Treminio v. Aveda Institute Date:, 2017 BCPC 348

Citation: Treminio v. Aveda Institute Date: 20171121 2017 BCPC 348 File No: 170350 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: GRISELDA TREMINIO CLAIMANT AND: FLOWER POWER ENTERPRISES INC., dba AVEDA INSTITUTE VICTORIA DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Claimant: J. Aiyadura Counsel for the Defendant: C. Siver

Place of Hearing: Victoria, B.C. Date of Hearing: November 8, 2017 Date of Judgment: November 21, 2017 I. Introduction [1] The defendant, Flower Power Enterprises Inc., dba Aveda Institute Victoria (the “Aveda Institute”), brings this application foran order pursuant to Rule 7(14)(

i) of the Small Claims Rules dismissing Ms. Treminio’s claim on the grounds it discloses no triableissue. [2] Ms. Treminio’s claim is one for damages arising out of her dismissal without cause from the Aveda Institute a mere week or soafter she started work there as an instructor. In light of the without cause termination, which all agree was based on a “gut instinct” byher employer that she would not work out, Ms. Treminio was given one month’s salary in lieu of notice. [3] What might otherwise have been a straightforward notice period challenge is complicated by Ms.

Treminio’s claim that shemoved to Victoria from her home in Winnipeg on the strength of the Aveda Institute’s offer of employment, and that the defendant knewthis. In so doing, Ms. Treminio maintains she left permanent employment and incurred not insubstantial moving and other expenses. She seeks damages far in excess of one month’s salary. [4] The issue in this application is whether it is manifestly clear on the pleadings, as well as on affidavit material, that the claimcannot succeed. II. The Nature of the Claim [5] Ms.

Roxana Da Costa, Senior Educational Administrator/Admissions Director of the Aveda Institute, gave sworn evidence byway of an affidavit dated June 1, 2017, that sometime in May 2014, the Aveda Institute published an on-line ad to fill a position at theInstitute as an instructor. Ms. Treminio replied to the ad soon after and thus began a series of correspondence between Ms. Da Costa andMs. Treminio which ended with an offer of employment. [6] The details of these discussions are, for the most part, committed to writing via email exchanges. Ms.

Treminio does aver inher affidavit filed November 2, 2017, to at least two telephone conversations, one of which occurred on or about May 28, 2014. Atparagraph 9 of her affidavit, Ms. Treminio swears it was during this conversation that she told Ms. Da Costa that she and her husbandwould look for a house here in Victoria only if she first secured a job here. Ms. Da Costa agrees that this was discussed even though (andnothing turns on this) one or the other of the parties is confused about the date the conversation occurred. Ms.

Da Costa goes further andswears at paragraph 5 of her affidavit that she made no promises or statements to Ms. Treminio at any time about job security. [7] Ultimately, Ms. Treminio was offered employment with the Aveda Institute on May 6, 2015. As indicated, Ms. Treminio andher husband sold their house in Winnipeg, which on the evidence had been on the market for some time before that date, and bought ahouse locally. [8] There appears to be no dispute that the offer of employment and the terms of employment are largely captured in an email sentby Ms. Da Costa to Ms. Treminio dated May 15, 2015.

The email contains information sent by Ms. Da Costa to Ms. Treminio a yearearlier on June 13, 2014, along with some additional details. The May 2015 email includes an acknowledgment by Ms. Da Costa thatMs. Treminio is moving to Victoria and confirms earlier details of the employment contract such as the starting teaching wage and thesubsequent wage increase after the three month introductory or training period followed by a yearly review. [9] While I make no finding regarding Ms. Treminio’s observation at paragraph 10 of her affidavit that Ms.

Da Costa’s email ofJune 13, 2014, leaves the impression that she might be entitled to a promotion, I acknowledge it is capable of such a reading. On its face,the email does not leave the impression of any probationary period, for example. [10] Ms. Treminio started her employment with the Aveda Institute on August 19, 2015. Much was made in this application aboutan Employee Handbook that was presented to Ms. Treminio on August 20, 2015, including a reference to the decision of the SupremeCourt of Canada in Rahemtulla v.

Vanfed Credit Union, (BC SC), [1984] BCJ No. 2790, at paragraph 21, wherein thecourt sets out the law regarding the contractual force of such a document. [11] In the end, counsel for the defendant submitted that the Handbook was relevant to determining what Ms. Da Costa would havetold Ms. Treminio regarding job security. Such a point would undoubtedly be a triable issue. [12] Still, a

section of the Handbook drawn to my attention by counsel for the Aveda Institute constituted (once signed) anacknowledgement by the employee that their employment relationship with the employer was at will, for no specified period of time, andcould be terminated by either party at any time for any reason with or without notice or cause. [13] I accept that the Handbook states the typical employment relationship for the most part. I do not accept that by signing theHandbook in the circumstances as outlined in the pleadings and affidavit evidence, it is manifestly clear Ms.

