Snider v. Reotech Construction Ltd., 2021 BCPC 238

Citation: Snider v. Reotech Construction Ltd. 2021 BCPC 238 Date: 20210824 File No: 18327 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DEAN SNIDER CLAIMANT AND: REOTECH CONSTRUCTION LTD. DEFENDANT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. ALEXANDER Counsel for the Claimant: J. Leung Counsel for the Defendant: A. Bayley Place of Hearing: New Westminster , B.C. Date of Hearing: July 12 and 13, 2021 Date of Judgment: August 24, 2021 [ 1 ] THE COURT : The claimant is a 42-year-old former construction worker.

He worked for the defendant as a general construction labourer from February 5th, 2018, until the defendant terminated him without cause on March 18th, 2020. [ 2 ] The claimant seeks damages for wrongful dismissal including five months' notice, compensation for his annual bonus, $500, statutory vacation pay and punitive damages of $20,000 against the defendant for alleged bad faith and high-handed conduct.

[ 3 ] The defendant agrees that it terminated the claimant without cause. It relies on the provisions of its Employment Policies and Procedures Manual, which I will refer to hereafter as the “Manual,” which it says, limits compensation to two weeks' salary on termination without cause. The defendant paid that amount to the claimant six months after his dismissal. [ 4 ] In the alternative, and by way of Counterclaim, the defendant seeks the return of the funds paid to the claimant.

It maintains that standards in the construction industry do not require any payment to general labourers in the event of termination without cause. It denies bad faith or conducting itself in a high-handed manner. It further argues that CERB benefits received by the claimant should be deducted from any damage award. [ 5 ] Both parties have lawyers. They have each provided the court with extensive case authorities and, in the case of the claimant, written opening and closing arguments.

I have considered the parties' submissions and the case law that they have each presented. [ 6 ] The claimant was once employed in the electronic gaming industry in the U.S. He returned to Canada in 2017 and began work as a temporary construction worker for Labour Ready. He worked on the defendant's jobsites as day labour. The defendant recognized the claimant as a good worker and interviewed him for a permanent position on January 31st, 2018. Afterward, the defendant offered him a job as a general labourer. [ 7 ] There is a conflict on the evidence about the date of the offer of employment.

The claimant said it was at the conclusion of the January 31st meeting; the defendant's witness, Jean Paul Jolicouer, said it was some time later. Nothing turns on this point. [ 8 ] The claimant accepted the defendant's offer and began work as a general labourer at a rate of $17 an hour with an agreed four- day workweek. The claimant started work on February 5th, 2018. [ 9 ] Before the claimant commenced his employment, Jolicouer informed him that the claimant would have to sign some documentation for payroll purposes.

He told the claimant a package of payroll-related documents would arrive shortly. [ 10 ] The claimant received a document package from the defendant a few days after he had commenced his employment. The package included payroll documents and the Manual. [ 11 ] The claimant said he skimmed the pages of the document package and signed where required. He admitted that he did not read the Manual at that time.

He returned the documents to the defendant by email late in the evening on February 8th, 2018. [ 12 ] The claimant worked continuously for the defendant as a regular full-time general labourer at various construction sites from February 5th, 2018 until March 18th, 2020. The claimant's salary was eventually increased to $19 an hour. He received an annual bonus of $500.

He described taking on extra responsibilities on jobsites, at times directing other workers. [ 13 ] In early 2020, the defendant's representative, Ryan Turner, who I will refer to hereafter as “Turner,” approached the claimant about possible advancement within the company. The defendant wanted to grow from within and the claimant was keen to explore future opportunities. Turner advised the claimant there were some improvements he would have to make if he wanted to be promoted to a supervisor.

They were to revisit the matter in six months. [ 14 ] On March 18th, 2020, the claimant called the defendant to advise that he was feeling unwell. He was concerned with COVID- 19. He believed that he was potentially vulnerable due to an undisclosed medical condition. The defendant told him to quarantine at home. [ 15 ] The next day, the defendant imposed a 16-week temporary layoff on the claimant. The defendant issued a Record of Employment that day to reflect the temporary layoff and indicating that the claimant's return-to-work date was unknown. [ 16 ] On June 11th, 2020, the defendant wrote to the claimant.

It said that it could not guarantee work in the weeks ahead. The claimant informed the defendant that if he was not recalled by July 8th, 2020, the end of the 16-week temporary layoff period, he would consider himself constructively dismissed. [ 17 ] On June 30th, 2020, the defendant again wrote to the claimant. It informed him that it could not guarantee any work by July 8th, 2020. It advised the claimant that his benefits would end on July 31st, 2020. [ 18 ] The claimant did not work for the defendant again. [ 19 ] The claimant had applied for the CERB benefit and searched for new employment.

