this amount in 2012 had she worked the full year or $554.40 per month or an annualized amount of $6,653.00. [ 35 ] Adding this to her annualized wage, I find that her 2012 income on the date of termination was an annualized amount of $21,213.00. This in a manner of speaking is the yardstick against which her efforts to mitigate her loss, if any, can be measured. What notice did Jacks give her that her job would cease during renovations? [ 36 ] Mr. Rakis testified that his decision to renovate was made in about 2009.

The planned renovations were quite extensive. In 2009 he felt he could not give a date as to when they would be completed. At some point he hired an architect. He spent hours discussing proposed changes with several of his staff including the complainant. By the summer of 2011, he had a set of detailed drawings. These too were discussed with staff including Ms. Rock and the bartender Monk. He made it clear he wanted their input and wanted particularly long-term staff to know what he was doing. He testified he was quite involved with Ms.

Rock going over the plans and that she had helped him measure things out in the pub, I assumed as per the plans. [ 37 ] He did not give a date but I find on all the evidence this process would have been ongoing in the summer of 2011. [ 38 ] This consultation process took some time. Again, Mr. Rakis said he delayed it somewhat as he was waiting for his sons who were in essence being groomed to take over the business to mature and be ready. [ 39 ] Eventually in early September 2012 he applied for a building permit. He was told by a City Hall official that the approval process would take 6-8 weeks.

He was not asked if he advised his employees about this time line, but I find that it is more probable than not he would have advised his long standing staff including Ms. Rock about this time line. She did not testify that he did not.

[ 40 ] He testified that he had no doubt a permit would ultimately issue once the application had been made but said he had no control over this approval process. [ 41 ] The building permit issued in late November on a Friday and the pub closed on the Monday following for the start of renovations. I find this was on or about November 19, 2012. I find that the pub reopened once the renovations were completed on August 27, 2013 - some approximately 9 months later. There is no evidence that Jacks delayed the construction work after November 17 in any way. [ 42 ] Mr. Rakis was of the view that he had given Ms.

Rock notice that her employment would have to end when the renovations started some years before November 2012. [ 43 ] Reference is made to her affidavit sworn January 27, 2014 (Exhibit 1, tab 5) at paragraphs 12-14 as follows: 12. The owner of Jack’s, Michael Fournogerakis, started talking about renovating Jack’s at least three years before the construction happened. 13. The renovations were put off several times due to delays in financing and permitting, among other problems. 14.

I knew about the planned renovations and knew that when Jack’s was closed, I would be out of work. [ 44 ] The complainant testified at trial that the contents of her affidavit were true. I would note that there was no evidence at trial to support the assertion made by Ms. Rock in paragraph 13 of her affidavit. Mr. Rakis said the renovations were self-financed. [ 45 ] Mr. Rakis testified that he gave Ms. Rock further notice in the first week of November 2012 that the pub would be closing shortly by putting a note on the cash register that all staff had to use. Ms. Rock agreed she had seen this note on November 3.

He also thought his accountant put the closing date on her final cheque. No cheque was produced at the trial. [ 46 ] On November 3 Ms. Rock testified she asked Allison, Mr. Rakis’ wife, if they intended to give letters to staff concerning their employment status and when she advised this was not going to occur, and if Ms. Rock wanted one, to write it up and she would sign it. I understand eventually Allison Rakis, on behalf of Jacks, prepared and gave Ms.

Rock the handwritten letter she wanted dated November 3, 2012 which states as follows: April Rock, This letter is to advise you that as of November 18 th , 2012 you will be laid off from Jack Lonsdale’s Pub, due to the renovations that will begin. We are hoping for a 3 month close, but will not know our opening until work is completed. Thank you. Alison Fournogerakis Jack Lonsdale’s Pub [ 47 ] Mr. Rakis disagreed that the claimant wanted this letter because she was on November 3, 2012 unsure of the closing date of the pub, but did agree (

a) that it was not until November 3 that the claimant was given a precise date as to when her job would end and (

b) that her employment ended when the pub closed for renovations. [ 48 ] Ms. Rock’s evidence at trial on point included testimony in accordance with her above affidavit that she knew the pub would be closing for some 3 years because Mike Senior had been saying so for 3 years. The renovations were an ongoing process over 3 years in essence prior to November 2012. But she said she didn’t know when it would be closing.

She testified that she expected or had hoped to be told in advance of November 3 (the only notice of termination she said she received) when the pub was closing. [ 49 ] She also testified that by the summer of 2012, she was panicking over the prospect of being out of work being a single mom. I note that Ms. Rock gave next to no evidence as to her family demands and situation at any material times relevant to the issues in this case.

She said in answer to a question from her counsel: when did it become clear to her that she wouldn’t have a job? - that she knew she would be out of work when she got the above November 3, 2012 note. I do not believe this evidence. It is not in accord with other evidence given by Ms. Rock to the effect that starting in approximately mid-August 2012 she commenced looking for other jobs because Jacks was becoming more confident that the renovation would occur and told her that they were awaiting only permits and that the plans were in. I note this evidence is inconsistent with certain evidence Ms.

Rock gave in cross-examination that Mr. Rakis had not told her about the progress of permits and plans. I do not accept this evidence as to her lack of knowledge as to the status of permits and plans as either accurate or reliable. She said she felt more confident in mid-August that the renovations would go ahead so she then started to look for other work. She testified that in August it was nonetheless a possibility in essence in her mind that the pub would remain open after November as earlier closing dates or renovation start dates provided by Mr.

Rakis had been and gone with no renovations having been started. Had it remained open, she felt she would have continued working there as she by August had been given no indication that she’d be terminated if the pub stayed open. [ 50 ] There was no evidence offered at the trial by Mr. Rakis including in his cross-examination on point that earlier renovation or closing dates had been given and had come and gone. I give the claimant’s evidence on this point no weight.

