Brash v. Gustafson’s Auto Service Ltd., 2019 BCPC 259

Citation: Brash v. Gustafson’s Auto Service Ltd. 2019 BCPC 259 Date: 20191101 File No: 19-1844 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: WILLIAM CHARLES BRASH CLAIMANT AND: GUSTAFSON'S AUTO SERVICE LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. WHYTE Appearing on his own behalf: Brash, W. Appearing on his own behalf: Gustafson, K. Place of Hearing: Williams Lake , B.C.

Date of Hearing: September 23, and 24, 2019 Date of Judgment: November 1, 2019 INTRODUCTION [ 1 ] There was a time when much commerce was conducted on the basis of a “handshake.” Rather than reduce the terms of an agreement to writing, parties accepted they had a mutual understanding, and relied on the honour and truthfulness inherent in the transaction, and each other, as protection against any misapprehensions. [ 2 ] That golden era of business has long passed. It is hoped that, if nothing else, this case serves as a cautionary tale against conducting business on the basis of a handshake in the modern era.

Misunderstandings occur, and disputes arise. When they do, it is incumbent upon the parties to maintain a record to show the basis upon which the agreement was struck. Those who choose not to establish such a record do so at their own peril.

[ 3 ] William Brash (hereafter referred to as the “Claimant”) seeks damages for wrongful dismissal against his former employer, Gustafson’s Auto Service Ltd. (hereafter referred to as the “Defendant”). The Defendant was represented at trial by Kerry Gustafson, President and Director of the Defendant. For purposes of clarity, I will refer to the Defendant as “he,” as the Defendant was represented by Mr. Gustafson.

POSITION OF THE PARTIES [ 4 ] The Claimant says he verbally accepted an offer of employment as Sales Manager tendered by the Defendant on the understanding that the offer guaranteed him three months of employment at a monthly salary of $5000.00. He says he was fired three weeks after he commenced working for the Defendant. He seeks damages equal to the two months and one week of wages he says he was guaranteed. He also seeks reimbursement for costs he incurred by moving from Richmond to Williams Lake. [ 5 ] The Claimant continues to reside in Williams Lake.

He says he was unable to afford to move back to Richmond after he was fired. Consequently, he also seeks the costs of moving back to Richmond, BC. As these costs have not been incurred, he provided the Court with what he viewed as a reasonable estimate of these moving costs. He also seeks reimbursement of his court fees. [ 6 ] The Defendant acknowledged he hired the Claimant to work as Sales Manager of its Williams Lake based Chrysler auto dealership at a salary of $5000.00 per month.

He submitted, however, that the terms of employment included a three month probationary period, during which the Claimant’s performance and fit was to be assessed. The Defendant said the Claimant performed poorly in his first three weeks of employment, and was clearly not going to work out as a long term employee. [ 7 ] The Defendant submitted that he was entitled to let the Claimant go during the probationary period without just cause. The Defendant took the view that he was not required to provide severance under the circumstances; nor was he responsible for the Claimant’s moving costs.

He said the Claimant relocated to live on a property he owned in 108 Mile Ranch. He said he would not have hired the Claimant if he was not already intending to move to the Cariboo region. [ 8 ] Each of the parties represented themselves in the hearing. As such, it is important to lay out in some detail the legal and factual basis for my decision.

SUMMARY OF THE EVIDENCE [ 9 ] The Claimant was a long-time resident of Richmond, BC. He said he met the Defendant at his car dealership in Williams Lake on March 28, 2018. The two had a brief conversation pertaining to the Claimant’s potential employment as Sales Manager for the dealership. [ 10 ] On April 2, 2018, the Claimant submitted a cover letter and resume to the Defendant. The two set up a meeting on April 4, 2018 to further discuss the Claimant’s candidacy. During the April 4, 2018 meeting, the Claimant provided references from past employers.

The two discussed generally their respective expectations regarding the Claimant’s employ. [ 11 ] The Claimant said he was offered the position of Sales Manager at a monthly salary of $5000.00, which he said was “guaranteed” for three months, after which he would be eligible for extended health benefits. He took this to mean that, regardless of what might happen afterward, he was to receive $5000.00 per month for three months. The Claimant said this was the basis upon which he agreed to relocate from Richmond to Williams Lake.