The COVID-19 lockdown and Public Health directives made his job search difficult. The claimant continued to monitor job boards without success. He eventually sought retraining and certification in fields related to his previous employment. [ 20 ] The claimant did not receive any payment from the defendant on termination.

Six months later, on September 30th, 2020, the defendant paid the claimant the equivalent of two weeks' salary after the claimant had sought the assistance of counsel. [ 21 ] The claimant understood that he was entitled to reasonable notice or pay in lieu thereof in the event of termination without cause. He initiated this action on October 16th, 2020. [ 22 ] The defendant filed a Reply and Counterclaim on November 10th, 2020, relying on the terms of the Manual, as the basis for the amount that it paid to the claimant.

In the alternative, the defendant counterclaimed for the return of those funds on the basis that industry standard does not require any payment to general labourers like the claimant. [ 23 ] On January 22nd, 2021, the claimant amended his claim seeking punitive damages alleging bad faith conduct by the defendant, both on termination and during these proceedings. [ 24 ] In its defence, the defendant denies that it conducted itself in a high-handed manner in dealing with the claimant. It relies again

on the provisions of its Manual and the standards it alleges in the construction industry. Issues 1. Are the provisions in the defendant's employment manual binding on the claimant? 2. If not, what is the appropriate notice period in the circumstances? Are there other damages? 3. Are the CERB payments received by the claimant deductible from any damage award? 4. Does the conduct of the defendant justify an award of punitive damages in the circumstances of this case? [ 25 ] The claimant testified in support of his claim.

He also relied on a series of emails and correspondence with the defendant, which have been filed as exhibits in these proceedings. [ 26 ] The defendant called two of its senior construction employees as witnesses. Jolicouer interviewed and hired the claimant. Turner spoke to the claimant in early 2020 about advancement opportunities at the defendant. [ 27 ] In assessing credibility, I have instructed myself on paragraphs 186 and 187 of Bradshaw v. Stenner , 2010 BCSC 1398 , and the seminal decision of the B.C. Court of Appeal in Farnya v.

Chorney , 1952 TDLR 354. [ 28 ] Dean Snider testified in a straightforward manner. He offered a detailed account of his meetings with the defendant's representatives. He recalled shaking hands with Jolicouer at the end of their meeting on January 31st, 2018. The claimant said the defendant offered him a job. He accepted and began work on the following Monday. [ 29 ] The claimant said that he worked continuously for the defendant for 2.4 years. He was a full-time employee and never subject to seasonal layoffs.

He described how his level of responsibility increased and that he occasionally took on foreman-like supervision duties. He admitted his frustration at a lack of performance reviews at the defendant; he wanted to advance. His discussion with Turner in early 2020 had encouraged him about opportunities with the defendant. [ 30 ] The claimant was emotional when he related the events surrounding his termination. He felt vulnerable and ignored by the defendant. He thought they viewed him and other low-level construction workers like him as “dispensable”.

He believes the defendant has treated him unfairly throughout the termination process and in these proceedings. [ 31 ] In cross-examination, the defence attempted to portray the claimant as a low-level labourer, who exaggerated his responsibilities and who was not candid in his recollection of events. It pointed to inconsistencies between the claimant's testimony and emails about vacation pay.

It suggested that the claimant gave contradictory answers about whether he was bound by the confidentiality provisions of the Manual and his understanding about the repayment of CERB benefits. [ 32 ] I reject the defendant's characterization of the claimant and his evidence. The claimant was forthright. He admitted unflattering aspects of his own conduct. He acknowledged that the defendant told him he needed to improve his job performance if he were to advance beyond his position as a general labourer.

He admitted that he had not read the company manual before signing the acknowledgment. [ 33 ] The claimant also confused the CERB benefit with EI. His understanding of his obligations was unclear. I find this reflects a lack of comprehension of those benefits and their interplay. I find the claimant was doing the best to give a detailed account of the events that occurred 18 months ago.

I find any inconsistencies in his evidence are minor and attributable to the passage of time and lack of sophistication rather than an attempt to mislead this court or embellish his claim. [ 34 ] I find the claimant a truthful and credible witness. [ 35 ] The defendant's service manager, Jolicouer, testified that he had worked in various aspects of the construction industry for 40 years and with the defendant for the last five years. He interviewed the claimant on January 31st, 2018. He denied making a job offer at the end of that interview.

