Thomas v. Vancouver Free Press Publishing Corp., 2019 BCPC 9

Citation: Thomas v. Vancouver Free Press Publishing Corp. 2019 BCPC 9 Date: 20190130 File No: 1657361 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: COLIN THOMAS CLAIMANT AND: VANCOUVER FREE PRESS PUBLISHING CORP. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE

Counsel for the Claimant: S. A. Quail Counsel for the Defendant: N. Mitha, Q.C Place of Hearing: Vancouver , B.C. Dates of Hearing: January 8 2019, January 9 2019, January 10, 2019 Date of Judgment: January 30, 2019 Reasons INTRODUCTION [ 1 ] The Respondent Vancouver Free Press Publishing Corp. publishes The Georgia Straight newspaper. Colin Thomas was a freelance writer who started to write theatre reviews for The Georgia Straight in March 1988. This continued until September 2016 when he was told that The Georgia Straight would no longer purchase theatre reviews from him. Mr.

Thomas concedes that he was never an employee of the respondent. However he claims the status of a dependent contractor and that he is entitled to severance in lieu of notice upon the termination of his position with The Georgia Straight. [ 2 ] For greater ease, I will refer to the respondent as The Georgia Straight. [ 3 ] The issues are as follows: 1. Was Colin Thomas a dependent contractor of The Georgia Straight newspaper? 2. If so, then what severance is payable to him in lieu of notice of the termination of his position? 3.

Did Colin Thomas make reasonable efforts to mitigate his loss following the termination of his position? [ 4 ] If Mr. Thomas is found not to be a dependent contractor, there is no claim for severance. EVIDENCE [ 5 ] The following persons testified at the trial. • Colin Thomas. The claimant’s career started as an actor, then a playwright and now a theatre critic. • Angela Konrad. She is a Professor of Theatre, a professional director and the artistic director of a small theatre company. She has been familiar with Mr. Thomas’ work as a theatre critic for the past 20 years • Kathleen Oliver.

She is an English teacher at Langara College, was a playwright and has been writing theatre reviews for The Georgia Straight since 1996 or 1997. After Mr. Thomas ceased writing theatre reviews for The Georgia Straight, Ms. Oliver became the main theatre review writer for the newspaper. • Marsha Estelle Lederman. She is the Western Canada arts correspondent for the Globe and Mail newspaper. • William Edgar Millerd. Now retired, Mr. Millerd was the arts director for The Arts Club for some 45 years, the last 20 years as managing director.

The Arts Club is a year round professional theatre company in Vancouver and is the major theatre company in British Columbia. • Matt McLeod. He has been the general manager for The Georgia Straight since August 2015. • Charlie Smith. He has been the editor of The Georgia Straight since 2005 and has been employed by The Georgia Straight since 1994. • Janet Smith. She has been employed at The Georgia Straight for over 20 years. During her first 5 years, she was the assistant Arts editor, and since then she has been the Arts editor for the paper.

She oversees all Arts content in The Georgia Straight, covering dance, theatre, comedy, music and visual arts. [ 6 ] I also received into evidence a letter from Dr. Jerry Wasserman, Emeritus Professor of English and Theatre at the University of British Columbia. [ 7 ] Much of the evidence is not in dispute. [ 8 ] Colin Thomas started writing for The Georgia Straight on a freelance basis in March 1988, when he submitted a dance review for publication. The Georgia Straight purchased the review. At about that time, Mr. Thomas was asked if he would become the theatre critic for The Georgia Straight. Mr.

Thomas agreed. [ 9 ] Mr. Thomas went on to become a freelance writer for The Georgia Straight with a focus primarily on theatre reviews. He also wrote previews of upcoming shows and profiles of artists. Mr. Thomas has also written one

article about gender issues which was featured on the cover of The Georgia Straight. [ 10 ] The process for having theatre reviews purchased, and for that matter any articles, remained constant. Mr. Thomas would contact the paper’s Arts Editor to propose reviews of certain theatre shows. These proposals were called “pitches”. For the majority of the time that Mr. Thomas wrote reviews for the Georgia Straight, the Arts Editor was Janet Smith. Janet Smith would decide which shows were to be reviewed. She retained discretion to reject the pitch or ask for some other show to be reviewed.

For pitches that are accepted, Mr. Thomas would attend the show, write his review and then submit it to the Georgia Straight by the deadline, which was

typically the next day. [ 11 ] Mr. Thomas was paid a flat rate plus GST for each review. The Georgia Straight is published weekly and for a first published review in a given week’s issue, he was paid $275 plus an added $65 for an administration fee. For a subsequent review to be published that same issue, he was paid $210. [ 12 ] Mr. Thomas testified that he was paid $225 for previews of shows. [ 13 ] In 2004, The Georgia Straight had a change in policy. Mr. Thomas was then limited to only writing two theatre reviews for any issue of The Georgia Straight.