The Defendant assisted the Claimant in his relocation by providing him a truck and trailer. [ 12 ] The Claimant rented an apartment in Williams Lake, and commenced work at the Defendant’s car dealership on May 4, 2018. He said he worked five days a week until May 24, 2018. On that date, at around 5:00 p.m., the Claimant said he was handed his final paycheque and told that he was not the right fit for the Defendant’s dealership. [ 13 ] The Claimant testified he was not informed of any major issues with his performance, despite talking with the Defendant on a daily basis.

Other than being told on one occasion that he had bad breath, he said he was oblivious to the Defendant’s concerns. [ 14 ] The Claimant said he and the Defendant discussed potential employment in another capacity at one of the Defendant’s other dealerships. He said the Defendant told him he needed time to think about it. [ 15 ] Over the next few weeks, the Claimant said he kept in touch with the Defendant about possible job opportunities. Finally, on June 15, 2018, the Claimant said the Defendant told him that he had not found an appropriate job opportunity in any of his businesses.

The Claimant said he told the Defendant he expected him to honour his guarantee of $5000.00 per month for three months. The two argued, and the Defendant demanded the Claimant leave his dealership and not return. [ 16 ] The Defendant submitted in his evidence that both he and the Claimant understood that the three month term was a probationary period, during which the Claimant’s suitability would be assessed.

The Defendant said this was standard practice in the automotive sales industry, and in fact was a general business practice. [ 17 ] During his three week tenure, the Defendant said the Claimant performed poorly as Sales Manager. His complaints were particularized as follows: 1. He was unprofessional in his dress and demeanour; 2. He often appeared flustered and disorganized; 3. He changed the location of used vehicles on the lot, which resulted in keys being lost and time wasted; 4. He was unable to properly appraise the value of used vehicles, and relied on outside sources for assistance;

5. His overall hygiene was unsatisfactory; on one occasion he was directed to go home, shower, and change his clothes; 6. He was overly informal with female staff, and used inappropriate terms such as “dear” and “good looking” when dealing with them (which resulted in complaints from at least one staff member); 7. He was unable to conclude business sales in a timely fashion, or at all, which caused commissioned employees (and the dealership) to lose money (this resulted in at least two salespeople registering complaints with the Defendant); and 8.

He had difficultly grasping the dealership’s computer system, and appeared unwilling to take notes to assist him in learning how to operate it. [ 18 ] In general, the Defendant viewed the Claimant’s performance as sub-par. He said he met with the Claimant to address these issues. No record of these meetings, or the results of them, was tendered in evidence by the Defendant. However, two other witnesses testified for the Defendant. [ 19 ] Kari Siebert is the Defendant’s Financial Services Manager. She testified her position and responsibilities put her in close contact with the Sales Manager.

She said once the Sales Manager approves a vehicle purchase agreement, she sits down with the customer to work out financial arrangements. [ 20 ] Ms. Siebert described many of the complaints addressed by the Defendant in his evidence. She said the Claimant was “terrible” and “disorganized” in his work. He appeared flustered when dealing with salespersons; he never learned the company software program; he was unable to use the Customer Credit Bureau program properly; and he used overly informal, discourteous names when referring to her, even after she told him to call her by her name. [ 21 ] Ms.

Siebert supported the Defendant’s evidence regarding the Claimant’s hygiene issues. She agreed on one occasion the Claimant was directed to go home and change his shirt. [ 22 ] James Harvey is employed as a salesperson with the Defendant. He described the Claimant in similar terms. He said the Claimant appeared to be out of his depth in the modern world of vehicle sales, especially regarding the role of computers. [ 23 ] The Claimant elected not to cross examine the latter two witnesses in any substantive way.

He accused them of being untruthful, and questioned how they could even be allowed to testify, as they are current employees of the Defendant. He took the view that they tailored their evidence to support the Defendant’s case. [ 24 ] A challenging aspect of this matter, for both parties, is the fact that they did not reduce to writing any of the terms of the Claimant’s employment, not in text, email or any other written form. Each appeared to rely on what he believed was a mutual understanding of the conditions of employment.

Once the arrangement broke down, each asserted a different view of those conditions, resulting in bad feelings and an eventual resort to litigation. ANALYSIS AND FINDINGS OF FACT [ 25 ] The Defendant submitted the Claimant was untruthful in his resume, in that he inferred he held a current, valid salesperson’s license when he did not. The Claimant said he provided his most recent salesperson’s license, which expired in June 2009. He said it was a simple matter to become reinstated as a licensed salesperson.