Treminio agreed to anemployment contract in which she could be terminated without cause and without any notice. That, in my view, is a triable issue. [14] Ms. Treminio admits to signing the Employee Handbook, though not to reading it or understanding it. There is then someadditional confusion in the evidence (though again in my view nothing turns on it) concerning the date on which Ms. Treminio wasfired. Accepting the date of termination was August 28, 2015, this would mean Ms. Treminio was employed by the Aveda Institute forslightly more than a week when her contract was terminated.

As I indicated earlier, the reason given by one of the Institute’s employees

was the “gut feeling” that Ms. Treminio was just not going to work out. [15] The termination was devastating to Ms. Treminio as she had only just relocated to Victoria. She has given some evidence of herattempts to mitigate the loss but for a number of reasons was unable to find work until March 21, 2016 and even then only as a stylist inSooke at a much reduced wage. [16] Ms. Treminio’s claim for damages for both moving and associated expenses and for an extended notice period turns in largepart on whether she was lured or induced to come to Victoria by the Aveda Institute, leaving behind a permanent job.

In this regard, thedefendant maintains that even if this court accepts everything set out in Ms. Treminio’s pleadings and her affidavit, her case falls farshort of allurement. The defendant seeks an order in this hearing that the claim be dismissed. III. Jurisdiction to Dismiss [17] Rule 16(6)(

o) of the Small Claims Rules confers on a judge hearing an application the authority to make any order the judgeotherwise has the power to make. In this instance, the Aveda Institute relies on Rule 7(14)(

i) which gives a judge sitting in a settlementconference jurisdiction to dismiss a claim. [18] Rule 7(14)(

i) provides that at a settlement conference, a judge may: (

i) dismiss a claim, counterclaim, reply or third party notice if, after discussion with the parties and reviewing the filed documents, ajudge determines that it (

i) is without reasonable grounds, (ii) discloses no triable issue, or (iii) is frivolous or an abuse of the court's process. [19] A number of judges of this court, including Judge Stansfield in Belanger v. AT &T Canada Inc., [1994] B.C.J. No. 2792, haveacknowledged that Rule 16(6)(

o) can support an application to dismiss a claim outside of a settlement conference. Other cases in supportof this proposition include Shantz, Gorman and Godfroid, 2012 BCPC 81 and Watch Lake North Green Lake Volunteer Fire Departmentv. Haskins et al., 2010 BCPC 114. [20] In Sigurdur v.

Fung, 2007 BCPC 239, Judge Skilnick reviewed a number of cases in which claims were dismissed at thesettlement conference stage and offered the following observation of the purpose of the Rule at paragraph 4: [4] One of the functions of a Settlement Conference in Small Claims proceedings is as a cursory test of the merits of the claim.

TheSettlement Conference Judge is essentially a gatekeeper whose task it is to keep out those claims which have no merit, those which areunsupported by any evidence (without weighing the existing evidence) and those whose outcome can be easily determined without asignificant expenditure of the court's time and resources, such as on a point of law. The dismissal of a claim at a Settlement Conference isa remedy that should be used with caution and only in clear cases. See Eco-Tourism 2010 Society v. Vancouver 2010 Bid Corporationand the Queen 2005 BCPC 23; Cecil v.

Holt-Renfrew [2001] B.C.J No. 789; 2001 BCPC 54. [21] While it was held in Belanger that the Court has jurisdiction to dismiss a claim on an application, Judge Stansfield also noted atpara. 7 that the court should avoid using Rule 16(6)(

o) to dismiss claims unless it is necessary to do so in order to resolve the claim inaccordance with the purpose of s. 2 of the Small Claims Act, that being to resolve cases in a just, speedy, inexpensive and simple amanner as possible. [22] Even so, I am mindful of the court’s duty to balance this against the other injunction of this court which is to strive to makesense of claims brought before us in a way that will enable persons to proceed to trial - even if they are not represented by counsel -always bearing in mind that if a claim is bound to fail for any number of reasons, it ought to be terminated as quickly as possible.

IV. Analysis [23] In this instance, the only question is whether it is manifestly clear a court could not conclude on the evidence or the pleadingsthat Ms. Treminio was lured from Winnipeg to Victoria by the Aveda Institute such that it should be liable for damages as claimed orotherwise. [24] Bearing in mind the facts as I have set them out above, I have considered a number of legal authorities in which allurement orinducement has been found to justify an increase in the normal notice period.

These cases provide insight into the circumstances inwhich inducement or allurement can be found to exist. [25] In support of its application, the Aveda Institute cites the decision of the Supreme Court of Canada in Wallace v. United GrainGrowers Ltd., (SCC), [1997] 3 SCR 701, where the court acknowledged at paragraph 83 that a notice period could beincreased in instances where an employee had shown they had been induced to leave previous secure employment.