He said he made one shortly thereafter although he could not say when. [ 36 ] He told the claimant that he would drop off the necessary paperwork to ensure that the claimant was on the company payroll. He did not know when that occurred. He did not remember discussing any specifics of the forthcoming paperwork or advising the claimant that the documentation would include a policy manual containing a termination clause. He did not mention the Manual or termination clause at all. [ 37 ] Jolicouer related his usual practice during job interviews.

He said he would outline employment benefits that would be available after three months. He was unable to recollect any details of those benefits during his testimony. [ 38 ] Jolicouer had a limited memory of the January 31st, 2018, interview with the claimant. He agreed that he might have shaken the claimant's hand at the end but was adamant that he did not offer him a job at the time. [ 39 ] Jolicouer candidly stated that he did not directly supervise the claimant. He said he would not have known if the claimant took on foreman-like duties during his employment at the defendant.

He further testified that he had never heard of anyone receiving severance in the construction industry. [ 40 ] Turner described his background as an estimator, project manager and the principal of a construction company in Alberta before working for the defendant. He confirmed that he met with the claimant about the possibility of becoming a supervisor, as the defendant was busy and wanted to grow from within. [ 41 ] Turner testified that he had no direct supervisory relationship with the claimant. He conceded that it was possible for a labourer

to assume increased responsibilities if directed by a supervisor. [42] Turner was unaware of the details of the claimant's termination. He said he had never paid severance to anyone in the past. Heunderstood that the defendant had, in fact paid the claimant. He was not aware of any delay in that payment. [43] Both Jolicouer and Turner were forthright in their testimony. They were able to speak in generalities as to usual practices at thedefendant but could not speak specifically to the claimant's roles or responsibilities on various jobsites.

They did not testify about theemployment policies of the defendant. [44] Both defence witnesses had other important responsibilities at the defendant. The claimant was but one labourer in a group of atleast a dozen within the company. I find that their lack of detailed recollection is due in part to the passage of time and due to the factthat the claimant was not a priority for them. [45] The events surrounding the claimant's hiring and subsequent termination were more significant to the claimant.

Where there is aconflict in the evidence between the claimant and the defence witnesses, I prefer the evidence of the claimant. [46] I will turn now to a discussion of the issues. Are the provisions of the defendant's Manual binding on the claimant? [47] I find that the termination without clause provision in the defendant's Manual is not binding and enforceable on the claimant. Ifind that the terms of the claimant's contract of employment crystallized before he started his job on February 5th, 2018.

The defendantdelivered the Manual to the claimant after he had started his employment. [48] The Manual, at paragraph 3.6, contains a provision that purports to limit the claimant's compensation on termination withoutcause. If enforceable, the term is detrimental to the claimant. He never agreed to that term. The defendant did not bring this provisionto the claimant's attention and never discussed it with him. [49] There is no evidence that the claimant agreed to a variation of the original contract or that he entered into a new contract with thedefendant after he began his employment.

The defendant did not advance any new consideration: see Quach and Mitrux Systems Ltd.,2020 BCCA 25, at paragraphs 11 and 12. [50] I find that the provision of the Manual is not binding on the claimant. It did not form part of his original employment contractand does not displace his entitlement to reasonable notice of dismissal: see Valle Torres v. Vancouver Native Health Society, 2019BCSC 523, at paragraph 66. [51] The defendant's Manual is aspirational in many respects. It offers employees a vision of the company, its policies and priorities.

It employs mandatory language when addressing employee entitlements and prohibitions. Some examples drawn from the Manual areset out below and, as this is an oral judgment, I will do my best to orally emphasize the language as follows: 3.1: Benefits. Eligible employees are entitled... 3.8: Substance Abuse. Employees shall not work... 4.2: Breaks. All employees are entitled... 4.3: Expenses. Must be preapproved...

By contrast, the termination without cause provision uses permissive language: 3.6: An employee, where there is no just cause to terminate, may be eligible for written working notice, payment in lieu therefore, etcetera. (emphasis added) The provision is vague. There is no indication of factors that govern eligibility and how it is determined. An acknowledgment by anemployee that he may be eligible for the payment scheme set out in the Manual is, in itself, meaningless. Being eligible does notpreclude that employee from seeking something else.

I find that this provision of the contract is uncertain and does not bind the claimant. [52] I further find that the defendant breached the terms of its own contract by failing to pay the claimant within a reasonable time. The defendant delayed six months before making any payment to the claimant and then only after he sought the assistance of counsel. The defendant cannot rely on its own contract that it has itself breached. What is the appropriate notice period in the circumstances? Are there any other damages? [53] The seminal decision in Bardal v.