The claimant’s own above evidence suggests that in mid-August 2012 contrary to her other evidence she believed the pub would close in November. [ 51 ] In mid-august 2012 when Ms. Rock commenced looking for other jobs, she was doing exactly what a person who has been given reasonable or due notice is expected to do - look for comparable work to replace a job that is to end. [ 52 ] Ms. Rock also testified in a somewhat vague manner that she had spoken to Mike Sr. on many occasions about her concern of

being out of work during the renovations and for how long and as well about whether she would be hired back after the renovations werecompleted. She was somewhat vague about the dates when these discussions were held but said that Mike Sr. was always vague in hisresponses stating, for example, he didn’t know when the permit would issue. As to her being rehired, according to her, “he said he didn’tknow, we’ll see, we’re not there yet” - words to this effect.

My assessment of her evidence is that she was interested in 2012 inremaining at Jacks as a waitress and that some of these discussions occurred before November 17, 2012. [53] Thus I find that Mike Rakis Sr. gave the complainant notice commencing in 2009 that substantial renovations were to be done tothe pub in particular and that she knew by the latest in the Summer of 2011 when plans were received that once the renovations started,that she would not be able to work as a waitress at the pub and her job would cease.

This is not however a finding that she received dueor reasonable notice as the law defines it prior to November 3, 2012. [54] I find that notwithstanding the content of the above November 3, 2012 note - Ms. Rock was terminated effective November 17,2012 on November 3 and not merely “laid off”. While there is some law to support the proposition that a party can agree in a contractwith an employer to be laid off - no such term existed in the claimant’s contract of employment with Jacks.

What due or reasonable notice should the claimant have received? [55] On this point, the claimant argues variously that (1) notice of dismissal must be specific and unequivocal and must be clearlycommunicated to the employee to be legally valid and effective citing Yeager v. R.J. Hastings Agencies Ltd., par. 40BCSC, a judgment of Wood J. [56] In Yeager, a 30-year employee was found to have been wrongfully dismissed in that the defendant employer had not given himreasonable notice of his termination. In December 1980 in an oral discussion Yeager’s boss, a Mr.

Hastings, appeared to advise him thathe wanted the plaintiff to leave within 6 months and to take time off work to find a new job. The plaintiff understood this meeting toconvey a message that he should consider leaving and that the decision to do so and when was up to him. The plaintiff was givennothing in writing in December 1980 on point. He remained employed with the defendant for some 17 further months and was thensummarily dismissed for cause. Six (6) months after December 1980 he was not asked to leave. Mr.

Justice Wood said this in paragraph40 of his reasons: 40] Notice of dismissal must be specific and unequivocal and it must be clearly communicated to the employee if it is to be effectivein law. The onus of proving that such a notice has been given rests upon the employer who seeks to raise it as a defence to an action fordamages for wrongful dismissal. On the evidence before me, I cannot conclude that such a notice was probably given to the plaintiff inDecember 1980 or at any time before he was terminated on 30th April 1982.

The defence of notice therefore fails. [57] Wood J. does not state in Yeager that a certain future date when an employee’s employment is to terminate must be given to anemployee. In addition, Yeager was not a case where the employer was intending in future to renovate the very work environment inwhich the employee performed the duties of her employment. [58] In Kalaman v.

Singer Valve Co., (1997) 38 BCLR (3d) 33, our Court of Appeal referred to Yeager in summarizing the law as towhen notice of termination is given and when the notice period begins to run at para. 38 as follows: [38] Counsel agree that, to be valid and effective, a notice of termination must be clearly communicated to the employee. A noticemust be specific and unequivocal such that a reasonable person will be led to the clear understanding that his or her employment is at anend as of some date certain in the future.

Whether a purported notice is specific and unequivocal is a matter to be determined on anobjective basis in all the circumstances of each case. Counsel cited Gibb v. Novacorp International Consulting Inc. (1990), 48 B.C.L.R.(2d) 28 at 34 (C.A.) and Yeager v. R.J. Hastings Agencies Ltd. (1984), (BC SC), [1985] 1 W.W.R. 218 at 228-29(B.C.S.C.) as authority for that legal proposition. [59] In Gibb v.

Novacorp International Consulting Inc., 1990 BCJ No. 1705, Wood J. said this on what appropriate notice was atpara. 34: I do not think that in order to be specific and unequivocal, the notice given must necessarily use the words “you are hereby dismissedeffective …” or some such equivalent. If the words used are such as would lead a reasonable person to the clear understanding that hisemployment is at an end as of some date certain in the future, it may well be that specific, unequivocal notice has been clearlycommunicated.

It must in every case depend on all of the circumstances in evidence. [60] Thus based on Kalaman and Gibb, it would appear that a necessary constituent element in lawful reasonable notice is a datecertain as to when the employee’s employment will end. [61] The claimant further submits:

(2) A general forewarning of the potential closure of the pub does not amount to legal notice ofdismissal nor does it serve to decrease the notice period citing Ostrow v. Abacus Mgt. Corporation Mergers and Acquisitions, 2014BCSC 938. [62] In Ostrow, a senior manager specializing in US and international tax was dismissed by his employer on December 1, 2011having worked for 9 months. It was admitted that the one (1) week’s payment in lieu of notice he was given on termination was notproper - thus liability was not in issue, rather only damages which Watchuk J. set at 6 months.