The quote is set outfor convenient reference as follows: 83 One such factor that has often been considered is whether the dismissed employee had been induced to leave previous secureemployment: see e.g. Jackson v. Makeup Lab Inc. (1989), 27 C.C.E.L. 317 (Ont. H.C.); Murphy v. Rolland Inc. (1991), 39 C.C.E.L. 86(Ont. Ct. (Gen. Div.)); Craig v. Interland Window Mfg. Ltd. (1993), (BC SC), 47 C.C.E.L. 57 (B.C.S.C.).

Accordingto one authority, many courts have sought to compensate the reliance and expectation interests of terminated employees by increasing theperiod of reasonable notice where the employer has induced the employee to "quit a secure, well-paying job . . . on the strength ofpromises of career advancement and greater responsibility, security and compensation with the new organization" (I. Christie et al.,supra, at p. 623).

[26] Of the cases cited by the Supreme Court of Canada in Wallace, is the decision of McMurtry A.C.J. O.C. in Murphy v. RollandInc. (1991), 39 C.C.E.L. 86, where the court wrote: I find as a fact that the defendant aggressively lured or enticed the plaintiff to leave secure employment in an industry that ischaracterized as "narrow" and "cyclical". The defendant knew when it terminated the defendant's employment that the industry was in adown turn and that the plaintiff could reasonably expect to find relocation within the industry difficult in a depressed job market.

There are a number of decisions which do establish that the fact of allurement with respect to the encouragement of an employee to leavea secure job for another is to be taken into consideration in determining the reasonable period of notice. Isaacs v. MHG Int. Ltd. (1984), 4C.C.E.L. 197 (Ont. C.A.), Jackson v. Makeup Lab Inc. (1989), 27 C.C.E.L. 317 (Ont. H.C.). [27] In Jackson v. Makeup Lab Inc. Justice Rosenberg made the following observations of the case at trial regarding the plaintiff,Mr.

Jackson: The plaintiff was approached on a "cold call" by an employment agency and was intrigued by the call and agreed to an interview. Aftera period of months and three separate interviews, he was hired by the defendant, at a salary of $45,000 per annum, as plant manager, aposition very much equivalent to that which he held at a previous employment. While there is not a great deal of difference in many areas between the evidence given by the plaintiff himself and the defendant'srepresentative Mr. Doyle, where there is a difference I accept the evidence of the plaintiff.

He was, in my view, frank and open in hisversion of the various matters and his responses to questions put to him in the witness box both by the plaintiff's counsel and thedefendant's counsel. I find that the picture painted by the employment agency and by the employer was one of a company with plans for major futureexpansion, including expansion into the United States, and that the plaintiff was induced to leave his secure employment by the pictureof a greater potential for him with the defendant than he enjoyed under his former employment. [28] In Isaacs v. MHG Int.

Ltd., the appellate court simply accepted there was evidence the respondent was “lured by the appellants’promise of career employment.” [29] Ms. Treminio has put forward a number of cases in which notice periods have been increased for relatively short periods ofemployment on proof of allurement or inducement. These include Antidormi v. Blue Pumpkin Software Inc., (ONSC), where the evidence indicated the plaintiff was actively recruited by the defendant and given some promise of job security. [30] In Brockenborough v. Restauronics Services Inc., [1985] O.J.

No. 2832, the plaintiff was awarded six weeks’ notice after hisemployment contract was terminated within two days of its start. In Brockenborough, the court accepted that the plaintiff had beenpersuaded to leave an existing job for work with the defendant. [31] In Cassady v. Wyeth-Ayerst Canada Inc., (BC CA), [1998] B.C.J. No. 1876, the court granted an extendedperiod of notice based on a finding that the plaintiff had given up other job opportunities having been told she was being hired by thedefendant as a permanent employee.

Instead, the plaintiff was fired after ten weeks. [32] As the court in Cassady notes at paragraph 19, Ms. Cassady’s claim was not one of being induced to leave secure employment. Rather, her case was one where she maintained she had the prospect, before accepting the defendant’s offer, of secure employment. Inthat regard, the discussion of the Supreme Court of Canada in Wallace, at paragraphs 84 and 85, cited by the Court in Cassady, bearsconsideration. There the court wrote: 84 Several cases have specifically examined the presence of a promise of job security: see e.g. Makhija v.

Lakefield Research (1983),14 C.C.E.L. 131 (Ont. H.C.), affirmed by the Ontario Court of Appeal (1986), 14 C.C.E.L. xxxi; Mutch v. Norman Wade Co. (1987), (BC SC), 17 B.C.L.R. (2d) 185 (S.C.). In particular, I note that the British Columbia Court of Appeal recently adoptedthis approach in Robertson v. Weavexx Corp. (1997), (BC CA), 25 C.C.E.L. (2d) 264. The facts of this case were verysimilar to those currently before this Court. Writing for the court, Goldie J.A. stated at pp. 271-72.