Any other reviews had to be written by someone else. [ 14 ] As a result of the cutback, Mr. Thomas supplemented his income by providing story editing services. For the most part, he promoted and offered this service through his personal website. [ 15 ] It was conceded that Mr. Thomas was never an employee of The Georgia Straight. The Georgia Straight never made any deductions from his payments. Mr. Thomas never worked in The Georgia Straight office or used their equipment. The Georgia Straight never set Mr. Thomas’ work hours. Mr. Thomas received no employment benefits.

He was not bound by The Georgia Straight Policy Handbook for Employees. [ 16 ] At no time did The Georgia Straight guarantee the amount of work that Mr. Thomas would receive each week. [ 17 ] Mr. Thomas was one of hundreds of freelance writers who have submitted various articles to The Georgia Straight. According to Matt McLeod, the paper used four different theatre reviewers in the years 2014 and 2015. There were five different theatre reviewers in 2015 and 2016. It was not disputed though that Mr. Thomas wrote the bulk of the theatre reviews published in The Georgia Straight. The evidence was clear that Mr.

Thomas was known as the main theatre critic for the paper. The evidence of Angela Konrad, Marsha Lederman and William Millerd was that they would seek out Mr. Thomas’ reviews in The Georgia Straight. [ 18 ] Mr. Thomas also represented The Georgia Straight in awarding the critic’s choice award at the annual Vancouver Fringe Festival. He has represented the paper at the Vancouver theatre awards known as the Jessie Awards and on CBC programs dealing with the arts. [ 19 ] Sometime after 2004, Mr. Thomas said he spoke to Janet Smith about writing theatre reviews for other publications. Mr.

Thomas was unable to provide a date when this conversation occurred. He said he was told that The Georgia Straight would not permit him to write reviews for other publications. [ 20 ] Janet Smith denies that there was ever such a discussion. She testified that she did not have the authority to prevent any freelance writer from writing for another publication. She said that such a decision could only be made by the paper’s editor Charlie Smith or the general manager Matt McLeod. At best, Janet Smith said she may advise someone about how she thought upper management would respond to any requests.

However she recalls no such discussion with Mr. Thomas about working for other publications. [ 21 ] The opportunity to write theatre reviews for other publications was limited. Marsha Estelle Lederman, who writes for The Globe and Mail, testified that the only other publications that run theatre reviews locally were Post Media (publishing The Vancouver Sun and The Province newspapers) and a website called Vancouver Presents. Ms. Lederman said that The Globe and Mail has no budget for freelance writers.

There was no evidence whether Post Media used freelance writers. [ 22 ] I have also noted that in an email exchange on May 7, 2014 between Mr. Thomas and Janet Smith, Mr. Thomas informs Ms. Smith that he would like to review a show called Totem. However, Janet Smith decided that she would write the review of Totem for The Georgia Straight. The Georgia Straight’s review of Totem was published on their website on May 16, 2014. Mr. Thomas still wrote a review of Totem which he published on his own website that same day of May 16, 2014. [ 23 ] Evidence was also heard during the trial that in April and May 2012, Mr.

Thomas advised Charlie Smith that he wanted to sell advertisement to theatre companies on his personal website. Mr. Thomas testified that Laura Moore, who handles advertising for the paper, told him that The Georgia Straight would not tolerate him selling theatre advertising on his website. This is hearsay evidence and Ms. Moore was not called as a witness to testify about this. Ms. Moore also did not have any supervisory duties over Mr.

Thomas. [ 24 ] Both Charlie Smith and Matt McLeod expressed concerns about this proposal because they thought there would be a conflict of interest if a writer was being paid by the very theatre company that was being reviewed by the writer. Both Mr. Smith and Mr. McLeod felt that this differed from the situation with The Georgia Straight, which also received advertising money from theatre companies. They both said that writers for The Georgia Straight do not directly receive advertising money. In addition, The Georgia Straight makes use of freelance writers such as Mr.

Thomas to write reviews, creating further distance from the advertisers. It seems this discussion went no further and Mr. Thomas said that he never did run theatre advertisement on his website. [ 25 ] Sometime in late September 2016, the upper management of The Georgia Straight had a meeting. In attendance were Charlie Smith, Janet Smith, Matt McLeod, the owner of the Georgia Straight Dan McLeod and Laura Moore. Charlie Smith said the topic of Mr. Thomas’ writing arose. He said there was a consensus that the theatre reviews of Kathleen Oliver were preferred. Mr. Smith said he had a sense that Mr.

Thomas did not like any shows and that The Georgia Straight needed a change. Mr. Smith said the paper wanted more voices and a different voice. A decision was thus made at the meeting to no longer purchase theatre reviews from Mr. Thomas. [ 26 ] Mr. Thomas said he learned of this decision after he emailed Janet Smith with a pitch for reviews. He did not hear back from Ms. Smith and instead received an email from Charlie Smith asking for a meeting with him and Janet Smith regarding changes occurring at the paper. The meeting was to occur away from The Georgia Straight offices. Mr.