The dealer forwards the application and fee to the Vehicle Sales Authority, who determines if further education (consisting of online courses) is required. Once the applicant’s educational prerequisites are completed, the license is renewed. The Claimant submitted the responsibility for salesperson licensing is borne by the dealership. [ 26 ] I find that is not the case. A review of the Salesperson Licensing Regulation , B.C. Reg. 202/2017 leads me to conclude licensing is the responsibility of the applicant, not the dealership.

However, I am not convinced the Claimant deliberately deceived the Defendant regarding the status of his salesperson license. I accept what was the evidence of both parties: an individual can work for up to 90 days at a dealership without having a current salesperson license. This grace period allows for the individual to apply for and receive their license. In this case, no application was made for licensing, as the Claimant was let go before the Defendant was prepared to undertake the expense of paying for the application.

Was the Claimant’s Employment Subject to a Probationary Period? [ 27 ] The Defendant submitted that his offer of employment included a three month probationary period. He said it was entirely reasonable that he have the opportunity to assess the Claimant’s fit within his business, as well as his ability to execute his duties appropriately.

In support of this position, the Defendant testified the Claimant would not receive employment benefits until 90 days after he commenced work. [ 28 ] The inference I was asked to draw was that only after the 90 day period was successfully completed would the Claimant be considered a permanent employee. As the Claimant was deemed unsuitable for the work for which he was hired, the Defendant submitted he was entitled to terminate the Claimant’s employment without notice or severance. [ 29 ] The Claimant submitted there was no discussion about a probationary period.

Rather, his acceptance of the offer was premised on a guarantee of employment for three months at $5000.00 per month. [ 30 ] I accept it is common for employers to hire new employees on the basis of a trial period, during which their suitability for long term employment within the organization can be evaluated. As noted in Jabot v. Concert Industries Ltd.

(1997) B.C.J. No. 2403 (BCCA) , a probationary period not only allows an employer to consider the technical skills of an employee, but also to assess his or her character, and determine if the employee is suitable for the organization. For this reason, it is understood the test for dismissal under a probationary period is “suitability,” and not “just cause.”

[31] I accept the standard for dismissal of a regular employee is “just cause.” This places a higher burden on an employer. In contrastto probationary period, the dismissal of a regular employee requires proof there was misconduct on the part of the employee that justifiedthe dismissal. Absent such proof, a regular employee is entitled to a period of notice, or severance in lieu of notice: Ly v. BritishColumbia (Interior Health Authority) 2017 BCSC 42 (“Ly”) at para. 21.

Indeed, there may also be a duty to warn a regular employee thathis or her performance is unsatisfactory prior to dismissal, thereby allowing the employee an opportunity to demonstrate they canexecute their duties to an acceptable standard: see Baumgartner v. Jamieson, 2004 BCSC 1540. [32] The existence of a probationary period is a question of fact, to be determined on a case by case basis.

An express probationaryclause in a contract of employment may rebut the presumption of reasonable notice, provided no statutory entitlement is contravened: Lyat para. 21. [33] In the instant case, neither the Claimant nor the Defendant tendered a single document describing the terms and conditions ofthe offer of employment. Despite this, the Defendant submitted the Court ought to accept a probationary period was implied, given it is acommon, if not universal, basis upon which employment contracts are based. [34] I cannot accede to this submission.

In the absence of any documentation spelling out the terms and conditions of employment, Iam unprepared to find that an express condition of the verbal contract of employment included a probationary term. If the Defendantwished there to be such a term, he was obligated to provide notice in writing to the Claimant. It is he who bears the consequence offailing to do so. [35] The Defendant might well be correct in his submission that it is common for new employees to be hired on a probationary term,especially in the car sales business.

However, that fact does not relieve him of the burden to confirm the nature of the probationary termfor a given employee, and reduce it to writing. [36] Even if I had accepted the parties agreed the Claimant’s three month term was “probationary,” I would not have reached adifferent conclusion. It is insufficient to refer to an employee’s initial term of employment as “probationary” without providing detailsdescribing what exactly is meant by the reference to a probationary period: Easton v. Wilmslow Properties Corp. [2001] O.J.