His written contract provided I assume inthe event of his termination he would receive or be given reasonable notice or pay in lieu of notice in accordance with the law (para. 17). In October, his boss told him he should start looking for new work. Mr. Ostrow then hoped his employer would change its mind in

essence concerning his continued employment but did start to explore the availability of other jobs. His manager then also held out somehope the corporate decision concerning his future might be reversed. At trial the defendant argued: .. that the court can take into account prior notice of termination when assessing the notice period, citing Hewitt v. Craig Brothers Ltd.,2005 SKQB 392, and Holmes v. Irving Shipbuilding Inc., 2001 NBBR 142 , 2001 NBQB 142.

Abacus also submits a polityargument, arguing that forewarning employees of pending termination is a practice which should be encouraged by reducing the noticeperiod.” (see para. 91 of reasons) [63] Madame Justice Watchuk concluded her discussion and finding on this point as follows: [92] However, this law is clear. The jurisprudence in this province regarding when notice is deemed to be given is as stated inKerfoot. Notice is a binary concept; an employee is either given notice of termination or they are not; and that notice must not beambiguous.

The reasonable notice period begins on the date unambiguous notice is given. [93] I am not persuaded by the defendant’s submissions. There was no unambiguous notice given before December 1, 2011. I findthat the “forewarning” that the plaintiff should look for other employment is not a factor which can decrease the length of the noticeperiod in this case. [64] Neither counsel before me cited or relied on Hewitt and/or Holmes (supra). [65] The claimant further submits:

(3) Jacks alleged notice to the claimant regarding the anticipated renovations was neither specificnor unequivocal and (4) the advice the claimant received (concerning the upcoming closure) amounted to: “Your employment with thepub will terminate if and when the pub closes for renovations. Otherwise you will remain employed in your current position.” [66] I am not in agreement that this quoted excerpt from counsel’s argument fairly represents either the message the claimant gotfrom Jacks or as a reasonable person, should have understood.

I find she knew or ought to have known certainly when architecturalplans were obtained and reviewed with her that there was nothing “iffy” about the pub closing and related renovations at all. There is noevidence any representative of the defendant ever told Ms.

Rock that the renovations were, for example, on hold or would not beoccurring. [67] I find she well understood from 2009 on that the renovations would be such that in order for them to be done, the pub wouldhave to close and that the environment where she performed her waitressing duties would be under construction and that her employmentas a waitress once renovations started could not continue. [68] The claimant submits (5) that the case at bar is factually similar to that of Kerfoot v.

Weyerhauser, 2012 BCSC 640 aff’d (2013)BCCA 330 which authority requires as well for lawful reasonable notice to be given, that a certain future date be provided as to when theemployment will terminate. The BCCA decision in Kerfoot is well described by Watchuk J. in Ostrow on the issue of notice in herreasons at paras. 89 to 91 as follows: [89] In the recent decision of Kerfoot, the Court of Appeal again discussed the issue of when notice of termination is deemed to begiven.

Kerfoot involved an appeal by the employer, Weyerhaeuser, from the decision of the trial judge to award two employees onemonth of notice for each year of service, awards of 18.4 and 15.75 months’ notice.

On this point the court allowed the appeal,commented on the use of a formulaic approach, and changed the notice periods to 15 months for each employee, based on the fact thatthe employee with less years of service had a job with greater responsibility. [90] Weyerhaeuser had informed the employees that it intended to transfer its operation to another corporation, Domtar Inc., whichthey expected to take place within six months, though no firm date was given.

Approximately six-and-a-half months later Weyerhaeuserannounced that the transaction had been completed and the employees were informed that they were terminated, but re-employed byDomtar Inc., effective immediately. At trial and during the appeal, the employer argued that notice of termination was given when theemployees were told that their jobs would be terminated at the completion of the transaction. The court upheld the trial judge’s findingthat the certainty required for notice was not present, and stated: 27 This ground of appeal engages the legal characteristics of notice.

Notice is a binary concept; either there is notice or there is not.

In other words, communication that is almost notice is not notice at all. … 31 Although Gibb admits of a rare case in which notice is given even though the date of termination is not defined in the initialcommunication, it demonstrates that, at a minimum, clear communication of impending termination is required, and it is a case in whichcertainty of the date of termination was soon defined by communications between the parties. … 34I see nothing in the cases referred to by the parties that detracts from the proposition that in order for a communication to constitutenotice of termination, at the least, it must spell out clearly that the employment will end. [Underlining in the original] [91 Mr.

Ostrow was terminated on December 1, 2011. Abacus does not challenge this, but submits that the court can take intoaccount prior notice of termination when assessing the notice period, citing Hewitt v. Craig Brothers Ltd., 2005 SKQB 392 ,

and Holmes v. Irving Shipbuilding Inc., 2001 NBBR 142 , 2001 NBQB 142. Abacus also submits a policy argument, arguingthat forewarning employees of pending termination is a practice which should be encouraged by reducing the notice period. [69] The claimant submits (6) that Ms.

Rock had by reason of the notice given no opportunity to arrange her affairs or securealternate employment. [70] The claimant further submits (7) that Jacks did not provide any communications to the claimant prior to November 2, 2012 (Ithink counsel means November 3) that would have led a reasonable person in the claimant’s position to conclude that her employmentwould be terminated at a date certain. [71] Counsel for the claimant concludes her submission that the notice given was not sufficient legal notice (see claimant writtenargument, paras 8-20). [72] The defendant asserts that Ms.

Rock did receive more than reasonable advance notice of the termination of her employment andwas thus not wrongfully dismissed. Counsel for the defendant asserts in support of this position a number of points as follows: (

a) Proper legal notice for Ms. Rock would have been 2 weeks for each year worked or 11 months advance notice of termination andshe received this. (

b) She knew in 2009 that Jacks planned to close and when it did, she would have no job (see para. 14 of her January 27, 2014affidavit), but not when. (

c) Her advanced knowledge should be treated as advanced notice of termination and thus she was not wrongfully terminated citingGibb v. Novacorp International Consulting Inc. [1990] BCJ No. 1705 and Kerfoot (supra) at para. 31. Counsel argues that the facts inGibb are not distinguishable from those in the case at bar. [73] I do not agree with this submission. I find I am in agreement on the effect of Gibb as an authority in this case with Ms. Ho’ssubmission at para. 18 as follows: 18.

