Streng v. Northwestern Utility Construction Ltd. Date:, 2016 BCPC 161

Citation: Streng v. Northwestern Utility Construction Ltd. Date: 20160527 2016 BCPC 0161 File No: 1547548 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CRAIG STRENG CLAIMANT AND: NORTHWESTERN UTILITY CONSTRUCTION LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Appearing on their own behalf: C. Streng Counsel for the Defendant: G. Wright Place of Hearing: Prince George , B.C. Date of Hearing: April 12, 2016 Date of Judgment: May 27, 2016 INTRODUCTION

[ 1 ] Mr. Craig Streng was a lineman in the employ of Northwestern Utility Construction Ltd. (“Northwestern”) for approximately four years. On July 14, 2015, Northwestern terminated his employment. [ 2 ] Mr. Streng sued Northwestern for damages for failure to give adequate notice of the termination of his employment or compensation in lieu of notice. [ 3 ] Northwestern said Mr. Streng was insubordinate, conflicted, and insolent and it therefore had cause to terminate his employment. PROCEDURAL BACKGROUND [ 4 ] Mr. Streng filed his Notice of Claim for damages for wrongful dismissal on July 27, 2015.

Northwestern filed a Reply that Mr. Streng was dismissed for cause on August 10, 2015. This is the position it maintained up to the end of trial. Northwestern did not particularize the cause upon which it relies in defence of the Claim. [ 5 ] The parties attended a Settlement Conference on September 29, 2015, at which time Judge Solomon ordered this matter be set down for a two day trial.

Judge Solomon also ordered the parties exchange all relevant documents and summaries of witness statements by October 28, 2015. [ 6 ] The trial was scheduled to proceed on April 11 and 12, 2016. [ 7 ] The parties attended a pretrial conference on February 19, 2016. Mr. Sims attended on behalf of Northwestern and Mr. Streng appeared at his own behalf. [ 8 ] The first day of trial, April 11, 2016, was adjourned for lack of court time. The trial commenced and completed on April 12, 2016. ISSUES [ 9 ] The following issues arise in respect of the claims and defences advanced in this proceeding: 1.

Did Northwestern have just cause to dismiss Mr. Streng from its employ? 2. If Northwestern did not have just cause to dismiss Mr. Streng without notice, what is the measure of his damages? CHRONOLOGY OF EVENTS [ 10 ] Northwestern is a registered British Columbia company whose principal owner is Leonard Sims. It has its business facilities at 7961 Ottway Road, Prince George, B.C., and provides cable installation services to telecommunication companies. It is not clear whether Northwestern shares this facility with Mr. Sims’ other businesses.

The facilities have been described as containing offices for Northwestern’s owner, Leonard Sims; the office manager, Dan Morgan; the safety advisor, Simon Hall; and the safety supervisor, Nicole, whose last name is unknown. The facility includes a yard where various equipment is parked as well as a Seacan (a metal storage container), sometimes used as a site office. [ 11 ] Mr. Streng is 55 years old. He worked as a lineman for Northwestern from January 3, 2012, until July 13, 2015, when Northwestern terminated his employment. Mr.

Streng has worked as a lineman and in the telecommunications business for much of his career. Prior to accepting employment with Northwestern, Mr. Streng worked for Telus for 23 years followed by employment with Proline, a now defunct company. [ 12 ] There is no written contract of employment between Mr. Streng and Northwestern. [ 13 ] Northwestern paid Mr. Streng an hourly wage for only those hours actually worked. If Northwestern had no work for him on any particular day, Mr. Streng did not work and did not get paid. He used his personal pickup truck to travel to and from work and to various jobsites.

He paid his work-related expenses up front and Northwestern reimbursed him for those expenses it approved. When working out of town, Mr. Streng received a “living out” allowance of $60 per day. [ 14 ] Mr. Streng was recruited to work for Northwestern by his long term friend Dan Morgan (“Mr. Morgan”). In the past, Mr. Streng and Mr. Morgan worked as linemen for Telus. After a number of years, both took voluntary settlement packages and left Telus’ employ. Mr. Morgan joined Northwestern in 2009 and Mr. Streng in 2012. [ 15 ] Initially, both Mr. Morgan and Mr. Streng worked for Northwestern as linemen.

At some point Mr. Morgan suffered a work related injury and assumed the duties and responsibility of office manager. Mr. Morgan was responsible for finding cabling work for Northwestern’s two linemen, Mr. Streng and John Ferch (“Mr. Ferch”). [ 16 ] Mr. Streng worked in a two-person team laying cable with Mr. Ferch. Mr. Streng was the titular field supervisor although he and Mr. Ferch preformed the same duties. The linemen utilized Northwestern’s five ton cable laying bucket truck (the “Cable Truck”) in the course of their duties.

The Cable Truck has a big boom with a bucket which extends upward to facilitate access to power poles. The bucket projects in front of the Cable Truck when the boom is down while driving. [ 17 ] On Monday, July 13, 2015, Mr. Streng arrived at work in his pickup truck with his dog. He anticipated returning to Fort St. John to complete a job for Shaw Cable on which he and Mr. Ferch had been working the previous week. The morning began with Mr. Streng submitting his expenses from the previous week, including a $6.00 receipt for water. Mr. Morgan refused to approve this expense because Mr.

Streng received a living out allowance which, in his view, more than compensated him for this item. Mr. Morgan

said, “You pay for your own fucking water. You have expenses. I am giving you money already to pay for your water.” Mr. Streng was upset by Mr. Morgan’s refusal to approve the water expense. He thought Mr. Morgan was being cheap and told him so. Mr. Streng and Mr. Ferch were working on one of the hottest weeks of the year far from town and they needed water. Mr. Streng thought Mr. Morgan unreasonable in denying this expense, but they agreed to disagree. This encounter, however, started the work day on a sour note. [ 18 ] Mr. Streng and Mr.

Ferch loaded the Cable Truck with materials and readied themselves to head to Fort St. John. Mr. Morgan told Mr. Streng and Mr. Ferch he had a day’s work for them in town. Mr. Morgan had lined up some pole work for Telus in Prince George. Mr. Streng argued they had work in Fort St. John which they had started and yet to complete. Because they were only paid if they worked, it made no sense for the linemen to sacrifice an entire week of work in Fort St. John for a one day job in Prince George. [ 19 ] Mr. Morgan said when he arrived at work early on July 13, 2015, he had no work lined up in Fort St. John. As Mr.

Streng and Mr. Ferch wanted to return to Fort St. John, he sent emails to “Chris” and “Eric” at Shaw. Eric was Shaw’s engineer. Mr. Morgan said he called Mr. Streng on his cell phone while Mr. Streng was still in the yard. They discussed his returning to complete the job in Fort St. John. The linemen hadn’t finished the job the previous week because they had run out of cable. Mr. Morgan says he “sort of agreed” the lineman could return to Fort St. John. Although he had no confirmation as to the availability of work, Mr.

Morgan was willing to let the linemen go in anticipation that by the time they arrived in Fort St. John he would have work in place for them. Mr. Morgan says this is something he usually does as it was his practice to try to keep everyone happy. He was pretty good at getting work but would “take the brunt of it if it didn’t happen.” Mr. Streng said that on the morning of July 13, 2015, Mr. Morgan reluctantly agreed to the linemen returning to Fort St. John. [ 20 ] Mr. Streng and Mr. Ferch left Northwestern’s yard. Mr. Ferch was driving the Cable Truck. Mr.

Streng followed him in his personal pickup truck with his dog in the box. Mr. Morgan returned to his office. Both linemen believed they had permission to travel to Fort St. John to complete the job they had been working on for Shaw the previous week. [ 21 ] Mr. Morgan claims when he called Mr. Streng on the morning of July 13, 2015, to tell him the linemen could return to Fort St. John, Mr. Streng and Mr. Ferch were still in Northwestern’s yard. Mr. Streng told him, “Fuck off you little asshole, I can get out and work anytime,” and hung up. Mr. Morgan immediately called back and directed Mr.