No. 447. [37] I conclude the Claimant was hired as a regular employee of the dealership. Was the Claimant Terminated “For Cause”? [38] Having determined a probationary period does not apply, the next issue to be determined is whether the Claimant was fired “forcause.” [39] As noted by Hinds, J. in Macdonald v. Richardson Greenshields of Can. Ltd., (BCSC) at paragraph 41: A description of the type of conduct that will constitute just cause for termination of employment without notice is expressed in thefrequently quoted judgment of Schroeder J.A. in R. v. Arthurs; Ex parte Port Arthur Shipbldg.

Co., (ON CA), [1967] 2O.R. 49, 62 D.L.R. (2d) 342 at 348: If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, orprejudicial to the employer’s business, or if he has been guilty of willful disobedience to the employer’s orders in a matter of substance,the law recognizes the employer’s right summarily to dismiss the delinquent employee. The degree of misconduct must be that which shows that the employee has disregarded the essential conditions of the contract of service:see Laws v.

London Chronicle (Indicator Newspapers) Ltd., [1959] 1 W.L.R. 698 at 700, [1959] 2 All E.R. 285 (C.A.). [40] Generally speaking, unsatisfactory performance or minor misconduct does not constitute just cause. [41] The issue of termination for cause is complicated by the lack of expectations for the Claimant’s job performance being reducedto writing. Neither party tendered any documents spelling out, for example:

a) The Claimant’s duties or responsibilities;

b) The Defendant’s performance expectations;

c) Any performance review dates, or parameters for evaluating the Claimant’s performance; or

d) Any communications reduced to writing showing the Defendant was unhappy with the Claimant’s performance, or warning theClaimant that he could be terminated if he did not meet the Defendant’s expectations. [42] The Defendant submitted that he spoke with the Claimant several times about various issues related to his performance as SalesManager. The Claimant said he was blind-sighted when he was terminated, as he had no indication he was not meeting his employer’sexpectations. [43] I accept, from the Defendant’s point of view, that the Claimant’s performance was unsatisfactory.

I accept he was not fitting inwith the Defendant’s work environment. I further accept the Defendant considered him unsuitable for the position for which he washired, and incompatible with his vision. [44] However, I do not find the Claimant was dismissed “for cause” as described in Macdonald v. Richardson Greenshields. Theacts complained of by the Defendant ranged from minor annoyances and differences regarding business practices, to concern theClaimant was underperforming in his duties as Sales Manager.

In the absence of written standards of performance against which tomeasure the Claimant’s progress, I do not find, after three weeks, his performance was so egregious that it constituted just cause fortermination.

[45] I therefore conclude that the Claimant was dismissed without just cause. He was entitled to reasonable notice. In lieu of notice,he is entitled to damages that flow from the failure to observe the contractual obligation to give reasonable notice.

Is the Claimant Entitled to Three Months of Guaranteed Salary? [46] Before proceeding, I wish to deal with the Claimant’s assertion that he was entitled to a guaranteed income for three months.This amounts to $11,000.00 of his $15,000.00 claim. [47] I dismiss the Claimant’s argument that he was guaranteed three months of income, simply by accepting the Defendant’s offer ofemployment.

I do so in large part for the same reasons I dismissed the Defendant’s claim of the existence of a probationary period.Neither the Claimant nor the Defendant tendered a single text, email, letter or other document outlining the terms of the Claimant’semployment. In the absence of objective evidence, the Court is left to assess what the agreement was, based on the testimony tendered attrial. [48] I am not prepared to find that the Defendant guaranteed the Claimant the equivalent of $15,000.00 in salary simply by acceptingthe offer of employment as Sales Manager.

Such an arrangement would make virtually no sense for the Defendant. It would bind him topay the salary irrespective of the Claimant’s performance or fit, and in the face of incompetence or other negative behaviours that fellshort of providing “just cause” for dismissal. [49] Parties can make such agreements for guaranteed remuneration. However, in the instant case, given the disagreement as toterms and without objective evidence to support the Claimant’s position, I do not find he has met the burden to prove on a balance ofprobabilities such a term existed in this verbal employment contract.

What, if any, Damages Are Owed to the Claimant by the Defendant? [50] The Employment Standards Act, [RSBC 1996] C. 113 (the “Act”) stipulates an employer’s liability to pay compensation to anemployee based upon his or her length of service. Section 63(1) of the Act indicates an employer becomes liable to pay compensationafter an employee has worked for three consecutive months. [51]

Section 63 of the Act does not mandate compensation after three weeks of employment. However, the common law hasdeveloped a scheme for the determination of damages for failure to give reasonable notice, even when the statutory period forcompensation has not been reached. [52] In Narduilli v. C-W Agencies Inc., 2012 BCSC 1686 (“Narduilli”), the Court discussed factors relevant to thedetermination of a reasonable period of notice: [415] The law on the assessment of reasonable notice is well established. In the seminal case of Bardal v. Globe & Mail Ltd. (1960), (ON SC), 24 D.L.R. (2d) 140 at 145 (Ont.