In Gibb the Court found that an employer had given notice of termination because the communication in question would have leda reasonable person to understand his employment would be at an end as of a date certain in the future. Unlike this case, the employer inGibb had made it clear that, in any event, the employee’s employment would be terminated. [74] In Gibb, the plaintiff employee, an engineer, received a letter dated September 2, 1986 stating in part as relevant to notice: Completion of the sale would mean that certain individuals would be offered employment with ISE when the sale is closed.

At that timethe Canocean pension and savings plans will be collapsed. At such time you will be advised in detail of the terms of your individualplans. In the event that the sale does not close you will be offered a position with Novacorp International.

In this event you wouldbecome an employee of Novacorp and Novacorp benefits would apply. [75] Wood JA held on appeal from a chambers’ judge finding that this letter contained proper notice and in upholding this decisionsaid this at page 3/6 [1990] BCJ No. 1705: Here, any reasonable person reading the letter of 2 September, 1986 would be driven irresistibly to the conclusion that his employmentwith Canocean was shortly to end.

The fact that no effective date of termination is to be found in the letter is a circumstance that mightsupport an inference that the requirement of specific notice had not been met, but again it would depend on all of the circumstances. Ifno date were given, and much time passed, it might well lead a court to conclude that no proper notice was given. But here there wascontinuing correspondence between the parties, and nine days later a letter was sent to the appellant enclosing a release for him to sign.

In that release a termination date of 5 November was specifically spelled out. [76] Thus in Gibb the employee on September 11, 1986 received some 55 days’ notice of the actual termination date. [77] The defendant argues that if the court does not accept the above submission, alternatively the advance notice or warning givenshould serve to mitigate and reduce any reasonable notice period found to be owed citing Oudin v. Le Centre Francophone de Toronto,2015 ONSC 6494, para. 66. [78] Ms.

Rock knew in the summer of 2012 that her job would terminate by the end of 2012 and thus the assessed notice periodshould be reduced by 5 months. No case is cited in support of this submission. The claimant in reply says Oudin is non-binding and thatI should follow Ostrow, a BCSC decision where without any authority being cited in support - Madam Justice Watchuk said in para. 93: [93] I am not persuaded by the defendant’s submissions. There was no unambiguous notice given before December 1, 2011.

I findthat the “forewarning” that the plaintiff should look for other employment is not a factor which can decrease the length of the noticeperiod in this case. [79] Counsel also notes this argument was rejected in Kerfoot, 2013 BCCA 330, at para. 45 where the court said as follows:

[45] … I observe that there is an element in this submission that to the extent the employer behaved well, as it did here in givingearly, continuing and candid information to its employees of the prospects for the continued operations at their place of employment, andto the extent any deficiencies of notice are a reflection of the complex business world in which it operates, it should be able to reduce thenotice period. This is rather the converse of a Wallace damages situation (Wallace v. United Grain Growers, (SCC),[1997] 3 S.C.R. 701), wherein the censurable actions of an employer are held to extend damages.

Thus, while the approach advocated by Weyerhaeuser may have some initial attraction, it would in effect be reducing the employer’scontractual obligation to give a reasonable notice because it had met the implied duty of good faith and fair dealing. I do notconsider the traditional legal framework of the law of employment contracts ties those concepts in that fashion, so as to reduce the noticeperiod for satisfaction of the implied duty of good faith.

I would not give effect to this submission in determining the period ofreasonable notice. (emphasis added) [80] In the result, it seems according to Kerfoot supra the duty or legal obligation on the part of an employer to give reasonablenotice (or pay in lieu) upon terminating an employee and to act in good faith throughout the employment relationship are separate anddistinct even if in fairly meeting its duty of good faith, it gives the employee helpful honest information that would or ought to assist himor her in knowing when to seek alternate employment - the very purpose the giving of reasonable notice in the first place is intended topromote. [81] The defendant argues that the exact closure date was not known until Jacks received building permission.

When it was firstknown by Jacks in early November 2012 - this was the first time the defendant could provide such as the closure date - it was given inwriting to Ms. Rock who knew far in advance that her employment was to end when the pub closed. (See defendant’s writtensubmission, paras. 5-9.) [82] I find based on a consideration of all these submissions and upon a review of the relevant legal authorities that while thedefendant clearly dealt with Ms. Rock in good faith throughout the roughly 3 years that renovations were being planned, discussed,finalized and set in motion, he did not give Ms.

Rock legally appropriate reasonable or due notice. Not only did he not do so as I discussbelow, he offered her continued employment albeit not as a waitress. Thus on one hand he was clearly signalling to her that her job as awaitress would end but that he wanted to keep her on as an employee. This is yet further evidence I find of his dealing with her at allmaterial times in good faith. [83] I accept that it would have been difficult for Mr. Rakis to give her a certain date when her employment would end as a waitressearly on, for example, in 2009 when the renovation start date could not be known.

However once he had his plans and had reviewedsame and made changes thereto, I think it likely he might have made some very educated guesses as to when he might get approvals andstart work. He was not asked at trial who his contractor was and what start date he was given by him and when.

The way of the worldis that this entity would have been identified early on and some start date at least suggested so that the contractor could be ready with aview to start work on Jacks. [84] I am not of the view that the renovation start date was solely determined by when Jacks learned its application for a buildingpermit was accepted. In the result, I find that a notice with a date certain as to when Ms. Rock’s employment as a waitress would endmight have been given much sooner than November 3, 2012 had the defendant really turned his mind to this issue.