Thomas said he suspected then that his position was being terminated.

[ 27 ] The meeting between Mr. Thomas, Charlie Smith and Janet Smith was held on September 28, 2016. Mr. Thomas was told that the paper would no longer purchase theatre reviews from him, although he could still do other work for the paper. [ 28 ] Mr. Thomas asked if he could continue to write theatre reviews for two more months. Charlie Smith responded to the request by an email dated September 30, 2016 advising Mr. Thomas that the paper would no longer be buying reviews from Mr. Thomas. Mr. Smith wrote that Janet Smith would like Mr. Thomas to write a preview of a show called Empire of the Son. Mr.

Smith also said the paper was open for Mr. Thomas to do other kinds of work or that he could assign a story to Mr. Thomas to write. [ 29 ] Mr. Thomas chose not to follow up with any offers for further work with The Georgia Straight. Mr. Thomas was of the view that it would be humiliating if he had to write show previews for the paper, despite the fact he had been already writing previews for The Georgia Straight for years. He felt that this represented a public demotion and that he was being punished for having opinions. Both Charlie Smith and Matt McLeod disagreed with this view.

Both felt that writing for the paper was a privilege and an honour. [ 30 ] The week after the Georgia Straight chose to stop purchasing reviews from Mr. Thomas, it published four theatre reviews. Since that time the paper has continued to publish theatre reviews without interruption. [ 31 ] Mr. Thomas decided that he wanted to establish himself as an independent theatre critic. He was no longer prepared to work for The Georgia Straight, including writing previews or any other articles. [ 32 ] Mr. Thomas also testified about his dislike for the editing work he was also doing.

He described it as “soul killing”, and that it was not as gratifying or important as being a theatre critic. [ 33 ] Mr. Thomas was offered a job writing theatre reviews for the Westender newspaper. He turned down the offer though citing that it would only pay $75 for one review a week. He said the Westender newspaper also folded a few months later. [ 34 ] In an effort to resume writing theatre reviews, Mr. Thomas entered into a contract with the Vancouver Fringe Festival Society, to be in effect from July 21, 2017 to July 21, 2018. This agreement provided that Mr.

Thomas would write a theatre review column for a publication from a group called Theatre Wire. The title of the column was to be “Colin Thomas’ Fresh Sheet”. Advertising revenue was to be paid directly to Mr. Thomas less a commission. [ 35 ] This venture proved to be of limited success with few ads sold. Mr. Thomas last wrote the column in March 2018, when the relationship was dissolved. [ 36 ] In May 2018, Mr. Thomas moved on to a different venture seeking subscriptions for his theatre reviews which would be published on his website.

This form of funding was by way of a website known as Patreon whereby members pay for content. To this day, Mr. Thomas continues to write theatre reviews for his website, with income provided by way of the Patreon payments. Income of Colin Thomas [ 37 ] Mr. Thomas presented evidence of his income although the information provided seemed to vary. [ 38 ] In a statement setting out income in the year 2012, Mr. Thomas reports gross income of $51,015.71.

He provides alternate calculations for the income he received from The Georgia Straight at $23,938.88 or $23,429 and states that his other income totalled $24,441.91. [ 39 ] In a statement setting out income for 2013, Mr. Thomas sets out his total income as $40,147.87 and his Georgia Straight income as $24,277.02. This meant his non-Georgia Straight income would have been $15,870.85. [ 40 ] Mr. Thomas also provided a

summary statement describing his income from The Georgia Straight for the years 2014 to 2016 as follows: 2014 $25,236 (an average of $2,103 a month) 2015 $23,031 (an average of $1,918 a month) 2016 $14,750 (an average of $1,639 a month over 9 months) [ 41 ] In a separate statement showing monthly earnings for the year 2014, Mr. Thomas listed his total income as $49,446.39. He totaled his non-Georgia Straight income as $22,975.59. Based on this, Mr. Thomas’ total Georgia Straight income for 2014 was $26,470.80, an average of $2,206 a month. [ 42 ] Mr.

Thomas’ 2014 tax return also listed his gross business income as $47,431. [ 43 ] In a statement showing monthly earnings for the year 2015, Mr. Thomas listed his total income as $43,964.64. He listed his total non-Georgia Straight income as $18,583.98. This meant his total Georgia Straight income for 2015 was $25,380.66, an average of $2,115 a month. [ 44 ] Mr. Thomas’ 2015 tax return listed his gross business income as $40,325.64. [ 45 ] In a statement showing monthly earnings for the year 2016, Mr. Thomas’ total Georgia Straight income was listed as $13,339.75, an average of $1,482 a month over 9 months.