H.C.), McRuer C.J.H.C. set out the factors to be taken into account indetermining the appropriate notice period: 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. [416] In Ansari v.

British Columbia Hydro and Power Authority (1986), (BC SC), 2 B.C.L.R. (2d) 33 (S.C.), aff’d55 B.C.L.R. (2d) xxxiii (C.A.) at 43, McEachern C.J.S.C. (as he then was) provided a useful

summary of the applicable factors: At the end of the day the question really comes down to what is objectively reasonable in the variable circumstances of each case, but Irepeat that the most important factors are the responsibility of the employment function, age, length of service and the availability ofequivalent alternative employment, but not necessarily in that order. [Emphasis added.] [53] An employee has a duty to act reasonably and take reasonable steps to maintain his position in his industry, trade, or profession.This is described as a duty to mitigate losses upon being dismissed without proper notice: see Smith v.

Aker Kvaerner Canada Inc. andKvaerner Power Inc., 2005 BCSC 117 at paras. 31-32. Although the duty belongs to the Claimant, it is the Defendant who bears theonus to show the Claimant has failed to mitigate. [54] Having regard to the factors outlined in Bardal v. Globe & Mail Ltd cited above in Narduilli, I find as follows: 1. Character of the Employment: [55] Generally, the more specialized the employee’s job and the higher the status and responsibility, the longer the notice period:Burry v. Unitel Communications Inc. (1997), (BC CA), 46 B.C.L.R. (3d) 349 (C.

A) at para. 9; Cronk v. CanadianGeneral Insurance Co. (1995), (ON CA), 25 O.R. (3d) 505 (C.A.) Senior management or those with supervisory rolesare typically entitled to a longer period of notice than clerical workers on the basis there are fewer opportunities as one nears the apex ofthe job pyramid: Narduilli at paragraph 421. [56] The Complainant was hired to a position of substantial responsibility. He was to manage the Sales Department of what Iunderstand to be a profitable automotive sales business.

The Defendant’s own evidence was that successful Sales Managers can earnupwards of $200,000.00 per annum, although I did not take this to mean the Claimant could expect such earnings. I accept the jobrequired a person with substantial experience and skills in the auto sales industry. The Claimant was considered to be a person with anappropriate background for the position of Sales Manager. 2. The Length of Service:

[57] The Claimant worked for only three weeks. This is, by any measure, a short period of employment. 3. The Age of the Employee: [58] Courts have acknowledged age is a more relevant factor when the employee is old or nearing retirement, or when an employeehas spent a large part of their working career with a single employer: Narduilli at para. 424. The Claimant did not indicate his age. The evidence tendered during the trial suggested he was within 10 years or so of retirement. Hisage must be balanced against the short period of employment. 4.

The Availability of Similar Employment, Having Regard to the Age, Training and Qualifications of the Employee [59] The Claimant submitted, upon his termination, he was unable to secure similar employment in the small community ofWilliams Lake. I understood his evidence to be there were a finite number of car dealerships to which he might apply. The Claimanttestified he tried to secure employment in Williams Lake, but when he was unsuccessful, he took a part time position working over theChristmas season at the B.C.

Liquor Store in Williams Lake, at a salary of $17.90 per hour. [60] The Claimant testified in cross examination he would be able to obtain employment in the automotive sales industry inRichmond without any problem. However, he said he could not afford to move back to the Lower Mainland. [61] The Claimant provided no documentation or other evidence showing that he had applied at any dealerships in Williams Lake,the Cariboo region, Richmond, or elsewhere. He asserted in his evidence that he was a competent professional with more than 20 yearsof experience as a Sales Manager.

He said he was abundantly qualified to work for the Defendant. He was asked in cross examinationabout the suitability of work at the B.C. Liquor Store given his training. He stated in response that it was up to him to decide where hewould work. [62] Having regard to these factors, and considering the whole of the evidence, I am of the view a reasonable period of notice priorto termination of the Claimant’s employment was three weeks. I accept the Claimant was to earn $5000.00 per month in his position asSales Manager. On that basis, I award him $3750.00 compensation for wrongful dismissal.