Streng to park the trucks. Mr. Streng replied, “Go fuck yourself” and hung up. Mr. Morgan says after he ordered Mr. Streng to “park the trucks,” Mr. Streng and Mr. Ferch left the yard with the Cable Truck. [ 22 ] Mr. Streng unequivocally denies any such telephone call or conversation took place. He says Mr. Morgan told him he had telephoned “Chris” at Shaw and confirmed there was work in Fort St. John, and that he and Mr. Ferch were going to Fort St. John. Since Mr. Streng had permission to do what he wanted to do, it made no sense for him speak to Mr. Morgan in an offensive manner. Mr. Streng also denies Mr.

Morgan directing him to “park the trucks”. Near Miss Incident [ 23 ] CN Railway tracks run in front of Northwestern’s facilities. There is a semi-controlled crossing protected by lights and bells close to Northwestern and visible from its yard. When Mr. Ferch approached the crossing in the Cable Truck, a train was oncoming. He inadvertently stopped the Cable Truck too close to the crossing and the bucket overhanging the front of the truck encroached upon the tracks. The train blew its whistle and Mr. Ferch backed the truck away from the tracks.

The train passed without incident. [ 24 ] This event was witnessed by Northwestern’s Safety Advisor, Simon Hall (Mr. Hall), whose office overlooked the railway tracks. It was not witnessed by Mr. Morgan whose office faced the opposite direction. Mr. Hall characterized this incident as a “near miss incident”. It was reported to Mr. Morgan which initiated phone calls to Mr. Streng to tell him to turn around and return to the yard. [ 25 ] Mr. Streng was directly behind Mr. Ferch in his pickup. All he saw was Mr. Ferch stop the Cable Truck at the crossing, back up and the train pass. Mr.

Streng did not consider this a “near miss incident” or reporting it as such. He heard the train whistle, but this happened 15 times a day at that crossing. He did not notice anything unusual. Mr. Ferch, however, did consider this a near miss incident. [ 26 ] After the train passed, Mr. Streng and Mr. Ferch continued on their way to Shaw to pick up more cable before making their way to Fort St. John. Shaw had its facilities on Victoria Street in Prince George, about a 15 minute drive from Northwestern. While on Ottway Road, Mr. Streng began receiving telephone calls on his cell phone from Mr. Morgan.

As he was driving and had no hands free connectivity, Mr. Streng did not answer these calls immediately. On one occasion he quickly told Mr. Morgan he was driving and would call him when he found a place to pull over. Mr. Morgan continued to call Mr. Streng’s cell phone. When he reached Ospika Boulevard, Mr. Streng found a safe place to pull over and returned Mr. Morgan’s call. It went directly to Mr. Morgan’s voice mail. Mr. Streng left a message saying he would call Mr. Morgan as soon as he arrived at Shaw. Mr. Morgan continued to call Mr. Streng’s cell phone while Mr.

Streng drove the remaining distance to Shaw. [ 27 ] Meanwhile, Mr. Morgan also called Mr. Ferch, who did answer his cell phone. Mr. Morgan told him to turn the Cable Truck around, which he did. At some point Mr. Ferch passed Mr. Streng travelling in the opposite direction. Mr. Streng did not know why Mr. Ferch had turned around so he continued on to Shaw. When he arrived at Shaw, Mr. Streng called Mr. Morgan who told him, “Get your ass back to the office, now!” Discipline Letter [ 28 ] Mr. Streng returned to Northwestern as directed. He walked into the office between 9:00 and 9:30 a.m. Mr.

Morgan had a piece of paper in his hand. Mr. Streng says Mr. Morgan threw the paper on the table in front of him and told him, “Sign this.” Mr. Streng responded, “I’m not signing shit, what have I done?” Mr. Morgan said, “You’re going home, go home now, you’re been suspended.” Mr. Streng, responded, “This is bullshit, what have I done?” Mr. Morgan told Mr. Streng he would get back to him. [ 29 ] The paper Mr. Morgan was holding was a letter of discipline (the “Discipline Letter”) from Northwestern to Mr. Streng because

of his conduct earlier that day. Mr. Ferch was present when Mr. Morgan presented Mr. Streng with the Discipline Letter. Mr. Ferch observed Mr. Morgan hand, not throw, Mr. Streng the Discipline Letter. He heard Mr. Morgan direct Mr. Streng to sign the letter and tell Mr. Streng he was being suspended. Mr. Streng was upset, got up and walked out. Mr. Hall and Nicole were also present at Northwestern at this time. [ 30 ] Mr. Morgan says by the time Mr. Streng returned to Northwestern yard, he had the Discipline Letter written out for insubordination for swearing. Mr. Morgan claims he did not tell Mr.

Streng he was suspended and the Discipline Letter did not say otherwise. [ 31 ] Mr. Streng did not read the discipline letter then or since. He was angry, but did not yell at Mr. Morgan or engage in further discussions with him about the Discipline Letter. He told Mr. Morgan to do up his time sheet for two hours, and left the office. Mr. Streng went to the yard and got into his truck. Mr. Morgan says he knew that Mr. Streng was upset and that he was going to his pickup. In the interim, Mr. Morgan told Mr. Ferch there was no work for him that day and he should go home. Mr.

Ferch was not suspended, but he could not work because he had no other lineman with whom he could work with. For safety reasons, linemen have to work in teams. [ 32 ] Mr. Ferch went into the yard to speak to Mr. Streng, who was in his pickup heading out. Mr. Streng stopped and got out of the pickup to speak to Mr. Ferch. They talked about Mr. Streng’s suspension and the fact they were going home and didn’t know when they were going to work again. Mr. Streng told Mr. Ferch he would call him. The Outburst [ 33 ] Meanwhile, Mr. Morgan and Mr. Hall approached Mr. Streng and Mr.

Ferch while they were still in the yard, standing near Mr. Streng’s pickup, talking. Mr. Streng was agitated and angry. He believed Mr. Morgan came into the yard with a witness in tow to provoke him into saying something inappropriate, which is precisely what happened. Mr. Morgan says he went out to the yard because he “didn’t know if anything was going to escalate and to protect the company property.” Mr. Hall says he accompanied Mr. Morgan to ensure things did not escalate. [ 34 ] Mr. Streng admits in the heat of the moment he said some “unflattering things” to Mr. Morgan. He acknowledges he used profanity. Mr.

Hall quotes Mr. Streng as saying to Mr. Morgan, “You don’t do a fucking thing. You just sit up in the office all fucking day. There’s lots of work out there. I’m going to leave and take the work with me. I can get another job tomorrow.” Mr. Streng accused Mr. Morgan of having “short man syndrome” and demanded to know why he was “throwing him under the bus”. [ 35 ] Mr. Streng’s outburst went on for five minutes or so in the presence of Mr. Ferch and Mr. Hall. Mr. Streng describes his remarks as “mudslinging”, Mr. Ferch describes them as arguing, and Mr. Hall describes them as abusive. Mr.

Morgan says he did not respond to Mr. Streng, but rather let him “ramble on...I have pretty thick skin. It didn’t bother me too much.” According to Mr. Ferch, Mr. Morgan and Mr. Streng regularly used profanity when speaking to each other. [ 36 ] Mr. Ferch recalls Mr. Morgan and Mr. Streng arguing and Mr. Hall trying to cool everyone down. Although Mr. Streng was visibly angry he was not yelling at or physically threatening to Mr. Morgan. Eventually, Mr. Morgan asked Mr. Streng, “Is that all you have to say?” and Mr. Streng replied, “There is no more to say.” Mr. Hall directed Mr.