His statement sets out his non-Georgia Straight income for 2016, which was all for editing work. I have totalled those amounts and arrived at the following: January 2016 $862.50

February 2016 $525 March 2016 $4,200 April 2016 $1,312.50 May 2016 $2,938.25 June 2016 $1,942.50 July 2016 $1,263 August 2016 $157.50 September 2016 $2,047.50 October 2016 $3,177.50 November 2016 $940.08 December 2016 $2,837.50 Total $22,203.83 [ 46 ] Based on Mr. Thomas’ records, the total of his Georgia Straight income ($13,339.75) and non-Georgia Straight income ($22,203.83) for 2016 was $35,543.58. [ 47 ] Mr. Thomas’s 2016 tax return listed his gross business income as $36,171.36. [ 48 ] There are thus discrepancies between the various documents setting out Mr.

Thomas’ total income and the income derived from The Georgia Straight. [ 49 ] I was not provided with any breakdown about what portion of the Georgia Straight income came from theatre reviews. Matt McLeod, the current general manager for The Georgia Straight, provided an estimate of the proportion of payments made to Mr. Thomas by The Georgia Straight for non-theatre review work, as follows: 2012 25% 2013 30% 2014 25% 2015 20% 2016 17-18% [ 50 ] However, Mr. McLeod was unable to provide particulars of how he calculated these amounts. [ 51 ] Based on Mr.

Thomas’ estimates of his Georgia Straight income, he appears to have averaged roughly $2,000 a month in income. [ 52 ] Based on Matt McLeod’s estimates, approximately 25% of Mr. Thomas’s Georgia Straight income did not come from theatre reviews. That would mean on average Mr. Thomas was receiving $1,500 a month for his theatre reviews for the Georgia Straight newspaper. [ 53 ] Since September 2016, Mr.

Thomas reported his income as follows: October 2016 $3,177.50 from editing November 2016 $940.08 from editing December 2018 $2,837.50 from editing January 2017 $3,329.25 from editing February 2017 $2,461.75 from editing March 2017 $105 and $446.25, a total of $551.25 from editing April 2017 $1,890 from editing May 2017 $1,817.50 plus $1,653, a total of $3,470.50 from editing June 2017 $1,829.75 from editing July 2017 no income reported

August 2017 no income reported September 2017 $2,378.25 from editing October 2017 no income reported November 2017 $49.69 December 2017 no income reported January 2018 $1,131.40 (CPP and OAS only) February 2018 $1,367.68 (PLR, CPP and OAS) March 2018 $1,231.40 (CPP and OAS) April 2018 $1,134.33 (CPP and OAS) May 2018 $2,314.33 (CPP, OAS and Patreon payments of $1,080) June 2018 $1,520.08 (includes CPP, OAS and Patreon payments of $195) July 2018 $3,801.04 (includes Patreon and patron payments of $2,470.63) August 2018 $4,337.21 (includes Patreon and patron payments of $1,550.80) September 2018 $1,786.41 (includes patron payments of $595) [54] The amounts received through Patreon and patrons in 2018 totaled $13,068.13. [55] Mr.

Thomas estimates his current Patreon income at $1,786 a month. [56] Mr. Thomas seeks compensation in lieu of notice for a period of 23 months, which would be to September 2018. Based on that,I have not set out Mr. Thomas’ income beyond September 2018. [57] Mr. Thomas also said that he could not recall why he was not working from October to December 2017. He said he may havebeen writing for the Theatre Wire publication. He also testified that for some periods of time he chose not to do paid work in order tobuild his career as an independent theatre reviewer. [58] Mr.

Thomas also had no earnings from January 2018 to April 2018. He said that he was focusing on writing reviews forTheatre Wire. He was not even editing at this time. Mr. Thomas emphasized that he had chosen a different route for his life, to be anindependent theatre critic. ANALYSIS Is Colin Thomas a dependent contractor? [59] The leading case in this area is that of McKee v.

Reid's Heritage Homes Ltd., 2009 ONCA 916 , where the court states: [30] I conclude that an intermediate category exists, which consists, at least, of those non-employment work relationships that exhibita certain minimum economic dependency, which may be demonstrated by complete or near-complete exclusivity. Workers in thiscategory are known as “dependent contractors” and they are owed reasonable notice upon termination. [60] The most recent statement of the law in B.C. regarding dependent contractors is found at Lightstream Telecommunications Inc.v.

Telecon Inc., 2018 BCSC 1940, where the court discussed whether a person named Daniel Wray was a dependent contractor of thedefendant Telecon. The court stated: [122] The plaintiffs allege that the relationship between Telecon and Wray establishes either an employment or dependent contractorrelationship. If Wray were an employee or dependent contractor of Telecon, he would have an independent, actionable claim of wrongfuldismissal against the defendant as a result of the false allegation of theft. [123] In support of their position, the plaintiffs rely upon McKee v.

