de Vink v. Schaffer Residences Inc. et al Date:, 2015 BCPC 355

Citation: de Vink v. Schaffer Residences Inc. et al Date: 20151204 2015 BCPC 0355 File No: 16221 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (SMALL CLAIMS) BETWEEN: JUDY de VINK CLAIMANT AND: SCHAFFER RESIDENCES INC. and WILDWOOD DEVELOPMENT CORPORATION LTD DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Counsel for the Claimant: Erin Kizell Appearing on their own behalf: Schaffer Residences Inc. and Wildwood Development Corporation Ltd. Place of Hearing: Quesnel , B.C.

Date of Hearing: November 19, 20, 2015 Date of Judgment: December 4, 2015

SUMMARY [ 1 ] The Claimant is an Assisted Living Worker (care aide) and was employed by the Defendants from 2006 to 2014. She claims damages for constructive dismissal as the Defendants had “created an intolerable, hostile and acrimonious workplace for the Claimant”. The Defendants deny this allegation and further deny there are any circumstances by which the Court could determine that there had been a constructive dismissal of the Claimant. BACKGROUND [ 2 ] The Schaffer Residences at Wildwood (Wildwood) is a ten bedroom assisted living residence in Quesnel, British Columbia.

The facility has a staff of eight to ten people depending on the number of residents. There is an on-site manager who reports to corporate head office in Vancouver. The company has a Vice President of Human Resources and Clinical Operations, Mr. Nihal Maligaspe, who is responsible for operating standards and human resources. The standard of care for the residents in the facility has to comply with those standards set out by the Assisted Living Registrar. [ 3 ] Ms. de Vink is now 65 years old. She worked the evening shift from 3 PM in the afternoon to 11 PM.

The procedure was for her to receive a handover from the care aide working the shift from 7 AM to 3 PM. She would then assist the cook, Ms. Cassidy, in preparing the dining room for the evening meal. After dinner she would help the residents get ready for bed. Her duties included helping the residents dress/undress, bathe, and providing them their medication as required. THE CLAIMANT’S CASE [ 4 ] Ms. de Vink liked her work at the residence but she claims that she was bullied and harassed by the manager, Ms. Ruth Hamilton.

Ms. de Vink did not feel that she could obtain support from either head office or through from Mr. Maligaspe to deal with the problem. [ 5 ] The Claimant testified the situation began to affect her quality of life in August 2014. At that time she testified she could not enter the residence for her shifts without feeling upset.

She went on sick leave on September 2, 2014 and in January 2015 decided to resign her position because she felt she could no longer work at the Wildwood residence. [ 6 ] Ms. de Vink testified that things began to deteriorate at Wildwood after she had a confrontation with another staff member in 2012 and then later asked for a raise. The confrontation described was with Ms. Amber Klein who was to take over responsibilities from Ms. de Vink for the evening shift. According to the Claimant, Ms. Klein was a half hour late for the changeover. This resulted in Ms. de Vink losing her temper and yelling at Ms.

Klein. [ 7 ] Ms. de Vink testified further that on September 2, 2014, Ms. Hamilton, the manager, told Ms. de Vink that her co-workers did not like working with her and that there were complaints from the families of some of the residents about Ms. de Vink’s behaviour. [ 8 ] Ms. de Vink said she felt isolated, did not receive any positive feedback on how to change the situation and became stressed. She challenged Ms. Hamilton and later Mr. Maligaspe to fire her if she was such a bad employee. Ms. de Vink’s testimony is that she was told by Ms.

Hamilton that Wildwood did not wish to pay the severance if she was fired. Ms. Hamilton denies saying such a thing as it is not within her authority to offer a severance package. Mr. Maligaspe indicated in his testimony that terminating Ms. de Vink’s employment was not a consideration. [ 9 ] Ms. Tina Bird, another care aide at Wildwood, talked about there being some tensions in the workplace. She referred to Ms. Hamilton’s managing style as being non-confrontational and that she, Ms.