Streng to leave the property because he was suspended. He told Mr. Ferch there was no work for him that day and he too should go home. Upon receiving these directives, Mr. Streng and Mr. Ferch left the yard. [ 37 ] The next day, Mr. Morgan telephoned Mr. Streng to inform him his employment was being terminated. He instructed Mr. Streng to report to work and bring in his keys and ID. Mr. Streng complied with this instruction. He asked the reason for his termination, and was provided a letter dated July 14, 2015, signed by Mr. Morgan on Northwestern letterhead (the “Termination Letter”).

This letter was entered into evidence as Exhibit 1. It states: This is to inform you that your employment has been terminated, effective immediately. Your position has been terminated as a result of your conduct on July 13, 2015. On July 13, 2015 you refused to follow a direct order from your manager and proceeded to take company property off of the employer’s premises. This act of insubordination nearly caused an accident on the railway tracts with a CN Rail train and placed yourself, your co-worker and the public in harm’s way.

During which you stated that you were going to take Northwestern Utility Construction work and get a job elsewhere (conflict of interest). This conversation was with the company’s manager Dan Morgan and witnessed safety advisor Simon Hall. In accordance with the prevailing employment law, your position has been terminated with cause, there is no requirement for our company to give you notice, or termination pay. [ 38 ] When he returned to Northwestern to hand in his keys and ID, Mr. Morgan, Mr. Ferch, and Mr. Hall were present. Upon receiving and reading the Termination Letter, Mr.

Streng believed he was being accused of the “near miss incident.” He told Mr. Morgan it was Mr. Ferch who was driving the Cable Truck. Mr. Morgan did not want to hear anything Mr. Streng had to say about the matter. Mr. Morgan said in cross-examination that at the time, he didn’t know who was driving the Cable Truck. [ 39 ] No one at Northwestern spoke to Mr. Ferch about the near miss incident. When Mr. Streng asked him why, Mr. Morgan said, “I think if we knew at the moment, instead of laying him off first, we might have done something about it. But he was laid off prior to us knowing he was actually driving.

You were fired. John was laid off before we actually knew John was driving.” I understood “John” to mean “John Ferch.” [ 40 ] Mr. Hall testified that he thought the near miss incident at the train tracks would certainly have to be reported and that report was to be initiated by Mr. Streng, who was the more senior member of the two-man work crew. Mr. Hall says the near miss incident

was quite severe because it could impact the general public and workers and damage the company property. Northwestern neverreceived any communication from CN about the near miss incident. [41] The day he received the Termination Letter, Mr. Streng tried to approach Mr. Sims, who refused to see him. When Mr. Strengasked Mr. Morgan in cross-examination why he was fired, Mr. Morgan said it was as set out in the Termination Letter, forinsubordination, not following his directive to park the truck. Mr. Morgan said Mr. Streng ought to have stopped Mr.

Ferch fromremoving the Cable Truck from the yard and the “near miss incident” was the result of his failure to do so. [42] Until July 13, 2015, Mr. Streng had never been suspended, disciplined or even spoken to about any previous wrongdoing atwork. Mr. Streng believes his termination was more the result of Mr. Morgan having a personal grudge against him than anything work-related. For many years, Mr. Morgan and Mr. Streng had been close friends. This friendship disintegrated shortly before Mr. Streng’stermination when Mr. Streng and Mr. Ferch approached Mr. Sims to advocate for a new Cable Truck. Mr.

Morgan had been tasked withsourcing a new Cable Truck for two years. The existing Cable Truck was constantly breaking down causing Mr. Streng and Mr. Ferchto lose work. Mr. Streng, Mr. Ferch, Mr. Morgan met with Mr. Sims about this issue. Mr. Sims chastised Mr. Morgan for not doing hishomework to acquire a new Cable Truck. Mr. Streng believes this act of going over Mr. Morgan’s head to complain to Mr. Sims directlyprecipitated his falling out with Mr. Morgan. [43] Mr. Morgan disputes that Mr. Sims chastised him for failing to source a new Cable Truck. Mr. Ferch, who was present duringthe meeting, confirms Mr.

Sims was agitated at Mr. Morgan, who in turn was agitated with the linemen for going over his head andspeaking to Mr. Sims. Mr. Morgan does not disagree that he and Mr. Streng’s working and personal relationship had deteriorated in themonths leading up to Mr. Streng’s termination. Mr. Ferch also observed this decline in their relationship. [44] Mr. Streng was denied any compensation, severance, notice, or opportunity to plead his case. He sought help from theEmployment Standards Board which advised him it did not handle wrongful dismissal cases. Because Northwestern claimed he wasterminated for cause, Mr.

Streng was ineligible for Unemployment Insurance. Mr. Streng’s situation was precarious. There were noother opportunities locally for a lineman. Mr. Streng had no recent work history upon which he could rely as Northwestern claimed tohave terminated his employment for cause and his previous employer, Proline, was no longer in business. Mr. Streng felt he was leftwithout a work history for six years. [45] On August 2, 2015, three weeks after his termination, Mr. Streng obtained a job as a labourer with CMH Underground Utilities(“CMH”) in Prince George. Eventually, CMH purchased a cable placing truck and Mr.

Streng again began working for CMH as alineman. This is a job he has to this day. Mr. Streng earns $35 per hour but does not receive any benefits. [46] When Northwestern terminated Mr. Streng, they were left with only one lineman, Mr. Ferch. As linemen have to work in pairsfor safety reasons, Mr. Ferch could not work. Unable to attract another lineman, Northwestern eventually had to lay off Mr. Ferch, whoalso went to work for CMH.

Northwestern was left with no linemen and lost their cable laying contracts with its two largest customers,Telus and Shaw. [47] CMH seized the [48] opportunity and purchased a cable placing truck and put Mr. Streng and Mr. Ferch to work as linemen providing services forNorthwestern’s former customers. Mr. Streng denies that he solicited Telus or Shaw to divert their business from Northwestern to CMH. Having fired Mr. Streng and laid off Mr. Ferch, Northwestern had no linemen to provide cable laying services. Neither party ledevidence as to when Mr.

Ferch was laid off and joined CMH. [49] Northwestern put into evidence a book of documents which included Mr. Streng’s T4 statements from 2015. This booklet wasmarked Exhibit 2 in the trial. Mr. Streng earned $38, 027.60 in his 6½ months of employment with Northwestern Utility Construction in2015. ANALYSIS Did Northwestern have just cause to dismiss Mr. Streng from its employ? [50] The law recognizes the importance of work and the vulnerability of employees. In an action for wrongful dismissal, all anemployee needs to prove is the fact of his employment and the dismissal.

Thereafter, the employer bears the burden of proving justcause on a balance of probabilities: McKinley v. BC Tel, 2001 SCC 38 , [2001] 2 S.C.R. 161, at paragraph 26. [51] It is uncontested that Mr. Streng was an employee of Northwestern and that Northwestern terminated his employment on July14, 2015, without notice or compensation in lieu of notice. [52] Northwestern now bears the heavy onus of showing cause for terminating Mr. Streng’s dismissal: Staley v. Squirrel Systems ofCanada, Ltd., 2013 BCCA 201 , paragraph 19, affirmed, 2013 BCCA 201 . [53] At trial, Northwestern advanced three causes for terminating Mr.

Streng’s employment: insubordination, conflict of interest, andinsolence. [54] In McKinley, the Supreme Court held that cause in assessing cause, the courts must take a contextual approach. There must beproportionality between the employee’s misconduct and the sanction imposed. McKinley dealt with employee dishonesty, but theprinciples established in that case apply to all forms of misconduct, including insolence and insubordination. [55] In Steel v. Coast Capital Savings Credit Union, 2015 BCCA 127 , Mr.