Reid’s Heritage Homes Ltd., 2009 ONCA 916 at paras 24-30 andparas. 38-39 and Truong v. British Columbia, 1999 BCCA 513, paras. 24 to 36. These decisions reinforce the principle that the whole ofthe relationship between the parties must be carefully examined in order to determine the true character of the relationship. [124] Between McKee, Truong, 671122 Ontario Ltd. v.

Sagaz Industries Canada Inc., 2001 SCC 59 at para. 56, and Glimhagen v.GWR Resources Inc., 2017 BCSC 761 at para. 45, the following factors are considered in determining whether a worker is a dependentcontractor (or, a fortiori, an employee), or whether they are an independent contractor: 1. The defendant’s level of control over the worker’s activities, including:

a) the defendant's power to select or not select the worker;

b) the payment of wages;

c) control over the method of work; and

d) the defendant's right of suspension or dismissal. 2. The exclusive nature of the relationship; 3. The worker’s economic dependence on the defendant; 4. Whether the worker could hire their own helpers; 5. Whether the worker provides his or her own tools and equipment; 6. The worker’s opportunity for profit in the performance of their tasks; 7. The degree of financial risk taken by the worker, 8. The worker’s responsibility for investment and management; 9. Whether the worker is a crucial element of the defendant’s business; 10. Whether the activity of the worker represents the defendant’s business; 11.

The permanency and length of the relationship; and 12. Whether the parties rely on each other or closely co-ordinate conduct. [125] These factors can be characterized as falling into four main or overarching general tests: 1. Level of Worker Control; 2. Ownership of Equipment and Tools; 3. Profit/Loss Opportunity; and 4. Business Integration. [ 61 ] As is evident in the Lightstream decision and decisions such as Caradoc Power Line Ltd. v. Southwest Middlesex (Municipality) , [2003] O.J. No. 2406 and 671122 Ontario Ltd. v.

Sagaz Industries Canada Inc. , 2001 SCC 59 , there are many factors that have to be considered in order to determine if a person is a dependent contractor. [ 62 ] I will use the factors set out in Lightstream in carrying out my analysis of whether Mr. Thomas was a dependent contractor. Level of Worker Control [ 63 ] The Georgia Straight approved the show to be reviewed, set size restrictions for the article, edited the

article and determined a deadline for submission of the work. Beyond that the content of the work was left entirely to Mr. Thomas. He also made the pitch and had the choice whether to write the

article or not. Subject only to the deadline for submission, Mr. Thomas decided how and when he would do the work. Effectively, each accepted pitch became a contract for the provision of a theatre review. The Georgia Straight did not have any control over the content of the reviews. Ownership of Equipment and Tools [ 64 ] There is little in the way of tools required to write an

article for The Georgia Straight. The primary tool was a computer and Mr. Thomas used his own to write his articles. The Georgia Straight provided no tools for his use. Given the nature of the work, this factor is of little relevance in determining whether there is a dependent contractor relationship. Profit/Loss Opportunity [ 65 ] The relationship between the parties lasted 28 years, starting in 1988. [ 66 ] Since 2004 Mr. Thomas was limited to a maximum of two theatre reviews per issue. [ 67 ] Mr.

Thomas was paid on a piecemeal basis and so he had no risk of loss. [ 68 ] The Georgia Straight retained at all times the right not to purchase a review from Mr. Thomas as there was never a guarantee for such. [ 69 ] As I will explain below, I do not accept that Mr. Thomas was not permitted to write reviews for other publications. On that basis, Mr. Thomas was not prevented by the paper from earning additional profits by writing for others. Business Integration. [ 70 ] For many years Mr. Thomas was the primary theatre reviewer for The Georgia Straight.

In many situations, such as during the Fringe Festival critics’ awards, he acted as a representative for The Georgia Straight, sometimes on his own and at other times with Kathleen Oliver. [ 71 ] Mr. Thomas was not the exclusive reviewer and it was clear that the paper could have utilized the services of other reviewers at its discretion. Since September 2016, The Georgia Straight continued to publish theatre reviews without interruption.

[72] Mr. Thomas was not dependent on The Georgia Straight for any benefits as none were provided to him. [73] From Mr. Thomas’ perspective he was heavily reliant on the paper. There were few publications in Vancouver that featuredtheatre reviews. Further, Mr. Thomas viewed writing theatre reviews as his calling and so he needed a vehicle by which he could publishhis reviews. When The Georgia Straight decided to no longer purchase reviews from Mr. Thomas, Mr. Thomas turned his focus tobecoming an independent theatre critic, which he was eventually successful in doing so. [74] Mr.