Also part of the inducement to the respondent in making the move he did was, no doubt, the discussions as to long term employment.. . . As I have concluded, those discussions lacked contractual force in terms of the respondent's assertion of a fixed term contract butnevertheless, they were and are, in my opinion, significant on the issue of reasonable notice. 85 In my opinion, such inducements are properly included among the considerations which tend to lengthen the amount of noticerequired.

I concur with the comments of Christie et al., supra, and recognize that there is a need to safeguard the employee's reliance andexpectation interests in inducement situations. I note, however, that not all inducements will carry equal weight when determining theappropriate period of notice. The significance of the inducement in question will vary with the circumstances of the particular case andits effect, if any, on the notice period is a matter best left to the discretion of the trial judge. [33] The question of inducement was also considered by Justice Fisher, as she then was, in Pollock v.

Cotter, 2005 BCSC 1799,wherein the plaintiff was granted five months’ severance following the termination without cause of a five-month employment contract. The court’s reasoning is found at paragraphs 16 to 18 as follows: [16] Employers have the right to reorganize their businesses as they see fit. When positions are made redundant, employees are entitledto reasonable notice or damages in lieu of such notice. Nevertheless, in the particular circumstances of this case, where the defendantknew that Ms.

Pollock, at age 59, was concerned about job security, its decision to eliminate her position only five months after she washired was unfair. [17] At the time the parties entered into the employment contract, both assumed and hoped that the employment relationship would be along one. Neither party anticipated that the position of administrative assistant would no longer be required after only five months.

Clearly, Ms. Pollock would not have accepted the position if she knew this was a possibility. While the defendant made no explicitassurances in this regard, when it advertised the position and assured Ms. Pollock in her second job interview that its business was viable,such assurances were implicit. Ms. Pollock had a reasonable expectation that the job for which she had been hired would continueindefinitely or at least for a reasonable period of time. [18] This was not an inducement as in Wallace v. United Grain Growers Ltd. (1997), (SCC), 152 D.L.R. (4th) 1(S.C.C.). The defendant did not seek out Ms.

Pollock and make promises of job security to induce her to leave her previous employment.However, it did want her for the job, it was aware of her circumstances and concerns, and implicit in the offer of employment was someassurance that the job would not change in the immediate future. This was not just the optimism that exists at the start of any newemployment.

In the context of this case, some weight should be given to this implicit assurance when determining the appropriate noticeperiod. [34] For the reasons set out in Pollock, reproduced above, and those in Wallace, particularly at paragraphs 84 and 85, I find, firstly,that it is manifestly clear that Ms. Treminio will not succeed in her claim that she was induced to move to Victoria by the AvedaInstitute’s offer of employment. There is, in this case, no sense in which the Aveda Institute sought out and allured or induced Ms.Treminio to move to this city. [35] At best, Ms.

Treminio is someone who was minded to move somewhere, including Victoria. When the Aveda Institute postedits job advertisement, Ms. Treminio would have seen that as an opportunity and one that she followed up. [36] I see no basis in the pleadings or the evidence on which Ms. Treminio could succeed in any claim for damages arising out ofmoving or other costs associated with the move. Any part of Ms. Treminio’s claim addressing damages on these grounds must bedismissed. However, in my view, Ms.

Treminio’s claim for an extended notice period is a different matter. [37] To quote again from the reasons in Pollock, at paragraph 33 “the proper period of notice should depend on the expectations ofthe parties at the time the contract was made…” The case for an expectation by Ms. Treminio that her job would be of some durationsuch that the circumstances would call for an extended notice period cannot be entirely discounted.

As the court in Wallace wrote atparagraph 85, “the significance of the inducement in question will vary with the circumstances of the particular case and its effect, if any,on the notice period is a matter best left to the discretion of the trial judge.” [38] In my view, it is not manifestly clear in the circumstances before me that Ms. Treminio’s claim for notice over the one monthperiod cannot succeed such that it must be dismissed. There is in the evidence some basis for the claim of an expectation in all thecircumstances that Ms. Treminio would have some job security.

It is arguable at least that she was not apprised of any period ofprobation, and that in the circumstances, her expectation would be something other than that she would be terminated within days on thebasis of a “gut instinct.” Just as in Wallace, I find this is a matter best left to the discretion of the trial judge. V. Conclusion [39] For the reasons set out above, I will allow Ms. Treminio’s claim for reasonable notice in the circumstances to proceed but that isthe extent of it. The remainder of the claim for damages is hereby dismissed. L. Mrozinski Provincial Court Judge