What proper reasonable or due notice should the defendant have given to the claimant? [85] The factors I am to consider are referred to in many of the cases counsel have cited. In Ostrow, for example at paras. 36-38,Watchuk J. makes reference to the leading cases of Bardal v. Globe and Mail Ltd., (ON SC), 1960 24 DLR (2d) 140(OHC) and Ansari v. BC Hydro, (1986) (BC SC), 2 BCLR (2d) 33 and the principles therein. In para. 38 she saidthis: [38] The Bardal factors are not exhaustive, and no single factor is determinative (Wallace v. United Grain Growers Ltd. (c.o.b.

PublicPress), (SCC), [1997] 3 S.C.R. 701 at para. 82 [Wallace]). When assessing these factors the court must not apply aformulaic approach, but must assess the relevant factors on a case by case basis, looking at recent precedents from the court to determinean appropriate range (Kerfoot v. Weyerhaeuser Co., 2013 BCCA 330 at para. 47 [Kerfoot]; and Wallace at para. 82). In Honda CanadaInc. v.

Keays, 2008 SCC 39, the Supreme Court of Canada has made clear that, like all damages for breach of contract, in damages forwrongful dismissal the court must look at the reasonable expectation of the parties at the time the contract was made (paras.55-56). [86] I have as well considered the case law examples I have been given by both counsel, Ms. Ho in support of her submission thatreasonable notice should be 16-18 months and Ms. Yeager that it should be found to be 11 months. I have rejected Ms. Yeager’sargument that Ms. Rock was given proper legal notice in excess of 11 months.

The above cases help to establish a range of notice. [87] The one case cited by both counsel that is perhaps closest to the facts in the case at bar is Smigel v. Hy’s of Canada Ltd., 1997BCJ No. 2490, a case involving a 32 year employee of Hy’s, age 59 who made $8.00 an hour plus tips working as a restaurant hostesswho was terminated without just cause and no notice or payment in lieu thereof. She had a grade 12 education. Cole J. receivedevidence from two former waitress employees of the defendant who explained how difficult after their termination it had been for themto find alternative employment.

No such independent evidence was called in the case at bar. Based on this evidence, Cole J. found thatthe plaintiff would have difficulties in finding equivalent employment and was satisfied that there were relatively few, if any, jobsavailable to the plaintiff similar in nature to the position she had held as a hostess. He considered this factor, that she did not earn a greatdeal of money, that she was not a supervisor, her length of service and age to be the most important factors in assessing reasonable noticewhich he set at 16 months or 2 weeks per year of service.

He also awarded her $10,000.00 damages for the mental distress she sufferedby reason of the way she had been terminated and its effects on her. The claim for same by Ms. Rock was not pursued at the trial. Bycounterpoint to Smigel, there is no evidence in the case before me that would suggest Ms. Rock was terminated in an unkindly orwretched way by the defendant as I shall further explain below.

[ 88 ] I believe of all the waitresses employed in 2011 and 2012 she was likely the most senior server at Jacks. [ 89 ] That said, she did not really perform any supervisory role when working temporarily I find 28 hours per week on average in 2011 and 2012 at Jacks. Thus the character of her employment and the responsibilities she discharged as a waitress were very much on the lower end of the scale of difficulty. Mr. Rakis said she knew a lot of the people who frequented the liquor store suggesting they were pub repeat or regular customers known to her.

Thus in my view to some extent due to her longevity of employment at Jacks and her knowledge of the customer base, the performance of her waitressing duties could well have been easier than would have been the case had she had less experience. [ 90 ] She had other employment and other income in both these years. In 2011 her total income from all sources on her tax return (line 150) was some $42,219.44. In 2012 it was some $43,173.52. Both these amounts exclude 85% of the tips she made being $10,278.00 in 2011 and I have calculated above some $6,653.00 for 2012 as well as rent at $800.00 a month.

Thus during her reasonable notice period set out below, she had the security of this other income and did not have to rely wholly on employment insurance. [ 91 ] I have been given no evidence as to her reasonable expectations at the time she commenced being a waitress at Jacks.

This is not in my view a relevant factor in this case. [ 92 ] As to the availability of similar or equivalent alternate employment, no evidence has been led by the defendant with one crucial exception to establish that jobs were available during the notice period beyond what she applied for unsuccessfully as per her evidence. [ 93 ] I do find that she had experience in marketing and serving for extensive periods of time prior to her termination and that both her training and experience qualified her to do a job in waitressing as well as potentially related forms of employment including retail liquor sales and jobs in the hospitality industry that involved dealing with people, for example., hostessing in a restaurant or pub or managing and training younger inexperienced staff in these types of occupations and environments.

She knew how to use a cash register or till to ring in sales. [ 94 ] All factors considered, I am of the view that 12 months would be the period of reasonable notice that ought to have been given in this case in a proper way - preferably in writing and with a date certain upon which her employment as a waitress would end. [ 95 ] Ms. Rock was not given this notice in the proper way as set out in the above legal authorities on point.

Thus in my view, she was wrongfully terminated by the defendant and she is entitled to such damages as she can prove (and subject always to the defendant’s argument that she failed to mitigate) caused by reason of the defendant’s breach of the implied term in her employment contract that on dismissal, he would give her either reasonable notice or payment in lieu. [ 96 ] I will deal with issues (6) and (7) above together as they are related. [ 97 ] Mike Rakis Sr. testified that in September 2012 he offered Ms. Rock employment working in the liquor store that is and was part of his overall business.