Thomas testified that he was not permitted to write theatre reviews for any other publication. Janet Smith disputes that thiswas ever told to Mr. Thomas and both Charlie Smith and Matt McLeod confirmed that there were no restrictions preventing Mr. Thomasfrom writing for other publications. To paraphrase Mr. Smith, such was the nature of freelance writing. [75] I also take into account that Mr. Thomas published his own review of the show Totem on his website. This was after TheGeorgia Straight decided to publish a review of that same show by Janet Smith rather than a review offered by Mr. Thomas.

Mr.Thomas’ publication of the Totem review on his own website contradicts his stated understanding that he could not write theatre reviewsfor anyone other than The Georgia Straight. [76] Theatre reviews are but one subsection of the arts coverage provided by The Georgia Straight. The arts

section covers suchareas as movies, music and comedy. The Georgia Straight paper itself is comprised of a number of sections including news and food. [77] Matt McLeod reported that the number of page views of the theatre reviews on The Georgia Straight website is small. Thissuggests that the readership level of theatre reviews is less than some other sections of the paper. [78] The Georgia Straight continued publication of theatre reviews demonstrates that they were not reliant on Mr. Thomas. Thebusiness of the paper was not integrated with or reliant on specifically having Mr. Thomas write theatre reviews.

As stated at paragraph19 of in Caradoc Power Line Ltd., a decision I cited earlier, “if exclusivity runs in both directions, it weighs more heavily in favour of anemployer/employee like relationship.” In this case, exclusivity did not run in both directions. [79] Mr. Thomas did pass on instructions to Kathleen Oliver when a review was required of her. Janet Smith testified that becauseMr. Thomas knew Ms. Oliver so well, it was easiest for him to contact Ms. Oliver to make these arrangements. Janet Smith was thecontact person in the case of all other reviewers. I do not find that as a result of Mr.

Thomas’ contact with Ms. Oliver that he had anysort of supervisory or management duties. In my view, this arrangement came about for reasons of convenience and efficiency only Conclusion about Contractor Status [80] The caselaw is clear that I must consider all factors when determining whether Mr. Thomas is a dependent contractor. Thematters I have considered include the fact that The Georgia Straight did not control the content of Mr. Thomas’ writing other than toapprove the show to be reviewed. Mr. Thomas was not prevented from writing reviews for other publications.

The paper was neverobligated to purchase a review from Mr. Thomas. The paper used the services of other reviewers and continued to publish theatrereviews after Mr. Thomas stopped writing them, showing that the paper was not reliant on Mr. Thomas. The strongest factors in favourof a finding of dependent contractor status are the 28 year relationship between the parties and Mr. Thomas’ reliance on the paper. However, all other factors either weigh in favour of The Georgia Straight or are neutral. After due consideration, I have come to theconclusion that Mr.

Thomas is not a dependent contractor and is therefore not entitled to reasonable notice. Reasonable Notice [81] If I am wrong and Mr. Thomas is a dependent contractor, he is entitled to reasonable notice upon the termination of his positionas a theatre reviewer for The Georgia Straight. [82] To calculate reasonable notice, the claimant cites the leading decision of Bardal v. Globe & Mail Ltd., (ONSC), where the court stated: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases.

The reasonableness of the notice mustbe decided with reference to each particular case, having regard to the 'character of the employment, the length of service of the servant,the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of theservant. [83] Although Bardal lists a number of factors for consideration, the case is clear in stating that reasonable notice depends on thefacts of each case.

It is also important to note that the Bardal factors dealt with an employee and not a dependent contractor. [84] In the decision Marbry Distributors Ltd. v. Avrecan International Inc., 1999 BCCA 172, the Court of Appeal found that theplaintiff company had an exclusive distributorship for athletic footwear with the defendant, and was a dependent contractor entitled toreasonable notice of termination. The court stated: [49] In the reasons of Mr. Justice Hinds in Yamaha, supra, this court quoted with approval the decision in Western Equipment, supra,and stated at 366-7: In Western Equip. Ltd. v. A.W.

Chesterton Co. (1983), (BC SC), 46 B.C.L.R. 64 (S.C.), after considering seven leadingcases which dealt with the length of notice for termination of an exclusive distributorship, it was stated at p. 73: The foregoing authorities indicate that the length of reasonable notice of termination of an exclusive distributorship or sales agencydepends upon the facts of each particular case. In Western Equip. the following factors were considered relevant to the determination of the length of notice in the circumstances of thatcase:

(1) The length and type of relationship between the parties.

(2) The extent of the sales force employed by the party whose distributorship was terminated.

(3) The importance of the exclusive distributorship to the party terminated.

(4) The acquisition of inventory.

(5) Time needed by the terminated party to acquire a replacement line of products and to re-establish a viable business. [50] Those factors as set forth above are not exhaustive and each case depends on its own facts. As the relationship being analysedvaries so may the weight to be attached to each of the considerations.