Justice Goepel for the majority and JusticeMacDonald in dissent agreed that McKinley “reflected a watershed change in the law governing just cause dismissal.” Mr. JusticeGoepel stated at paragraph 28:

[28] The governing principle from McKinley is that a trial judge is tasked with determining whether, in the totality of thecircumstances, the alleged misconduct was such that the employment relationship could no longer viably subsist: McKinley at paras. 56-57. However, the inherent value of the job to the employee need not be expressly considered in determining whether there was just causeto dismiss.

Put differently, the trial judge is not obligated to formally balance the length and quality of service with the nature andseverity of the misconduct in determining whether there was just cause to dismiss, though it may be appropriate on the facts of aparticular case to engage in just such an analysis. [29] The framework adopted by the Court in McKinley focuses on the nature and severity of the misconduct in relation to its impacton the employment relationship; it is not a balancing exercise between the value of the employment to the individual and the severity ofthe misconduct. [56] The Ontario Court of Appeal summarized the McKinley approach in Dowling v.

Ontario (Workplace Safety and InsuranceBoard), (ON CA) at paras.49-52: [49] Following McKinley, it can be seen that the core question for determination is whether an employee has engaged in misconductthat is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanctionimposed for misconduct is to be proportional -- dismissal is warranted when the misconduct is sufficiently serious that it strikes at theheart of the employment relationship.

This is a factual inquiry to be determined by a contextual examination of the nature andcircumstances of the misconduct. [50] Application of the standard consists of: a. determining the nature and extent of the misconduct; b. considering the surrounding circumstances; and, c. deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response). [51] The first step is largely self-explanatory but it bears noting that an employer is entitled to rely on after discovered wrongdoing, solong as the later discovered acts occurred pre-termination. See Lake Ontario Portland Cement Co. v.

Groner, (SCC), [1961] S.C.R. 553. [52] The second step, in my view, is intended to be a consideration of the employee within the employment relationship. Thus, theparticular circumstances of both the employee and the employer must be considered. In relation to the employee, one would considerfactors such as age, employment history, seniority, role and responsibilities.

In relation to the employer, one would consider such thingsas the type of business or activity in which the employer is engaged, any relevant employer policies or practices, the employee’s positionwithin the organisation, and the degree of trust reposed in the employee. [53] The third step is an assessment of whether the misconduct is reconcilable with sustaining the employment relationship. Thisrequires a consideration of the proved dishonest acts, within the employment context, to determine whether the misconduct issufficiently serious that it would give rise to a breakdown in the employment relationship.

Insubordination [57] An employee has an implied obligation to obey the lawful and reasonable directions of his employer within the scope of hisemployment contract. Willful disobedience can justify

summary dismissal in some circumstances. Even so, rarely will one instance ofinsubordination suffice to fire an employee summarily unless it is of a nature which amounts to a repudiation of the employment contractor a fundamental term of the contract: Staley. [58] The insubordinate act which Northwestern says justifies dismissing Mr. Streng is contested. Mr. Morgan says Mr. Strengdisobeyed his direct order to “park the trucks” while the linemen were still in the yard before the near miss incident. In its TerminationLetter of July 14, 2015, Northwestern says it was dismissing Mr.

Streng for insubordination arising from his refusal to follow a directorder from his manager and taking company property off of the employer’s premises. When Mr. Streng asked Mr. Morgan in cross-examination why he was fired, Mr. Morgan replied: What is in the letter: insubordination, not following a directive to park the truck. It left the yard which caused a near miss [incident]…Iasked you to park the truck with the phone. You didn’t tell John to park the truck, it left the yard and nearly caused an accident. [59] In assessing Mr. Streng and Mr. Morgan’s competing versions of events, Mr.

Wright, Counsel for Northwestern, submits thatMr. Morgan, like Mr. Hall, has no personal interest in the outcome of this litigation. He argues that Mr. Morgan and Mr. Hall aresimply employees of Northwestern, they do not own the company and “whatever happens in this lawsuit, they are going to have theirjobs and carry on.” Yet, at the outset of the proceedings, Mr. Wright said Mr. Morgan was the employer’s representative and thereforeought to be exempt from the general order excluding witnesses. Moreover, neither Mr. Morgan nor Mr. Hall testified he had no personalinterest in the outcome of the proceedings.

They were never asked that question and there is no evidence one way or another to indicatewhether an adverse ruling may have any repercussions on Mr. Morgan or Mr. Hall’s employment or financial interests. It is trite lawthat absence of evidence is not evidence of absence. Clearly, Mr. Streng’s dismissal had an adverse financial impact on theNorthwestern because it lost its cabling contracts with Shaw and Telus. Also, there is evidence that Mr. Streng and Mr. Morgan had afalling out prior to Mr. Streng’s termination. I cannot dismiss the possibility that Mr. Morgan harbours some animus toward Mr. Streng.

[ 60 ] In considering the evidence as a whole, I reject Mr. Morgan’s version of events leading up to the near miss incident. It makes no sense whatsoever for Mr. Streng to unleash a torrent of profanity on Mr. Morgan or threaten to leave and take work with him at this juncture. I find Mr. Morgan authorized the linemen to go to Fort St. John which is why they readied the Cable Truck, left the yard and headed to Shaw to pick up additional cable. I accept the evidence of Mr. Streng, Mr. Hall, and Mr. Ferch that it was only after the near miss incident that Mr. Morgan called Mr. Streng and Mr. Ferch and directed them to return to Northwestern’s yard. [ 61 ] In

summary on this issue, I do not believe that when Mr. Morgan called Mr. Streng to tell him the linemen could go to Fort St. John that Mr. Streng said to him, “Fuck off you little asshole, I can get out and work anytime,” or any similar comment. I do not believe Mr. Morgan called him back and told him to park the trucks and I do not believe Mr. Streng responded with, “Go fuck yourself.” These were words, if said at all, were said later in the yard after Mr. Morgan told Mr. Streng he was suspended and ordered him to go home.

Northwestern’s justification of insubordination is stillborn as I find no such misconduct occurred. [ 62 ] The Termination Letter indicates Mr. Morgan believed it was Mr. Streng who was driving the Cable Truck at the time of the near miss incident. Mr. Morgan says he only learned later it was Mr. Ferch who was driving the Cable Truck. Mr. Hall, who witnessed the incident, did not see who was driving the Cable Truck. He did, however, see Mr. Streng’s pickup truck was behind the Cable Truck at the railway crossing. There was no evidence led at trial to indicate why Mr. Morgan thought Mr. Ferch was driving Mr.

Streng’s pickup. [ 63 ] Northwestern now takes the position that even if Mr. Ferch was driving the Cable Truck at the time of the near miss incident, Mr. Streng is still responsible because he allowed Mr. Ferch to remove the Cable Truck from the yard in the first instance. There is no suggestion that Mr. Ferch was not competent or ordinarily permitted to drive the Cable Truck. Blaming Mr. Streng for the near miss incident is as illogical as it is unfair. [ 64 ] Northwestern also relies on Mr. Streng’s failing to immediately file a near miss incident report. At the time of the near miss incident, Mr.

Streng was in his pickup truck stopped behind the large Cable Truck. He did not have Mr. Hall’s privileged perspective of the unfolding events. All Mr. Streng observed was Mr. Ferch back up and the train pass. Northwestern argues that Mr. Hall, the employer’s safety advisor, had no responsibility to file a near miss incident report with respect to something he personally witnessed. Mr. Hall says because Mr.

Streng was the field supervisor, it was his responsibility to file this report, even though he did not personally observe anything which he considered a “near miss incident”. [ 65 ] When the linemen returned to the yard upon being instructed to do so, neither Mr. Morgan nor Mr. Hall nor anyone else mentioned the near miss incident to Mr. Streng or Mr. Ferch. Mr. Streng first learned of the incident in the Termination Letter. Mr. Ferch continued to work for Northwestern after Mr. Streng’s termination for some undisclosed period. At no time did anyone on behalf of Northwestern mention this near miss incident to Mr.