It is common knowledge that this store is now located about 50 feet across a small plaza or courtyard area from the front door of the pub where Ms. Rock worked as a waitress. The position was to commence when the pub closed which occurred in November 2012. The offer was made in a meeting after her evening shift was finished and in his office while she was cashing out after 11:30 pm. He said they discussed this alternate employment with the defendant for 10 - 20 minutes.

He described the duties expected of her including for the most part, that she would work as a cashier and have responsibilities with respect to stocking product. The reason he made this offer was because he was trying to accommodate her. He agreed that she had expressed some concerns as to what she would do when the pub closed and he told her she could stay at Jacks in this alternate form of employment. [ 98 ] He recalled her initial reaction in this discussion relating to this oral offer was that she was not interested.

She expressed a concern that there were no tips involved and that she wanted to work as a waitress. He recalled that she was pretty adamant in rejecting his offer. Clearly tips were important to the complainant as her practise was to not divulge 85% of them to CRA and thus they were mostly a substantial source of tax free money to the complainant. [ 99 ] Mike Sr. responded to her concern that there were no tips involved with the proposed alternate employment - that in fact there were - on average from $20.00 - $50.00 a day.

I find Mike Sr. as the owner of this business as compared to her, would be in a better position to know this fact than Ms. Rock and note as well his evidence on this point was not seriously challenged in cross-examination. Implicit in this discussion was a term so to speak in his offer that she would have a right to receive tips in the above range in addition to her wage. He also offered to increase her hourly wage by $3.00 to $12.65 an hour. Had she wanted to negotiate her pay, he said he would have considered her request.

As to her hours, he said he offered “whatever worked for her” up to 40 hours a week but did not offer overtime work. Nor did he offer a precise number of hours. I find that the offer, if made, was an offer to work up to 40 hours per week as she in her sole discretion might choose. This term if offered is exceedingly favourable to the employee allowing her to make I suppose some sort of reasonable unilateral choice of her own hours of employment.

It is the kind of term an employer might offer to a valued trusted employee he wanted to remain his employ. [ 100 ] He testified in direct that he told her this alternate employment would be a temporary position while the renovations were ongoing. In cross-examination, he said this alternative employment in the store could be temporary or permanent - whatever she wanted. He said he was in no position to offer her a waitressing job while the pub was closed.

Importantly, his offer also included a provision that when the pub reopened, there would be a position available to her either as a waitress or possibly a more senior one than the one that she had held prior to the pub’s closure in November. [ 101 ] He said he then wanted her to continue working for him.

He testified that pub customers she knew purchased liquor in his store and she would be familiar with them - I find a “win-win” situation for both her and Jacks and said she was good at communicating with people and making conversation with them. [ 102 ] I think possibly with some hindsight he testified that if she had taken up this offer, on reopening he would have put her back in her position as head waitress. He testified that Ms. Rock really asked no questions about his offer.

[ 103 ] He said he had not put this offer in writing as he felt that he and she had a close relationship and it didn’t seem necessary to do so. [ 104 ] At some point in her direct evidence Ms. Rock described herself as a good long standing employee who was very happy with her job as a waitress. Mr.

Rakis Sr. at no time during the trial disagreed with this positive self-assessment which I find corroborates his evidence that he wanted her to remain at the business as an employee during the renovation period which of course lasted from November 20, 2012 to August 27, 2013. [ 105 ] He testified that in mid-November before the pub closed, he asked her again about the above alternate employment offer - “was she sure she didn’t want it” and she did not respond. [ 106 ] I find as a fact based on his evidence and assuming for the moment it is true, that this offer was left open after it was made in early September and never withdrawn by him.

As well it was on or about November 14, 2012 again made to the plaintiff within the notice period he had given her on November 3 in writing and then neither accepted nor rejected by her.

This above situation, if it occurred as the defendant testified, was really an offer of alternate employment which I think is a somewhat different situation than an employer telling an employee that commencing on November 20 you will be performing different duties which can depending on the facts amount to a unilateral change in employment and raise the issue of constructive dismissal. [ 107 ] What amount of money did the defendant offer, again assuming such an offer was made?

I have done two calculations - one for a 28-hour week and one for a 40-hour week. 28-hour week 40-hour week Wage: Tips: 28 x $13.65/hour = $382.20 per week X 52 weeks = $19,874.40. @$25.00 - $50.00 a day Say $37.50 (median) x 4 days = $150.00 a week x 52 weeks = $7,800.00 Wage: Tips: 40 x $13.65/hour = $546.00 a week X 52 weeks = $28,392.00 $37.50/day x 5 days = $187.50 a week x 52 weeks = $9,750.00 Total of tips/wage: $27,674.40 Total of tips/wage: $38,142.00 [ 108 ] I turn now to the claimant’s evidence on the above issues. She denied that Mike Sr. had made such an offer.

She did recall what she called a discussion when Mike Rakis Sr. was “running out the door” - she didn’t say when it occurred but the sense of her evidence was that it was between August 2012 and before November 3, 2012, when she said she was panicking. She could not recall whether the discussion was at the end of a day shift or night shift.

The discussion related to her employment and she recalled Mike Sr. saying he could give her a few hours in the liquor or beer store but did not make her an offer in essence of alternative employment. [ 109 ] She said she was absolutely positive there was no meeting in his office to discuss a job in the liquor store. Nor did he tell her the pay in such a job would be higher - she recalled this. There was no conversation. No hours were discussed. No amount of money was discussed by which I understood an hourly rate.

She denied she had turned down such an offer which had never been made. [ 110 ] She did agree that the beer store job was far easier than her job as a waitress at Jacks. She knew in the Fall of 2012 what work the beer store (also called the liquor store - they are one and the same) entailed. She was asked in cross-examination why she had not on the above date when she said Mike was running out the door not in essence have a longer discussion with him about this position and responded; because he was leaving.