After considering these factors as well as some additional factorsparticular to the case before him, Hinds J.A. held that the learned trial judge was in error in awarding 16 months reasonable notice and aperiod of six months was substituted. [85] The Marbry case thus sets out factors relevant to an exclusive distributor found to have dependent contractor status. That is ofcourse not the case with Mr. Thomas and so those cited factors have no bearing here.

What is instructive of Marbry though is theconfirmation that the relevant factors to determine reasonable notice depend on the particular facts of each case. [86] I was referred to the decision Pasche v. MDE Enterprises Ltd., 2018 BCSC 701 for the proposition, stated at paragraph 83, thata dependent contractor is also entitled to notice, albeit somewhat less than that of a regular employee. Reference is made in Pasche tothe decision Weber v. Coco Homes Inc., 2013 ABQB 180 at paragraph 81 to support this statement. [87] Paragraph 81 of the Weber decision states: [81] The next step is to determine whether Ms.

Weber is a dependant contractor or an independent contractor. Again, taking all of theforegoing factors into account, in my view Ms. Weber was more dependent overall than the plaintiff in Lone Star, and did not have thedegree of independence to operate independently, with little interference or guidance as the plaintiff did in Lone Star. Ms. Weber had arelationship with Coco much like the plaintiff had with its defendant in JKC.

Her relationship with Coco is best described as that of adependent contractor, and she is thus entitled to some degree of reasonable notice; albeit less than what an employee would be entitledto. [88] This paragraph is taken from the CanLii version of this case. Counsel for Mr. Thomas referred to paragraph 81 found in theCarswell version of this decision. For some reason the Carswell version has different paragraph numbering when compared to theCanLii version of the same case.

Paragraph 81 from the CanLii version of the decision can be found at paragraph 105 of the Carswellversion of the decision. [89] It stands to reason that a dependent contractor may be entitled to a lower notice period than an employee. This would recognizethe fact that the dependent contractor occupies an intermediate category between employee and independent contractor, as referred to insuch cases as Carter v. Bell & Sons (Canada) Ltd., (ON CA), [1936] 2 DLR 438. [90] The question then turns to what factors I should consider when assessing reasonable notice. [91] In Bardal v.

Globe & Mail Ltd., the cited factors with respect to the termination of an employee were as follows: a. The character of the employment, b. The length of service of the servant c. The age of the servant and d. The availability of similar employment, having regard to the experience, training and qualifications of the servant. [92] In Pasche v. MDE Enterprises Ltd., the court considered the Bardal factors for an electrical contractor found to be a dependentcontractor: see paragraphs 79 and 80. [93] During submissions, counsel for Mr.

Thomas suggested that a common rule of thumb was an award of damages of one monthwages for every year of employment. I was cited the decision Glimhagen v. GWR Resources Inc., 2017 BCSC 761 at paragraphs 74 and75 in support of this proposition. However, this yardstick of one month of notice for each year of employment was something that thedefendant conceded and was not actually a finding of the court. I instead refer to the decision Morris v. ACL Services Ltd., 2014 BCSC1580 , which stated: [56] [The Defendant] ACL also refers to the

article of Barry B. Fisher, “Measuring the Rule of Thumb in Wrongful Dismissal Cases”.In that article, Mr. Fisher addressed certain Ontario authorities that had applied a “rule of thumb” as a starting point by which anemployee would normally receive one months’ notice for every year of service. Mr. Fisher set out to test whether the “rule” was indeedsupported by the some 1,600 decisions that he had analyzed. He concluded that generally employees with 6 to 15 years’ service receiveone month per year of service but that managers and professionals do better than employees in supervisory or technical roles.

Outside ofthat range, the “rule of thumb” was not apparent. Employees in technical or supervisory roles with six to ten years’ service were found tohave an average notice period of one month per year of service. [57] The “rule of thumb” approach was later rejected by the Ontario Court of Appeal in Minott v. O’Shanter Development CompanyLtd. (1999), (ON CA), 42 O.R. (3d) 321 at 345-46 (C.A.), leave to appeal discontinued [1999] S.C.C.A. No. 120. [58] Closer to home, while not called a “rule of thumb”, this court has described the one year/one month ratio as a “starting point”only. In Peterson v.

Wilson Logistics, 2003 BCSC 215 , Lowry J. (as he then was) stated:

[14] One month of notice for each year of employment is a sound starting point, but it is no more than a guideline. Rather, notice should be determined by considering the four Bardal factors in the context of each case. [59] I agree that as a starting point, Mr. Fisher’s analysis has some usefulness. If nothing else, it provides a starting point or basis upon which employers might consider the notice to be given and also provides such a starting point or basis for both parties in the context of any later negotiations and settlement. I note that Mr. Fisher makes this very point at page 12 of his paper.