Ferch or ask him to file a near miss incident report prior to his ultimate departure. [ 66 ] There is no evidence whether Northwestern’s safety supervisor, Nicole, witnessed or reported the incident. Northwestern did not put into evidence any documentation setting out its policies with respect to near miss incidents in general or the near miss incident which forms in part of its justification for Mr. Streng’s termination. [ 67 ] I find the near miss incident did not justify Mr. Streng’s termination, in whole or in part. Mr.

Streng did not cause the near miss incident nor was he given an opportunity to report the incident. In my view Northwestern grasped upon Mr. Streng’s failure to file a near miss report in desperation when it learned Mr. Streng was not driving the Cable Truck at the time of the incident. If this is one of Northwestern’s grounds for just cause it is without merit. I do not find Mr. Streng’s failure to file a near miss incident report in the circumstances constitutes employee misconduct. Conflict Of Interest [ 68 ] Northwestern indicates in its Termination Letter that Mr.

Streng was acting in a conflict of interest when he said could take the work with him and get work anywhere. There is no evidence of Mr. Streng plotting to do so or even speaking to Northwestern’s customers about where their work should go. These words were spoken in his emotionally charged interaction with Mr. Morgan in the yard prior to his ultimate departure from Northwestern. Mr. Streng and Northwestern had no written contract or any enforceable non- solicitation or non-competition agreement which would survive his dismissal. When Northwestern terminated his employment on July 14, 2015, Mr.

Streng’s duty of loyalty ended. I find nothing wrong with Mr. Streng encouraging his new employer, CMH, to acquire a cable laying truck so he could return to working as a lineman. Northwestern lost its contracts with Telus and Shaw because it had no linemen to service them. I find that Mr. Streng was simply blowing off steam when he said he could take the work elsewhere. To the extent Northwestern relies on Mr. Streng’s alleged conflict of interest as cause for his dismissal, I find it without merit. Insolence [ 69 ] Counsel for Northwestern argues Mr.

Streng’s dismissal was justified because of his protracted tirade against Mr. Morgan in the presence of Mr. Hall and Mr. Ferch just prior to his ultimate departure from Northwestern’s yard on July 13, 2015. This incident, counsel argues, damaged the employment relationship beyond repair. [ 70 ] Angry outbursts by an employee against a supervisor are generally characterized as insolence. In Henry v. Foxco, 2004 NBCA 22 , Robertson J.A., distinguishes insubordination from insolence.

He states at paragraph 76: [76] ...Commentators note the tendency of courts to employ the terms insubordination and insolence interchangeably, yet they remain distinct categories of misconduct. In the reasons that follow, insubordination means an employee’s intentional refusal to obey an employer’s lawful and reasonable orders. Insolence means an employee’s derisive, contemptuous or abusive language, generally directed at a superior... [Citations Omitted] [ 71 ] Courts have found just cause for

summary dismissal where an employee has engaged in insolent misconduct.

[ 72 ] Henry v. Foxco dealt with a workplace confrontation involving a single incident of insolence in which the employee became loud and abusive towards his supervisor. The majority for the New Brunswick Court of Appeal overturned the trial judge’s finding the misconduct warranted

summary dismissal. Robertson J.A. identified three circumstances in which a single insolent act will justify

summary dismissal: [111] A review of the jurisprudence leads me to conclude that a single incident of insolence will justify

summary dismissal of an employee in one of three circumstances: (1) the employee and superior are no longer capable of maintaining a working relationship; (2) the incident undermined the supervisor’s credibility in the workplace and, correlatively, his or her ability to supervise effectively; or (3) that because of the incident the employer suffered a material financial loss, a loss of reputation or its business interests were seriously prejudiced. I confess that these three possibilities do not constitute discrete tests to be applied independently of one another.

They may overlap and other exceptional circumstances may exist: see generally Ellen E. Mole, The Wrongful Dismissal Handbook (Toronto: Butterworths, 1997) at pp. 75-76. [ 73 ] Justice Robertson describes a spectrum of employee misconduct ranging from dishonesty at the high end and insolence at the low end. He states at paragraphs 77 to 79: [ 77 ] In short, insubordination and disobedience are equivalents; insubordination and insolence are not. [ 78 ] In my view, the law should not weld together distinct categories of misconduct.

Consider the following four traditional categories of misconduct: (1) dishonesty; (2) disobedience (insubordination); (3) incompetence; and (4) insolence. As is apparent, some categories are inherently or intuitively more serious than others. For example, dishonesty is usually regarded as the most serious of allegations of employee misconduct because it involves a deliberate act of wrongdoing that is clearly prejudicial to the employer’s financial and business interests.

Yet within the category of dishonesty, there are four sub-categories with some being seen as more serious than others: theft, fraud, misappropriation and false statements. In McKinley , the Supreme Court observed that the first three sub-categories are more apt to support an employer’s decision to summarily dismiss an employee than the fourth: see McKinley at para. 51 . [ 79 ] My point is simply this. When looking at the diverse categories of misconduct, some are inherently or intuitively more serious than others. The weakest of all is insolence and more so if characterized as an isolated incident.

By comparison, insubordination is inherently more serious than insolence. Admittedly, a single incident of either may be sufficient to justify an employee’s

summary dismissal. However, the starting point is the understanding that there are distinct categories of misconduct and that some are inherently more serious than others. [ 74 ] There is no mention of Mr. Streng’s insolence in the Termination Letter. Mr. Morgan did not testify that he believed his working relationship with Mr. Streng was irredeemable. On the contrary, Mr. Morgan said he just let Mr. Streng ramble on and he had pretty thick skin and Mr. Streng’s comments didn’t bother him too much. Mr. Hall says he was “surprised there was not a reaction from Mr. Morgan.

I think anyone would have reacted to the personal attacks. There was no reaction.” [ 75 ] Mr. Morgan testified he was directed to terminate Mr. Streng’s employment. He did not say who gave him this directive or why. It is a safe inference to conclude the directive came from Mr. Sims, who owned Northwestern. Mr. Sims was not present in court during the trial and did not testify. Mr. Morgan also said he had help drafting the Termination Letter, but did not say who helped him. In his closing submissions, Mr. Wright says Mr. Morgan did not go to him or any other lawyer for assistance.

As no evidence was led on this point at trial, I am unable to make any findings of fact in this regard. [ 76 ] The evidence at the time of Mr. Streng’s termination and at trial indicates Northwestern terminated Mr. Streng for the reasons set out in the Termination Letter, namely, insubordination for removing the Cable Truck from the yard when Mr. Morgan had directed him to “park the truck”. Still, I find Mr. Streng’s angry outburst in the yard did happen. Mr. Streng acknowledges what he said to Mr. Morgan was inappropriate.

Although I am hesitant to characterize his outburst as a “tirade”, I do find it insolence and hence, employee misconduct. I will consider below whether Mr. Streng’s outburst against Mr. Morgan in the yard gave Northwestern cause to dismiss him. [ 77 ] There is a dearth of authorities considering whether one angry outburst justifies

summary dismissal. Many of these authorities do not engage the McKinley analysis. For example, Northwestern relies on the pre- McKinley decision of Codner v. Joint Construction Ltd . 1989 CarswellNFld 40. In Codner , the employer sought to justify Mr. Codner’s dismissal on the basis of his lack of care with the corporate gas credit card and his insolence when the President of the company confronted him with respect to this issue. Mr. Codner called the corporate President, an "f__ liar".