Hamilton, did not get things done. [ 10 ] As a result of these factors, Ms. de Vink testified she found the work atmosphere at Wildwood oppressive and could not carry on working at Wildwood. There are several notes from her doctor in the binder at Exhibit 1 to that state Ms. de Vink cannot return to work. I note no medical legal report on Ms. de Vink’s condition was filed as an exhibit, nor did the Court receive any evidence of Ms. de Vink’s relevant clinical records. Ms. de Vink resigned her position with the Defendants in January of 2015.

THE DEFENDANTS’ EVIDENCE [ 11 ] The Defendants did not plead just cause nor was evidence introduced to suggest there was just cause to terminate the Claimant’s employment. The Defendants withdrew their Counterclaim at the beginning of the trial due to the fact this Court did not have the jurisdiction concerning the matters raised. [ 12 ] Evidence called by the Defendants established that the beginning of difficulties between Ms. de Vink and Wildwood began when the previous manager of the residence departed. At that time Ms. Hamilton and the Claimant had been co-workers. Ms.

Hamilton only had two months seniority in the Defendants’ employ over Ms. de Vink. Ms. Hamilton was appointed the new manager. Ms. de Vink was disappointed that she did not get the position of manager according to the testimony of Ms. Norine Cassidy, the cook. [ 13 ] The Defendants deny there was any bullying or harassment of the Claimant. The Claimant was a good care provider however in September of 2014 management had received some complaints concerning Ms. de Vink.

Some of her co-workers were uncomfortable working with Ms. de Vink and they had reported that she was aggressive in her care of some of the residents. These issues were discussed with the Claimant by Ms. Hamilton and later by Mr. Maligaspe. The Claimant went on sick leave in September, after these discussions took place.

[14] Mr. Maligaspe testified that the Claimant’s position was being held for her return from sick leave. The Claimant had continuedto pay her portion of the benefits package for the months that she was off work. The Defendants expected the Claimant’s return to workat Wildwood. While the complaints raised required some further investigation, there was no intention to terminate the Claimant’semployment. If anything, Mr. Maligaspe testified the Defendants’ wanted to work with the Claimant to resolve the issues. ISSUES FOR THE COURT 1. Was the Claimant being bullied or harassed by Ms.

Hamilton or other management or staff at Wildwood? 2. Was there conduct on the part of the Defendants, in particular, its officers or employees, to force Ms. de Vink to quit her position as acare aide? THE LEGAL CONSIDERATIONS Harassment and Other Forms of Abuse in the Workplace [15] Claims of constructive dismissal based on harassment, abuse, or a “toxic” work environment can be analyzed in two differentways: 1. A unilateral change in employment or responsibilities is one basis of constructive dismissal as, identified by the Ontario Court ofAppeal in Shah v.

Xerox Canada Ltd., (ON CA), and endorsed recently by the Supreme Court of Canada in Potter v.New Brunswick Legal Aid Services Commission, 2015 SCC 10 . 2. The “second branch” of the test for constructive dismissal is when the employer embarks on a course of treatment of the employeethat creates an intolerable work environment. In such cases "the court may find an employee has been constructively dismissed, withoutidentifying a specific fundamental term that has been breached, where the employer's treatment of the employee makes continuedemployment intolerable": Shah, at para. 6; Potter at paras. 33 and 162.

The employer's conduct in such cases, the Court of Appealnoted, may be viewed as the repudiation of the entire employment relationship. [16] In the decision of the Manitoba Court of Queen’s Bench in Whiting v. Winnipeg River Brokenhead Community FuturesDevelopment Corp., (MB KB), [1997] M.J. No. 21 (QL) (Q.B), affirmed, Whiting v. Winnipeg River BrokenheadCommunity Futures Development Corp., [1998] M.J. No. 199 (QL) (C.A.), the trial judge held that an employee had been constructivelydismissed because of a series of incidents culminating in the imposition of probation.