When asked why she had not later spoken to him about it, she answered that it wasn’t her line of work; she was at the time looking for a job within her line of work. I noted during the trial that at this point in her testimony, Ms. Rock became quite nasty in her demeanour and interrupted counsel in her cross-examination almost as if the suggestion she might work in the beer store was offensive to her. She did state in her testimony that had Mr. Rakis offered her I understood the liquor store job with in essence the pay she was earning as a waitress and similar terms, she would have taken it.

She also testified that Mike Sr. had never definitely assured her that she would have a job once the pub reopened. [ 111 ] She further testified that had the pub remained open after November, she would have continued working there. [ 112 ] Mike Riglietti, now the liquor store manager, testified for the defence. He recalled in May or June 2012 Mike Sr. discussed with him (he was then in charge of the store’s inventory control and not the manager) the prospect of giving Ms.

Rock a job during renovations in the store potentially with some staff scheduling responsibilities - and said he then felt it was a great idea and good for him. [ 113 ] Because of the view I take of this case, it is not really necessary for me to deal with all further evidence the parties have given save as it might relate to my finding on their credibility. Thus I now turn to some of the other evidence the parties gave. [ 114 ] Mr. Rakis said that after November 2012 and prior to the pub reopening, he would have discussed Ms. Rock’s earlier rejection of his alternate employment offer with his son Michael Jr.

When the pub was close to reopening, Jacks put an ad in Craigslist (see Exhibit 1, tab 3, May 30, 2013) and possibly in a paper asking people to apply in person. This Craigslist ad seems to have been modified in some unexplained way on July 15, 2013. Its title was “NEW BAR, servers and staff needed”. This ad states as follows:

Brand New and renovated JACK LONSDALES will be finally be opening noon this summer! Servers, Bartenders, Team Leaders and Front of House Managers part-time and full-time will be needed. If you are outgoing, genuine, able to multi task and love to communicate come apply in person on 15 th and Lonsdale to join our team! Experience in other social and public houses are a bonus. Location: North Vancouver, B.C. Compensation: Hourly + tips Principals only. Recruiters, please don’t contact this job poster. Please, no phone calls about this job!

Please do not contact job poster about other services, products or commercial interests. Attributes ======== (emphasis added) [ 115 ] Mr. Rakis also said that Jacks had put a sign in the pub front window after July 2013: “Opening Soon”. He could not recall or give the exact date on which this was done. Ms. Rock said she never saw it. [ 116 ] He did not believe that Ms. Rock (notwithstanding that she lived close by) had come in in person to complete an application or to seek as job including after the pub reopened. [ 117 ] He said everyone had to fill out an application; even former staff they had rehired.

The defendant called Mark Marter, Jacks bar manager who had been an employee at Jacks since 1988 - longer than Ms. Rock - who testified that he filled out an application form in 2013 prior to the pub reopening and returned to work when it did as did another former employee, one Brittany. He said he was not 100% sure he would be hired, but was pretty sure he would be. He first learned about the application from Mr. Rakis Sr. in August 2013. [ 118 ] Mike Sr. agreed in cross-examination that after the pub reopened, no one reached out to Ms.

Rock concerning the availability of a new job, but said in the same breath that Jacks had no reason not to take her back. In his direct evidence he said had she applied, he would have hired her and that he had rehired all former employees who had stayed to closing in November 2012 if they reapplied in 2013. At that point in time his son Michael Jr. was then in charge of staffing the pub. [ 119 ] Ms. Rock testified that she had seen the Craigslist ad. Initially she could not recall when she had first seen it when her daughter drew it to her attention, but then said it was on July 8, 2013.

She read it and said she did think the requirement to come in and apply in person applied to her. [ 120 ] But she said she immediately responded and sent an email on July 8, 2013 (Exhibit 1, tab 4) which states: Hello I’m still waiting to hear about an opening date and still interested in waitressing. I’m available, let me know. April Rock [ 121 ] She said this was not the first time she had told Jacks she was interested but it was her first email. She sent this email by herself or her daughter somehow pressing a button on the Craigslist ad.

Thereby she assumed hopefully according to her testimony that this response would go to Mike Sr. or the people who were hiring. [ 122 ] She did not receive a response until August 21, 2013 (Exhibit 1, tab 4) when Mike Jr. emailed her as follows: Hey April sorry have a million emails just deleting some and came across your email now.. We are hoping to open next Friday aug 30 if everything goes the way its supposed to. As of now we are ok on staff as we have hired many new staff that have been in the industry but I will keep you posted if we need anymore.

Please come by let us know what you think any changes or suggestions you may have. Hope to see you soon Thanks:) [ 123 ] There is no evidence in this case that the email address he then used was or was not the email address Mike Sr. would have used

or had available to use at Jacks at any earlier material time. [124] The fact that she received no response until August 21 suggests a better mode of communication ought to have been used by Ms.Rock to alert Mike Sr. of her than current interest in having a job. [125] On August 21 she understood Mike Jr. was to take over the pub. [126] She testified that she didn’t respond to the August 21 email as she assumed Jacks by then had all the staff they needed. She wasthen sick that her old job was lost.

August 21 was the first time that it was pretty well confirmed in her mind that she was not getting herold job back one that she was very happy with. She was never prior to this date told she would not be hired back or that she would be;she was never given a definite answer on being rehired. [127] She was asked in cross-examination if she had contacted the pub at all between July 8 and August 21. She responded she didn’tknow as she didn’t know the dates that she had gone in while the renovations were ongoing - and if it was before the July 8 email.