The Newfoundland Court found this one comment on this one occasion destructive of the employment relationship and justified his dismissal. Codner was not appealed, however, in the Henry v. Foxco appeal, Justices Robertson and Laralee considered, but did not follow Codner . [ 78 ] In Fortier v. Kal Tire , 2006 BCPC 223 , the court found the employer had cause to terminate an employee after one angry outburst. When a manager attempted to discuss possible changes to his work hours, the employee lashed out verbally and with profanity.

The court found that the employee’s angry tone, intense profanity, and disrespectful, belittling statements towards management in front of other employees gave the employer just cause for

summary dismissal. Judge Hogan writes at paragraph 16: [ 16 ] My view of the facts is that Marc Fortier did lose control of his temper on January 21, 2004 and that the anger, foul language and disrespectful statements directed towards Glendon MacDonald and Kal Tire were sufficient to sever the employer/employee relationship. He underestimates his own actions. Glendon MacDonald was certainly stunned by the verbal attack. It is clear from the two other members of the support line staff that were called that they knew Marc Fortier had gone too far, and he was going to be fired.

Whether he called his manager a “fucking asshole” or merely indicated that the support line staff members were being treated like “fucking assholes” does not matter much. Although a certain amount of profane language was not unknown at the work place, indeed swearing is

not uncommon in society, it was Marc Fortier’s vigorous use of the “f-bomb”, his tone, his red face, his physical aggressiveness, hisbelittling of his manager and other management in front of other employees that gave his employer just cause for immediate termination. [79] In Fortin, the court considered Clare v. Moore Corp. Ltd. [1989] O.J. No. 2071. In that the Ontario District Court justified thesummary dismissal of a 13 year employee for loudly belittling a manager and the employer using abusive and profane language.

Although the employee was frustrated with the employer’s operation, the court found his behaviour unacceptable by any standard andrepudiated the employee-employer relationship. The District Court held there was no need for the company to give a warning, as theemployee’s actions interfered with and prejudiced the safe and proper conduct of the company’s business. [80] Rysstad v. Dependable Turbines Ltd., 2007 BCSC 474 is a post-McKinley decision of the B.C. Supreme Court.

In that case amechanical design technician was dismissed after one outburst in which he called his employer incompetent, a liar and a “fuckingasshole”. The employer captured this outburst on a hidden tape recorder. The court found the employment relationship was irreparablyruptured. It rejected the employee’s argument that it was simply a masculine work environment in which profanity and coarse languagewere common. Mr.

Justice Preston did not engage in a formal McKinley analysis, but it was clear he found paramount the fact theemployer was a “one-man” company and its owner and president the target of the employee’s hostility. [81] Wise v. Broadway Properties Ltd., 2005 BCCA 546, is a case where the Court did engage the McKinley analysis and still founda single incident of misconduct did constitute cause for termination. In that case, the defendant dismissed a caretaker for just causebecause he wrote letter in which he compared his Jewish employer to German corporations that utilized Jewish slave labour in WorldWar II.

The employer, who was a Jewish man in his 80s, was deeply offended by this comparison. [82] In Dilg v. Dr. D. Sarca Inc., 2007 BCSC 1716 , Justice Preston found the employer was justified in terminating theemployment of a dental assistant for insolence. The dental assistant and the dentist’s already strained relationship escalated into highacrimony. The employee had multiple outbursts to the dentist and told her co-workers her husband wanted to “beat the shit out of” andkill the dentist. The Court held the dentist had cause for dismissing the dental assistant without notice.

As in Rysstad, Justice Prestonfound significant the target of the employee’s insolence was the owner and operator of a small business. The employee’s actions wereextreme and she remained unrepentant. By the time the dentist terminated her employment, the employee had already “compromised thefunctioning of the practice by creating an exceptional level of stress for everyone employed there.” Application of the McKinley Analysis [83] I will apply the full McKinley analysis only to Mr. Streng’s insolence towards Mr. Morgan as this is the only act which canfairly be said to constitute misconduct.

The Nature and Extent of the Misconduct [84] Mr. Wright argues that Mr. Streng’s outburst to Mr. Morgan in the yard was so insulting and offensive, it justified hisimmediate dismissal. He points out this incident occurred before two other employees. One of those employees was Mr. Hall, the safetyadvisor, who did not report to Mr. Morgan, the other was Mr. Ferch, another lineman who did report to Mr. Morgan. The evidenceindicates that Mr. Streng and Mr. Morgan often used profanity in their conversations, and in Mr. Ferch’s presence. [85] The evidence also indicates that Mr. Morgan and Mr.

Streng were not circumspect in their dealings with one another. Forexample, while Mr. Ferch was present, Mr. Morgan handed Mr. Streng the discipline letter, told him he was suspended and ordered himto home. Mr. Hall was also privy to the personnel issues involving Mr. Streng even though he was a safety advisor. Mr. Morganbrought him as a witness to his encounter with Mr. Streng in the yard after presenting the letter. It appears Northwestern’s personnelmatters were not something its management kept private and confidential. As with many small companies, the staff behaved somewhatlike family members. Mr.

Morgan and Mr. Streng were once close friends. Mr. Streng and Mr. Ferch are still friends and co-workers,albeit for CMH. For these reason, the fact that Mr. Streng berated Mr. Morgan in the presence of Mr. Hall and Mr. Ferch is not astroubling as it might have been where the employer has a larger workforce and more prescribed lines of communication and authority. The Surrounding Circumstances [86] The outburst followed Mr. Streng having received the Discipline Letter and been told he was suspended and directed to gohome. Mr. Streng never read the Discipline Letter nor did he have a copy at trial.

It is clear that Northwestern never disclosed theDiscipline Letter, notwithstanding Judge Solomon’s September 29, 2015, order. [87] Mr. Wright says he did not put the Discipline Letter into evidence because, “nothing turned on it” and then proceeded to elicitevidence from Mr. Morgan as to its contents. [88] In my view, the Discipline Letter is highly relevant to whether Mr. Morgan told Mr. Streng to park the Cable Truck before thenear miss incident and to whether he told Mr. Streng he was suspended.

Northwestern’s failure to disclose this key evidence to Mr.Streng or tender it in evidence suggests the Discipline Letter was either contrary to or did not support Mr. Morgan’s version of events. Itake an adverse inference from Northwestern’s failure to either disclose this document to Mr. Streng or to put it in evidence. In thisregard, I rely on the on Vieczorek et al. v.

Piersma, (ONCA), in which Cory J.A., then of the Ontario Court of Appealstated: …It is perfectly appropriate for a jury to infer, although they are not obliged to do so, that the failure to call material evidence which wasparticularly and uniquely available to the Vieczoreks was an indication that such evidence would not have been favourable to them. It isa common sense conclusion that may be reached by any trier of fact. There are no authorities which cast any doubt upon the proposition.

[89] This passage was cited in Cahoon v. Brideaux, 2010 BCCA 228 , at paragraph 48. Also see, Picco v. British Columbia(Attorney General), 2015 BCSC 1904 , at paragraph 101, in which Mr. Justice N. Brown, referred to the current law on drawingadverse inferences. [90] Even without drawing an adverse inference, I reject Mr. Morgan’s assertion he did not tell Mr. Streng he was suspended. In thisregard, I consider the following evidence determinative: a. Mr. Ferch was present at the time Mr. Morgan gave Mr. Streng the Discipline Letter. He heard Mr. Morgan tell Mr. Streng hewas suspended and witnessed Mr.

Streng become angry and walk out of the office. Mr. Ferch sought out Mr. Streng to see what thesuspension meant in terms of his own ability to work. b. Mr. Morgan says he told Mr. Streng and Mr. Ferch there was no work that day, even though he did have work for them forShaw in Fort St. John and Telus in Prince George. Mr. Hall confirms Mr. Morgan said there was no work for the linemen that day. Ifthere was no work, it was because Mr. Streng was being sent home as a form of discipline. c. When Mr. Streng left the office after having received the Discipline Letter, Mr. Morgan said he knew Mr.