Globe and Mail, (ON SC), 1960 24 DLR (2d) 140, sets out the factors fordetermining an appropriate notice period, and I quote: 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.

The court in Bardal goes on to find that industry standard or custom is but one factor in the overall mix of considerations. [54] I reject the defence argument that there is a construction industry standard that general labourers are not entitled to reasonablenotice or pay in lieu. The only evidence offered in support of that proposition is from the defence witnesses, who are both employees of

the defendant. They are not and were clearly not qualified as expert witnesses to give opinion evidence regarding industry standards: seeWhite Burgess et al v. Haliburton, 2015 SCC 23, and Graat v. The Queen, (SCC), 1982 2 SCR 819. [55] Jolicouer and Turner both testified that they have either not paid severance or have never heard of such payments in the industry. Their testimony is directly contradicted by the claimant. He said that he had received two weeks' working notice while employed as atemporary labourer at Walker Jones, another local construction company.

The defence did not challenge the claimant on this point. [56] I find that the testimony of the defence witnesses is not determinative of the issue of overall industry custom or standard. Thereis no independent evidence of an industry standard that full-time, continuously employed construction workers are not entitled toreasonable notice on termination without cause.

Absent such evidence, I am guided by the reasons of the court in Bardal, and I quote: There is no evidence of custom in this case before me and I think I must determine what would be reasonable notice in all thecircumstances and proper compensation for the loss the plaintiff has suffered by reason of the breach of the implied term in the contractto give him reasonable notice of termination. [57] At 2.4 years of employment with the defendant, the claimant is a short-service employee: see Saalfeld v. Absolute Software,2008 BCSC 760.

That case sets out a starting point of two to three months' notice for short-service employees. The reasoning in Lathamv. Bartle & Gibson Co. Ltd., BCSC at paragraph 25, is also applicable to this case, and I quote: The plaintiff was a pleasant, committed labourer, employed at a relatively low level in the hierarchy of the company. That should notdetract from his value as a person, nor his value to the company, but it places him at a level that dictates a defined amount of notice. [58] In that case, the court fixed the plaintiff's notice entitlement at four months after 28 months of service.

To that, I would add anadditional two weeks based on the challenges posed by COVID-19 and the availability of similar employment, as contemplated by theBardal factors. The defendant terminated the claimant during a serious global pandemic. He has retrained but still has not found anotherjob. In the circumstances, I find that four and a half months is the appropriate notice given the claimant's inability to find alternate andavailable employment. [59] The claimant is entitled to compensation for the loss of his $500 annual bonus.

He is further entitled to vacation pay accumulatedto the time of termination and CPP benefits that the defendant would otherwise have paid until the end of the notice period: see ValleTorres v. Vancouver Native Housing Society, 2019 BCSC 523. Are the CERB payments received by the claimant deductible from any damage award? [60] There are conflicting authorities in British Columbia as to the deductibility of CERB benefits. Counsel have provided writtensubmissions in light of the recent decision in Andrews v. Allnorth, 2021 BCSC 1246, which counsel discovered after the last day ofargument. In that case, the B.C.

Supreme Court declined to deduct CERB benefits. In an earlier decision, Hogan v. 1187938 B.C. Ltd.,2021 BCSC 1021, the B.C. Supreme Court deducted CERB benefits from the claimant's damages for wrongful dismissal. [61] Counsel for the claimant has also cited two other cases: Iriotakas v. Peninsula Employment Services, 2021 ONSC, decidedprior to Hogan, and Slater v. Halifax Herald Limited, 2021 NSSC, which considered Hogan and reached the opposite conclusions. Each of those cases is distinguishable on its facts.

The concern articulated in Hogan was the potential for a windfall to the claimant ofCERB benefits were not deducted. The plaintiff in that case was not a salaried worker but a senior employee with a sophisticatedcompensation scheme at Mercedes-Benz. [62] Counsel's submissions about the government website and the claimant's opinion about his understanding of the CERB scheme donot constitute evidence that is determinative of whether CERB benefits must be repaid. There is no evidentiary basis to support thefinding one way or the other about the deductibility of CERB benefits.

I prefer the reasoning in Slater and I quote from paragraph 57onward: In Hogan the damage award was based on the income that the plaintiff would have earned if he had continued to work during thereasonable notice period. If the deduction were not made, he would be compensated for income that he had not lost. The employeewould be in a better economic position than he would otherwise be. It is difficult to disagree with that logic. But the understanding ofCERB seems to be developing. As the country begins to move out of the pandemic more questions are being asked about the nature of the ad hoc CERB program.