The employer had unjustifiably criticized theemployee, levelled vague and unfounded accusations against her, and created a hostile and embarrassing work environment. The trialjudge concluded that, "viewed objectively, the plaintiff's continued employment in such environment was no longer possible." In effect,the employer had by its conduct demonstrated an intention to no longer be bound by the contract. [17] A few examples of cases in which abusive or harassing comments and behaviour by the employer or co-workers have been heldto constitute constructive dismissal are: Paitich v.

Clarke Institute of Psychiatry (1988), 19 C.C.E.L 105 (Ont. H.C.J.), aff’d (1990), 30C.C.E.L. 235 (Ont. C.A.) (employee quitting after persistent and unfounded criticism by a supervisor); Qubti v. Reprodux Ltd., 2010ONSC 837 , [2010] O.J. No. 467 (QL) (S.C.J.) (employee resigning after years of verbal abuse including sexual and racist slursand other demeaning remarks by management “sufficient to create a hostile and poisoned work environment which caused him to seekmedical attention for mental stress”); Disotell v.

Kraft Canada Inc., supra (employee repeatedly harassed in the workplace withdegrading, impolite and derogatory comments by a number of fellow employees); and Strizzi v. Curzons Management Associates Inc.,2011 ONSC 4292 (employee subjected to abusive and threatening tirade by owner during phone conversation, including name-calling, false accusations of ruining the business, and threats of “brutal” legal retaliation if the employee quit).

As the judge observed inthe latter case (at para. 48): Although disagreements, disappointment, criticism, disciplinary action, and difficult – even heated – exchanges are common andexpected aspects of employment relationships, and anger and frustration may be expressed at those times, employers do not have theright to harass, humiliate, belittle and berate employees as they go about their responsibility of managing and supervising them. They donot have the right to yell and swear at employees and call them 'every name in the book'.

When employers carry matters to this extreme,they risk the employee reasonably concluding that continued employment is intolerable. On the other hand, as the Ontario Court of Appeal recently emphasized, "[w]orkplaces become poisoned for the purpose of constructivedismissal only where serious wrongful behaviour is demonstrated": General Motors of Canada Limited v. Johnson, 2013 ONCA 502, at para. 66. (emphasis added). The Court held that the plaintiff bears the onus of establishing a claim of a poisoned workplace: subjective feelings and genuinely heldbeliefs are insufficient to discharge this onus.

Rather, "[t]here must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplaceenvironment had been created." Moreover, "except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unlessserious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated” (at para. 67).(emphasis added) I note the case of Danielisz v.

Hercules Forwarding Inc., 2012 BCSC 1155 , in which the court observed (at para. 78), "for negative behaviour towards an employee by an employer to constitute a constructive dismissal it must be such as to render continuedemployment beyond what an employee may reasonably be expected to bear. The threshold must be high enough to permit an employer to legitimately express frustration to an employee, make very direct comments

about performance, or require the employee to work in a workplace with a degree of discord or conflict." and at paragraph 84: "[w]here unfriendliness, confrontations between co-workers, or some hostility and conflict occurs, it will not amount to constructive dismissal in circumstances where it does not prevent the employee from doing their work." Was the Claimant bullied and harassed? [ 18 ] I did not have any persuasive evidence that the Claimant was bullied. In fact, the only incident of bullying in the evidence before the Court was the confrontation between Ms. de Vink and Amber Klein.

This confrontation arose because Ms. Klein was late for a shift. Ms. de Vink testified Ms. Klein was 30 minutes late. Ms. Klein testified she may have been only three minutes late for her shift. Ms. Cassidy, the cook who witnessed the confrontation testified Ms. Klein was only 10 minutes late. Ms. de Vink yelled at Ms. Klein for being late. Ms. Klein explained that her mother-in-law was late getting to her home to babysit Ms. Klein’s child. Ms. de Vink told Ms. Klein that she should advise her mother-in-law that Ms. Klein works with “the bitch from hell” and that this shouldn’t happen again. [ 19 ] Ms.