Streng was going tohis pickup. Mr. Streng did not get paid if he did not work and he clearly wanted to work. When Mr. Ferch caught up with him, Mr.Streng was in his pickup truck heading out of the yard. I find it improbable that Mr. Streng would have left at the time and in the mannerhe did over an inconsequential Discipline Letter. Mr. Streng’s actions are consistent with him being told he was suspended and heshould go home. d. Mr. Hall and Mr. Morgan went into the yard after Mr. Streng left to ensure “things did not escalate.” These concerns onlymake sense if Mr.

Streng was angry at being sent home without work and without pay. e. Mr. Streng’s outburst to Mr. Morgan in the yard after receiving the Discipline Letter indicates there was far more at stake than abenign chastisement for swearing; f. Counsel for Northwestern did not challenge either Mr. Streng’s or Mr. Ferch’s evidence that Mr. Streng was suspended. Infact, in cross-examination Mr. Wright questioned Mr. Streng about remaining in the yard when, being suspended, he had no furtherbusiness there. [91] I find that when presenting him with the Discipline Letter, Mr. Morgan did tell Mr.

Streng he was suspended and directed himto go home. Mr. Morgan knew Mr. Streng was going into the yard where he parked his truck. He knew Mr. Streng was angry and upsetat the suspension. Mr. Streng got into his truck and was leaving the yard. He stopped briefly to talk to Mr. Ferch in an effort to learn thereason for his suspension. Mr. Streng did not know at that time it was related to the near miss incident. He didn’t even know there wasa near miss incident. He certainly did not know Mr. Morgan wrongly assumed he was the person driving the Cable Truck. Mr.

Strengwas being sent home without work and without pay and he did not know why. [92] Mr. Morgan says he went into the yard because he was concerned for company property. He was worried that things mightescalate. I do not find Mr. Morgan a credible witness and I do not accept his explanation for approaching Mr. Streng in the yard at thattime. If property damage was truly the reason for his presence, Mr. Morgan could have monitored the situation from a reasonabledistance. Alternatively, Mr. Hall could have simply gone and asked the linemen to leave. There is not a scintilla of evidence to suggestMr.

Streng was endangering any of Northwestern’s property. I find that Mr. Morgan wanted to provoke Mr. Streng into losing histemper and saying or doing something inappropriate. Mr. Morgan’s sangfroid in the face of Mr. Streng’s outburst suggests to me thatthis was the reaction he was expecting. [93] Another relevant circumstance is that at common law “suspension without pay” is not a method of discipline available to anemployer absent an express or implied term in the contract of employment. See: Carscallen v. Fri Corporation, (ONCA) cited in Potter v.

New Brunswick Legal Aid Services Commission, [2015] 1 SCR 500, 2015 SCC 10 . It is perhaps for thisreason Mr. Morgan denied having told Mr. Streng he was suspended despite the overwhelming evidence to the contrary. In any event,telling Mr. Streng he was suspended or telling him to go home as there was no work for him in the circumstances is a distinction withouta difference. Mr. Morgan was denying Mr. Streng the opportunity to work when there was work to be done. Because he did not work,Mr. Streng did not get paid. Mr.

Streng, who was self-represented, did not argue that Northwestern had constructively dismissed himwhen Mr. Morgan told him he was suspended and directed him to go home. Nevertheless, it is relevant factor in the McKinleycontextual analysis. Was dismissal a proportional response? [94] Mr. Wright argues that as the result of Mr. Streng’s “tirade” in the yard, the employment relationship had disintegrated intonon-existence. He argues Mr. Streng’s misconduct went to the root of the employment contract and justified his

summary dismissal. Iacknowledge that Northwestern was a small company. Mr. Streng was one of two linemen and Mr. Morgan their immediate supervisor. Mr. Morgan, however, was not the owner and therefore the circumstances in this case differ from those where the target of the insolencewas the owner and operator of a small business. [95] The salient problem for Northwestern is that it did not rely on insolence to justify dismissing Mr. Streng in its TerminationLetter of July 14, 2015, or in its Reply filed in these proceedings.

Although Northwestern’s Counsel argued insolence at trial, Mr.Morgan testified Northwestern dismissed Mr. Streng for the reasons set out in the Termination Letter, namely, insubordination by takingthe Cable Truck out of the yard contrary to Mr. Morgan’s directive to “park the truck”. I have already found there was no such directiveand hence, no insubordination. [96] Mr. Streng’s insolence preceded his dismissal, and therefore was not “after acquired cause”. It was likely Mr. Sims whodirected Mr. Streng’s dismissal. He refused to meet with Mr. Streng about the dismissal and he did not testify at trial. Mr. Streng

acknowledged he was angry and agitated and lost his temper. He said things to Mr. Morgan on the morning of July 13, 2015, that wereclearly unacceptable. He also acknowledged that at that time his relationship with Mr. Morgan “fell apart”. He did not say, however,their relationship fell apart for all time or that he could not work with Mr. Morgan in the future. Mr. Morgan did not say there was noprospect of his being able to work together with Mr. Streng in the best interests of Northwestern. He did not say Mr. Streng’s outburstcaused him distress, humiliation or anguish, nor did it appear so at the time. Mr.

Hall was surprised at Mr. Morgan’s lack of reaction. Although I find Mr. Streng’s behaviour offensive, I don’t see how this court can or should infer a total breakdown of the employmentrelationship from this one outburst absent evidence of such from Mr. Morgan or Mr. Sims. I have no reason to look beyond the cause fordismissal set out in the Termination Letter. Having said that, I do accept that Mr. Streng and Mr.

Morgan’s relationship was strained andabsent a reconciliation, their days as co-workers were likely numbered. [97] In David Harris’ text Wrongful Dismissal (Toronto: Loose-Leaf, 2006), the author states at page 3-53: …In raising a defence of just cause to an action for wrongful dismissal, the employer must perform three equally important tasks insequence.

Firstly, the employer must identify the employee’s misconduct with enough precision and particularity that both the employeeand the court can ascertain the nature of the questions to be tried, and so that the employee can respond to the defence in its reply …secondly, the employer must prove that misconduct, or a coherent and sufficient part thereof, on the balance of probabilities. Thirdly, theemployer must establish that the nature or degree of misconduct warranted dismissal. … [98] In this case there is a significant disconnect between the misconduct upon which Northwestern professes to rely for terminatingMr.

Streng’s employment and the submissions of counsel. Mr. Streng says that to this day he is not sure why he was fired. Notwithstanding the lack of precision in Northwestern’s identification of the misconduct it says constitutes just cause, I have consideredits allegations of insubordination, conflict of interest, and insolence. I find the Northwestern failed outright to prove insubordination orconflict of interest, but has succeeded in showing Mr. Streng guilty of one incidence of insolence. I also find Northwestern has failed toestablish on a balance of probabilities that Mr.

Streng’s insolence warranted dismissal. Accordingly, I find Mr. Streng was wrongfullydismissed on July 14, 2015. What is the measure of Mr. Streng’s damages? [99] Mr. Streng and Northwestern had no fixed term contract, so the common law doctrine of reasonable notice applies. It is animplied term of their contract of employment that Northwestern may dismiss Mr. Streng by giving reasonable notice or salary in lieu ofnotice. As Justice Chaisson noted in Steinebach v.

Clean Energy Compression Corp., 2016 BCCA 112 , at paragraph 15: The notice period is a substantive right that flows out of the employment relationship. Its purpose is to provide the employee with a fairopportunity to obtain similar or comparable re-employment. [100] In assessing damages for wrongful dismissal, Courts typically consider those factors set out in Bardol v. Globe and MailLtd., (1960) (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.) as relevant to the calculation of a reasonable period of notice fordismissing an employee.