Clearly there are people who will have to pay it back. Mr. Slater will likely have to repay EI benefits for the period to which the damagesrelate. EI benefits are not deducted from awards for damages for wrongful dismissal. They do have to be repaid. Mr. Slater may have torepay CERB as well. While CERB payments were not provided as part of an insurance program, they were intended as a form of incomereplacement, provided by the federal government. The requirement for repayment makes them analogous to EI benefits. If those payments are deducted from the award of damages the justification is that Mr.

Slater should not be compensated for income thathe has not lost. The party that benefits from CERB in that case would be the Herald. The purpose of an award of damages is not topunish the Herald, but to compensate Mr. Slater. Money paid under the ad hoc program set up to provide employees with some modestlevel of protection from the financial impacts of the pandemic would then be used to cushion the blow of termination payments awardedagainst an employer. There were other programs in place to assist employers. And Mr.

Slater, after going through this situation over thelast year, would have to face the prospect of explaining to the government why he should not have to pay back the CERB payments thathe received. If it is not deducted from the damage award the likely result is that it will have to be paid back, like EI benefits. If for some reason it isnot, Mr. Slater may gain a windfall. The alternative is that the Herald would benefit from the taxpayer funded CERB payments byhaving a reduced damage award and Mr. Slater would be left providing an explanation. The CERB payments will not be directly deducted from the damage award.

I adopt that reasoning and decline to deduct the claimant's CERB benefits from the damage award. Any repayment obligation is between the claimant and the federal government and not the defendant. Counterclaim [ 63 ] Given the findings above, the defendant's counterclaim is dismissed. Does the conduct of the defendant justify an award of punitive damages in the circumstances of this case? [ 64 ] It is apparent that the claimant feels aggrieved by the defendant's dismissal. He believes he was treated unfairly and that the defendant did not deal with him in a timely manner.

The defendant's counterclaim seeking repayment of those monies caused the claimant distress. The defendant did not ascribe the same priority in dealing with these matters as the claimant. It adopted an aggressive litigation strategy in defending the claim, as is its right. The B.C. Supreme Court in Wong v.

Polynova Industries , 2021 BCSC 603 , addressed the issue of aggravated and punitive damages in the context of a wrongful dismissal claim at paragraphs 50 to 52: The law in Canada is now well settled that the fact of termination does not give rise to a claim for aggravated damages, but the manner of termination may do so in certain circumstances. Conduct of the employer which is marked by bad faith, dishonesty or may otherwise be viewed as treating the employee unfairly will often lead to an award of aggravated or punitive damages. However, the two types of damages are not identical.

Aggravated damages are compensatory, designed to recognize the impact on the plaintiff, usually emotional upset and damage to sense of self-worth, caused by the conduct of the employer at time of termination. Punitive damages are intended to punish the employer for reprehensible conduct and deter others from behaving in that fashion. In my view, neither aggravated damages nor punitive damages are appropriate in this case. I do not find any bad faith or dishonesty on the part of Polynova. There was nothing unusual about the manner of termination.

The parties had a fundamental disagreement about which of them had terminated the employment relationship. That disagreement required a ruling from the court. There was nothing dishonest nor unreasonable in the behaviour of the defendant. See also Payne v. The Kimberley Academy , 2020 BCSC 506 . [ 65 ] I am unable to find that the defendant advanced its counterclaim for the purpose of humiliating or intimidating the claimant. Both parties had counsel at the time.

The defendant raised a triable issue as to the possibility of the court finding the Manual unenforceable and I am unable to find a level of dishonesty, bad faith, of reprehensible conduct that would justify a penalty or an award for punitive or aggravated damages. Conclusion [ 66 ] The defendant terminated Dean Snider without cause and without notice. The claimant used his best efforts to mitigate his damages by monitoring online job boards and ultimately pursuing certification in a field aligned with his past employment experience. A reasonable notice period is four and a half months.

The claimant will also recover his vacation pay to the time of termination and any CPP contributions that the defendant would have made during the notice period. He will recover his annual bonus of $500. The amount already paid by the defendant to the claimant will be deducted from the damage award.

The claimant will also recover court order interest and his filing fees and disbursements. [ 67 ] The claim for punitive damages and aggravated damages is dismissed and the defendant's counterclaim is dismissed. [PROCEEDINGS] [ 68 ] THE COURT: In the circumstances, I am going to award -- this offer was made back in February. There were issues but, at the same time, this could have and likely should have settled. I award the claimant a further $1500,00 pursuant to Rule 10.1 (REASONS FOR JUDGMENT CONCLUDED)