Laskin J.A. in Minott also comments on the need for “predictability, consistency and reasonable certainty”: at 346. However, as Laskin J.A. also notes at 346, this approach inevitably gives more significance to the length of service at the expense of the other Bardal factors. [ 94 ] On the particular facts of this case, I have considered the following: 1. Mr. Thomas’s relationship with The Georgia Straight lasted over 28 years. 2. Mr. Thomas was 64 years old at the time his relationship with the paper ended. 3. Mr. Thomas worked part time. 4. Mr. Thomas was not prevented from doing other work. 5.

There was never any guarantee of work or job security. Pitches for stories were submitted and The Georgia Straight had the sole discretion to accept or reject the proposal. 6. The opportunities for similar employment were very poor. There were only a few publications in Vancouver that printed theatre reviews with no indication that they accepted freelance submissions. 7. Mr. Thomas was a dependent contractor and not an employee. [ 95 ] Some of these factors, such as the length of employment, the age of Mr. Thomas and the limited availability of similar work, call for a longer notice period.

Others factors call for a reduced notice period. Given all the above, I fix the period of reasonable notice at 20 months. Mitigation [ 96 ] The law is clear that a dismissed employee or dependent contractor has a duty to act reasonably in mitigating his or her losses. As the requirement is to act reasonably, an objective test is applied. [ 97 ] The evidence of The Georgia Straight is that they were prepared to have Mr. Thomas write other articles for them. The Georgia Straight only refused to accept theatre reviews from Mr. Thomas. [ 98 ] Mr. Thomas elected to stop all work for the paper.

He viewed the proposal to write other than theatre reviews as a demotion and that it would be humiliating for him to do other work for the paper. Throughout Mr. Thomas’ years writing for The Georgia Straight he did write articles that were not theatre reviews. Matt McLeod provided an estimate of Mr. Thomas’ non-review work for the paper at somewhere ranging from 17 to 30% of the work over a number of years. [ 99 ] The termination of the relationship between the parties did not occur in a way that was demeaning or negative. In fact, to their credit, Charlie Smith and Janet Smith wanted to meet with Mr.

Thomas to express the news personally. [ 100 ] Given that the total Georgia Straight income was a significant portion of Mr. Thomas’ total income I find it unreasonable for him to have rejected continued work for the Georgia Straight writing previews or other articles. [ 101 ] I accept that it is difficult to calculate the amount of income that Mr. Thomas would have earned had he continued working for the paper. That is the nature of the work where it is piecemeal and contingent on the acceptance of pitches.

Taking into account this uncertainty, I fix the reduction in the damages for a failure to mitigate at 10%. [ 102 ] Counsel for The Georgia Straight submitted that it was also unreasonable for Mr. Thomas to seek to become an independent theatre reviewer. It was argued that Mr. Thomas was entitled to pursue his dream of fulfilling this role but that The Georgia Straight should not be liable for any income loss suffered by Mr. Thomas while he pursued this goal. Cases that have supported this position often deal with a situation where a former employee undertakes a different career path: see for example Hyland v.

Advertising Directory Solutions Inc , 2014 ABQB 336 at paragraph 57 . However, Mr. Thomas was not seeking a change in careers. He was still seeking to be a theatre reviewer. He took steps to seek an alternate way of providing those reviews. This was not unreasonable given the limited number of publications in the Vancouver area that published theatre reviews, which was the evidence of Marsha Estelle Lederman.

Calculation of Damages [ 103 ] I previously calculated the income lost from theatre reviews at $1,500 a month. [ 104 ] With a 10% reduction due to a failure to mitigate, the amount is $1,350 a month. [ 105 ] I fixed reasonable notice at 20 months which would take us to the end of May 2018. [ 106 ] Based on $1,350 a month, I arrive at $27,000. [ 107 ] Mr. Thomas did do other work during the 20 months. His Patreon or patron income was undertaken to establish himself as an independent theatre reviewer. It was intended to replace his work as a reviewer for The Georgia Straight. In May 2018 Mr.

Thomas received $1,180 in patron income. This sum is to be deducted from the calculation of the damages, leaving a balance of $25,820. The

appropriateness of such a deduction is supported in such cases as Coutts v. British Columbia , [1998] B.C.J. No. 2531 at paragraph 55 , appeal dismissed 2000 BCCA 565 . [ 108 ] No evidence was provided by the defendant to show that Mr. Thomas could have increased the amount of his editing work so as to supplement his income and mitigate his losses. [ 109 ] Based on the above I calculate the damages at $25,820. This is the sum that I find would have been payable had Mr. Thomas been found to be a dependent contractor. That of course was not the case.

SUMMARY [ 110 ] The claim of Colin Thomas is dismissed. Mr. Thomas is ordered to pay to the defendant its filing fee for the Reply of $50. ____________________________ The Honourable Judge W. Lee The Provincial Court of British Columbia