Klein testified that she was afraid that Ms. de Vink would hit her. She felt harassed and was scared for her physical safety. There were other staff members around to witness this event. After that Ms Klein was always fearful working with Ms. de Vink. She found working with Ms. de Vink nerve-racking because she didn’t know her mood. [ 20 ] I accept the evidence provided in Ms. Cassidy’s observations. The kitchen where Ms. Cassidy primarily worked provided her a view of shift changes and Ms. de Vink’s interaction with the residents. She worked with Ms. de Vink for three hours each working day.

Her evidence was not contradicted on cross-examination. [ 21 ] The evidence from Ms. Cassidy and Ms. de Vink herself is that Ms. de Vink was disappointed that she was not selected to be the new manager at the residence. Ms. Cassidy related that Ms. de Vink had her own ideas as to how the residence should be run and that would be in a manner different from that of Ms. Hamilton. [ 22 ] Another disappointment for Ms. de Vink came when on January 29, 2014 she wrote a letter to Mr. Maligaspe asking for a raise.

She pointed out: “I have four years seniority over the next person on the employee list and I’m making only $.50 an hour more than she gets. She has one month seniority over the next person on the list and is making one dollar an hour more than that person. With the extra seniority and work that I do, I strongly feel that I’ve earned a pay raise I am confident that I’ve earned a raise based on my performance and seniority” [ 23 ] Ms. de Vink did not get the raise she sought. [ 24 ] Ms. de Vink worked the 3 PM to 11 PM shift. As mentioned she helped Ms. Cassidy get the dining room ready for dinner.

After dinner Ms. Cassidy cleaned up the kitchen and finished her shift at 6 PM. The next five hours Ms. de Vink worked on her own until the night shift arrived at 11 PM and she went home. [ 25 ] Ms. Hamilton, who Ms. de Vink has pointed to as being the person who bullied and harassed her, worked a shift from 7 AM to 3 PM. There is no evidence as to just what kind of interaction, if any, took place between Ms. Hamilton and Ms. de Vink during shift change. Ms. Bird testified that Ms. Hamilton’s management style was non-confrontational and that she really did not get things done.

These factors support an inference that Ms. Hamilton was prepared to leave Ms. de Vink to do her job without any ongoing input from management. There is no evidence of any harassing behaviour on the part of Ms. Hamilton as she was not around on the Claimant’s shift. Was there conduct on the part of Wildwood, in particular its officers or employees, to force Ms. de Vink to quit her position as a care aide? [ 26 ] I accept the evidence that Wildwood was a pleasant place to be whether one was staff or a resident. Ms.

Bird qualified her assessment of the work atmosphere by testifying there were some tensions between staff. Ms. Klein and Ms. Cassidy both testified it was a good place to work. Even though I note they are still both in the employ of Wildwood, this, in my opinion, does not affect their testimony. [ 27 ] The evidence of Ms. Morag Forbes is that her father was placed at Wildwood after a bad experience at another assisted living home. Ms.

Forbes stated that for the most part she and her sisters were very happy to get her father into a place like Wildwood. [ 28 ] There is no evidence to support Ms. de Vink’s claim that the atmosphere at Wildwood was “toxic” or that an observer could even say it was unpleasant. [ 29 ] Mr. Maligaspe testified that there had been three meetings with Ms. de Vink about her behaviour. The first took place in October 2012 as a result of Ms. de Vink’s behaviour towards Ms. Klein. The second meeting occurred in 2013. Mr. Maligaspe testified that staff had reported that Ms. de Vink was making critical remarks about Ms.