The oft-cited Bardal factors include: the nature of the employment, the length of service, the age of theemployee and the availability of similar employment, having regard to the employee’s experience, training and qualifications. Thesefactors are not exhaustive. See: Honda Canada Inc. v. Keays, [2008] 2 SCR 362, 2008 SCC 39 , at paragraphs 28 to 32. [101] The Supreme Court of Canada in Wallace v. United Grain Growers Ltd., (SCC), [1997] 3 S.C.R. 701, set outthe measure of damages for an employee who is wrongfully dismissed.

Iacobucci J. states for the majority at paragraph 66: [66] In the event that an employee is wrongfully dismissed, the measure of damages for wrongful dismissal is the salary that theemployee would have earned had the employee worked during the period of notice to which he or she was entitled: Sylvester v. BritishColumbia, (SCC), [1997] 2 S.C.R. 315. The fact that this sum is awarded as damages at trial in no way alters thefundamental character of the money.

An award of damages in a wrongful dismissal action is in reality the wages that the employerought to have paid the employee either over the course of the period of reasonable notice or as pay in lieu of notice. [102] Mr. Streng worked for Northwestern for three and one-half years and submits the appropriate notice period is four months. Counsel for Northwestern agrees that in the event this court finds Mr. Streng was wrongfully dismissed, a four month notice period isappropriate. Where they differ is that Mr.

Streng asserts there should be no set off for wages he earned at CMH during the noticeperiod. [103] In Ostrow v. Abacus Management Corporation Mergers and Acquisitions, 2014 BCSC 938 , Madam Justice Watchuk,explains how compensation is determined in a wrongful dismissal case. She states at paragraphs: [114] The law is well settled with regard to compensation to be given to an employee who has been wrongfully dismissed. In NygardInt. Ltd. v.

Robinson (1990), (BC CA), 46 B.C.L.R. (2d) 103 (C.A.) at 107, Justice Southin stated that,“compensation, that is to say, damages for the breach are what the innocent party would have received or earned depending on the natureof the contract had it been performed according to its terms” (Also see Saalfeld at paras. 20 and 36). The dismissed employee is “entitledto be treated, for remedial purposes, as if he were an employee throughout the notice period” (Gillies v. Goldman Sachs CanadaInc., 2001 BCCA 683 , at para. 20; and Hawkes v.

Levelton Holdings Ltd., 2013 BCCA 306 at paras. 67-73 [Hawkes]). [115] In calculating damages in a case of wrongful dismissal, the issue is what the employee would have been entitled to had theyremained employed by the employer during the notice period. This will include any salary payable to the employee during this time. Itwill also include all benefits, including a bonus, to which the employee would have been entitled (Martell v. Ewos Canada Ltd., 2005

BCCA 554 , at paras. 26 and 27 and Hawkes at paras. 72-73 and 76). The employer is also required to compensate an employeefor the amount of money paid to replace lost benefits during the notice period: Sorel v. Tomenson Saunders Whitehead Ltd. (1987), (BC CA), 15 B.C.L.R. (2d) 38 (C.A.) [Sorel]. [104] An employee claiming wrongful dismissal has a duty to mitigate his or her damages. The employer bears the onus of proving anemployee failed to make reasonable efforts to find work and that work could have been found. See Red Deer College v. Michaels, (SCC), [1976] 2 S.C.R. 324. Mr.

Streng found alternative full time comparable employment within three weeks of hisdismissal. Northwestern rightly does not argue a failure to mitigate. Mr. Streng’s losses therefore are as follows: 1. his loss of salary between the notice period commencing July 14, 2015, and ending November 14, 2015; 2. for the four month notice period, an amount equal to the cost incurred by Mr. Streng to obtain coverage to replace his coverageunder Northwestern’s heath and benefit plans, and any actual expenses incurred by him (such as dental costs) which would haveotherwise been covered under Northwestern’s plans. [105] Mr.

Streng says that one of the benefits he lost was Northwestern’s contribution to a group Registered Retirement Savings Planin which he participated. He had been paying into this plan for six months. Northwestern matched the amount of Mr. Streng’sinvestment, which vested after two years from the date he started making contributions to the RRSP. As the notice period is only fourmonths, the employer’s portion would not have vested prior to his departure had Mr. Streng received reasonable notice. Mr.

Strengwould not have been eligible to receive the amount contributed by Northwestern to his RRSP. [106] Although Mr.Streng sought the premiums for his loss of benefits during the notice period, these are not recoverable unless Mr.Streng actually purchased replacement benefits. The relevant authority is Wilks v. Moore Dry Kiln Co. of Canada Ltd. (1981), (BC SC), 32 B.C.L.R. 149 at 152 (S.C.), where McLachlin, J. (as she then was) stated: ... The question is not what the defendant has gained by the dismissal, but what the plaintiff has lost. This loss must be established onthe evidence.

If the plaintiff fails to show that he has paid out or lost money or has otherwise suffered by reason of the absence of fringebenefits, his claim cannot succeed. [107] Although other jurisdictions hold an employer responsible for the value of its contributions in respect of benefits, the principleset out in Wilks is still the law in British Columbia. Mr. Streng can claim only the amount he has expended in making other provisionsfor the lost benefits during the notice period. In this case, Mr.

Streng has not adduced evidence he replaced Northwestern’s benefits orincurred actual losses arising from the absence of those benefits during the notice period. As the wrongfully dismissed employee, Mr.Streng has the onus of proving his damages: Red Deer College v. Michaels, (SCC), [1976] 2 S.C.R. 324. I thereforedismiss this portion of the Mr. Streng’s claim. [108] Mr. Streng says his annual income from Northwestern ranged between $55,000 and $68,000. Counsel for Northwestern put intoevidence Mr. Streng’s T4 Statement of Remuneration Paid from Northwestern for 2015. This Statement indicates that Mr.

Streng’s totalearnings for 2015 from January 1 to July 14, 2015, were $38,027.50. Northwestern asserts Mr. Streng’s monthly income fromNorthwestern averaged $5,815.40. Mr. Streng sets out in his Notice of Claim four months earnings of $22,400 plus 6% holiday pay at$1,344 for a total of $23,744. Mr. Streng says his monthly income was $5,936.00. I am mindful that Mr. Streng was paid hourly for thedays he worked and his income likely fluctuated throughout the year. [109] An action for wrongful dismissal is an action for breach of employment contract. The damages are based on the length of noticethat Mr.

Streng ought to have received during that period. The parties agree the appropriate notice period is four months. Mr. Streng’sdamages during that period include his provable loss of salary, monetary allowances, and benefits. In calculating Mr. Streng’s damagesfor loss of salary during the notice period, the court will use a figure which will, as accurately as possible, reflect what his salary wouldhave been over the notice period: Stuart v. Navigata Communications Ltd. The best evidence before the court is set out in Exhibit 2which shows Mr.

Streng’s salary over the four mouth notice period would have been $5,815.40 per month, for a total of $23,400. Mr.Streng’s actual earnings from July 14, 2015 to November 14, 2015, totalled $21,782.95. Mr. Streng’s damages for loss of salary basedon this calculation are $1,618.00. CONCLUSION [110] I conclude that Northwestern did not have just cause for termination of Mr. Streng’s employment without notice. [111] Mr.

Streng is entitled to damages for breach of the implied term of his employment contract that he be given reasonable noticeof termination of his employment. [112] The reasonable notice that should have been given was four months notice. [113] Mr. Streng reasonably mitigated his damages. [114] I award Mr. Streng damages from his dismissal without notice in the amount of $1, 618 for loss of salary and $176 for costs.

J.T. Doulis, PCJ