In herdirect evidence she testified that she had gone into the pub she estimated 6 to 12 times between January 1 and June 30, 2013 to check onthe progress of the renovations. [128] She was asked why she had not gone in as requested by the ad and suggested she had spoken to Mike Sr. by telephone and thesense of her evidence was that this was after July 8. Mike Sr. did not testify about such a telephone call nor was he cross-examined onpoint. [129] In her direct evidence she said she was never asked to fill out an application form before August 21.

In her cross-examinationshe said that on one visit to the pub - and no date was given - she asked Mike Sr. if she had to fill in an application for a job at the pub inessence when it reopened and he said “no; that we’re not there yet”. This evidence is somewhat ambiguous in my view and not a pointput to Mr. Rakis Sr. in cross-examination.

In cross-examination when asked about the Craigslist ad requirement that applicants apply inperson, she said she thought she probably went in after July 8 and the sense of her evidence was that the need for her to fill in anapplication (or not) was not on this visit answered. [130] I found the claimant’s evidence as to her dealings with the defendant after November 3, 2012 to the date the pub reopened inAugust 2013 to be often very vague.

My sense of her evidence is that on one hand she said she liked her old job and wanted it back, butcertainly between July 8 and the critical reopening date she seems not to have acted reasonably in securing it. The appearance of herevidence when considered as a whole is that she as a very senior staff member had an expectation that her old job was there, would bekept open and that there was some obligation on the defendant’s part to contact her and likely waive the requirement of a formalapplication and offer her old job back. [131] I find on all the evidence in this case that had Ms.

Rock done what the Craigslist ad requested and gone in and signed anapplication, which requirement I find was never waived in her case by the defendant, that more probably than not she would have beenrehired by the defendant by say August 1, 2013 - a date within the 12-month reasonable notice period and at her old job as a waitress withsimilar hours - something that Mike Sr. said he had proposed to her as early as September 2012 and which she had rejected. [132] For reasons that will become apparent, I do not intend to summarize the evidence in this case that relates to the other work theclaimant did beyond her work at the pub both before and after she was terminated in November 2013 nor her evidence as to her efforts tofind alternate employment in August 2012 or at any time thereafter with employers other than the defendant. [133] Both the claimant’s counsel and defendant’s counsel submit that credibility is an issue in this case.

The parties differ as to whatoccurred with respect to certain relevant events. I agree it is an important issue. CREDIBILITY: [134] It is convenient now to deal with the issue of credibility. Madame Justice Watchuk says this on point at para. 27 of Ostrow: [27] The law regarding the assessment of credibility was well summarized by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398: [186] Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides (Raymond v.

Bosanquet (Township) (1919), (SCC), 59S.C.R. 452, 50 D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity toobserve events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness'evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct andcross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie,and the demeanour of a witness generally (Wallace v. Davis (1926), 31 O.W.N. 202 (Ont. H.C.); Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as awhole and shown to be in existence at the time (Faryna at para. 356). [135] The well-known case of Faryna v.

Chorny referred to above in Ostrow encourages trial judges not to rely too strongly on thedemeanour of a witness or the fact that his or her evidence remains uncontradicted, but rather we should be concerned with whether theevidence of the witness is “consistent with the probabilities affecting the case as a whole”.

The test, if you will, is repeating at page 4 ofthe Quicklaw Report of the reasons as follows, and I quote: The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would

readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem.

In truth it may easily be self-direction of a dangerous kind. The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a di-vine insight into the hearts and minds of the witnesses.

And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can he tested in the particular case. [ 136 ] My overall finding on this fact, which I will explain in greater detail below, is that where the evidence of the parties differs, I find that I prefer that given by Mike Rakis Sr. I find that he is an honest and reliable witness. [ 137 ] I have already commented that at important times in Ms. Rock’s testimony, her evidence had a vague character to it.

At times her demeanour was such that she became angry particularly when cross-examined and the reasonableness of her actions was challenged by counsel. [ 138 ] There was a fundamental inconsistency in her evidence that she loved her job at Jacks and wanted it back, but I find did not act reasonably in pursuing it in 2013 when she knew an “in person” application was required by going in on or about July 8 when she says she first saw the Craigslist ad.

She lived within walking distance of Jacks. [ 139 ] I find I do not believe her evidence that Mike Rakis Sr. did not offer her a job in the liquor store in or about September 2013. Her position does not make sense. His does. Hers is not in my view in accordance or consistent with the preponderance of probabilities that surrounded the conditions existing in September 2012. Mr. Rakis’ evidence on point does make sense. Ms. Rock was a very experienced waitress and a good long-standing employee - the very kind of person that any small business values.

On an ice hockey team, by way of an example, such players are often called veterans and over and above their skill level, such players are often valued by the team management for their leadership ability and steadying influence on younger players. Mr. Rakis could not offer her her old job after the pub closed for renovations. Ms. Rock understood this. I find he offered her what he could and with a proviso of getting her old job (or something akin to it) back when the renovations were completed and the pub reopened. All the evidence in this case supports this event having occurred as he described it.

He had every reason to want to keep her on board in some way. His evidence is in accordance with the preponderance of probabilities at the time. [ 140 ] During the course of argument, I brought the case of Chapple v. Umberto Management Ltd. , 2009 BCCA 571 to the attention of counsel and asked whether or not the admitted fact the claimant had not declared certain income for tax purposes including all housekeeping and landscaping income, rental income, and most notably $34,335.31 of tips in 2009, 2010 and 2011 should in essence have any bearing on my assessment of her credibility in this case.

Both counsel agreed to address this point in their written submissions. [ 141 ] The defendant in closing argument submits that the claimant’s lying to CRA about her true income when she had kept she said accurate records of her tips in these years and might have declared the correct amount is a relevant factor. It is submitted she is a person who not only is prepared to lie, but certify the lie when she thinks it serves

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