Hamilton and her style of management to staff and the residents. Certainly Ms. Cassidy heard such remarks from Ms. de Vink. Mr. Maligaspe mediated between Ms. Hamilton and Ms. de Vink and Ms. de Vink left the meeting saying that she would do her best to work with Ms. Hamilton. Mr. Maligaspe testified that for a period of time after each of these meetings Ms. de Vink was content and able to work with Ms. Hamilton and her co-workers. [ 30 ] The third meeting Mr. Maligaspe described was in September 2014. Ms. de Vink testified she was told by Ms.

Hamilton that, among other things, no one liked working with her, she had no communication skills, and she never took responsibility for her actions. Ms. de Vink said this was a surprise as there had been no warning, no plan offered, no breaches, and no financial loss to Wildwood. She testified she felt isolated and unsupported.

[ 31 ] Mr. Maligaspe was concerned about Ms. de Vink. She had called him after the meeting with Ms. Hamilton saying that she was unhappy working in the environment as the situational relationships had come up again. Mr. Maligaspe outlined options for the Claimant, but made it clear her employment would not be terminated nor would she be laid off. [ 32 ] There are suggestions that Ms. de Vink’s behaviour was becoming a concern for families of some of the residents. Ms.

Forbes testified that conversations with Ms. de Vink made them feel inadequate in the amount of support they were giving to their father. [ 33 ] Ms. Cassidy testified of Ms. de Vink’s interactions with the patient named Eddie. Eddie is described as being in his 50’s and suffering from brain deterioration. Ms. de Vink got into a confrontation when he asked for an additional cigarette. Eddie also began talking about suicide. Rather than redirect Eddie’s conversation to other things, Ms. de Vink told him that suicide was legal in Québec. Ms.

Cassidy testified that could be physically rough on residents that she did not like. [ 34 ] This evidence is set out not to show that Ms. de Vink is a bad employee but to gauge the subsequent conduct of Ms. Hamilton and Mr. Maligaspe. Even after these concerns arose in August 2014, Mr. Maligaspe testified there was no intention of terminating Ms. de Vink. Such action would be a “last resort”. [ 35 ] The Wildwood residence is subject to the ultimate supervision of the Assisted Living Registrar. Mr.

Maligaspe points out the facilities are subject to surprise inspections by the Registrar staff in their role of ensuring the assisted living homes are being properly run and the residents are receiving the care they require. [ 36 ] Although Ms. de Vink took sick leave from September to January 2015, she continued to pay into her benefits package. Wildwood concluded she had an intention to return. Ms. de Vink was not, in August 2014, in any danger of being terminated from her position.

She was accepted for her professional abilities and Wildwood was still willing to work with her to reduce the conflict between her and other staff at the residence. Wildwood fully expected the Claimant to return to work. CONCLUSIONS [ 37 ] I find from the evidence that Ms. de Vink was not subject to a process of being bullied or harassed, by Ms.

Hamilton or anyone else. [ 38 ] I conclude there was no oppressive work atmosphere at Wildwood designed to drive Ms. de Vink from her employment. [ 39 ] I further conclude that Wildwood took no action to repudiate the contract of employment with the Claimant, such that Ms. de Vink could consider herself dismissed and entitled to damages in lieu of notice. [ 40 ] Ms. de Vink was unhappy at Wildwood. I believe she felt her opportunities to advance professionally and financially were limited. While disappointing, this is not sufficient for the Court to find that the work atmosphere was intolerable.

For those reasons I find Ms. de Vink’s claim that she was the subject of a constructive dismissal fails. [ 41 ] When she quit her job at Wildwood, she did so of her own volition. ORDER [ 42 ] Ms. de Vink’s claim against Wildwood Development Corporation Ltd. and Schaffer Residences Inc. is dismissed. [ 43 ] The Defendants’ Counterclaim against the Claimant was withdrawn at trial. [ 44 ] Pursuant to Rule 20 of the Small Claims Rules , the Defendants shall have their fees for filing and service of any documents.

I refer the Defendants’ claim for any other expenses incurred to the Registrar for consideration. _______________________ R. W. Callan Provincial Court Judge Province of British Columbia