Failure to Mitigate Loss [63] An employee dismissed without cause is required to take steps to reduce the losses resulting from that wrongful dismissal. Thisprinciple was summarized in James v. The Hollypark Organization Inc., 2016 BCSC 495 at paragraphs 55-57: [55] An employee who was wrongfully dismissed generally has a duty to minimize his or her loss by taking reasonable steps to securea comparable position of employment: Greene v. Chrysler Canada Ltd. (1982), (BC SC), 38 B.C.L.R. 347 at para. 26(S.C.), aff’d (1983), 7 C.C.E.L. 166 at 175 (B.C.C.A.).

It is the employer who bears the onus of proving that the employee failed toproperly mitigate his or her damages: Michaels v. Red Deer College, (SCC), [1976] 2 S.C.R. 324 at para. 13. Theemployer must show not only that the employee did not make a sufficient effort but that similar employment was available: Graham v.Galaxie Signs Ltd., 2013 BCCA 266 at paras. 48-49, leave to appeal ref’d [2013] S.C.C.A. No. 345. [56] While summarizing the law regarding the duty to mitigate in Nardulli v.

C-W Agencies Inc., 2012 BCSC 1686 , Loo J.stated: [449] … The employer can meet the onus by providing evidence of the availability of actual alternative employment or evidence that,had the employee taken reasonable steps to mitigate, he would have been likely to obtain comparable alternative employment: Carlysle-Smith v. Dennison Dodge Chrysler Ltd. (1997), (BC SC), 33 C.C.E.L. (2d) 280 (B.C.S.C.) at paras. 37-38. However,the employer is not required to show that a "specific" job was available, in the sense that a specific company had offered the employeeemployment: Stuart v.

Navigata Communications Ltd., 2007 BCSC 463 at para. 50. [57] The onus on the defendant to prove the plaintiff’s failure to mitigate is “by no means a light one”; it requires a party guilty ofunilaterally breaching a contract to demand positive action from the innocent party: Ostrow v. Abacus Management Corp. Mergers &Acquisitions, 2014 BCSC 938 at para. 99; Michaels, at 332. [64] The Defendant alleged the Claimant’s choice to pursue part-time employment at the B.C.

Liquor Store in Williams Lake for$17.90 per hour was evidence of his failure to mitigate his loss. [65] The Court has heard no evidence from the Defendant regarding the availability of managerial positions in the automotiveindustry in Williams Lake or elsewhere. [66] It is the Defendant who bears the onus of satisfying the court that the Claimant has failed to mitigate his losses. I question thepropriety of the Claimant’s decision to pursue part-time work in the service industry, rather than more remunerative positionscommensurate with his experience.

This is especially so, given the Claimant’s assertion that he could easily secure employment in theLower Mainland. However, I am ultimately not convinced that the Defendant has met his burden to prove the Claimant has failed tomitigate his loss. Is the Claimant Entitled to Moving Expenses?

Costs to Move to Williams Lake [67] The Defendant submits the Claimant intended to move to the Cariboo region before he accepted the position of Sales Manager.He said he would not have extended an offer of employment if the Claimant was not already relocating. [68] I accept the Claimant’s evidence that he moved to Williams Lake to work for the Defendant. I do not accept that his intention

was to relocate, at the time he did, for any other reason. [ 69 ] However, I also find that the terms of employment did not include a relocation allowance, although the Claimant’s unchallenged evidence was the Defendant provided him with a truck and trailer to assist with his move from Richmond to Williams Lake. These expenses were incurred in advance of the breach of contract by wrongful dismissal. I decline to award the Claimant his moving fees from Richmond to Williams Lake. Costs to Move to Richmond [ 70 ] The Claimant also seeks an award equal to his estimated costs of moving from Williams Lake to Richmond.

Pages 19a and 19b of his Book of Documents include an estimate for moving expenses, totaling $2160.00. The costs are particularized as follows: 1) Truck and trailer rental: $1110.00 2) Helpers to load in Williams Lake: $300.00 3) Gas to Richmond: $250.00 4) Helpers to unload in Richmond: $300.00 5) Moving supplies and boxes: $200.00 [ 71 ] Courts in British Columbia have taken different approaches to the issue of compensation for relocation expenses incurred following a wrongful dismissal. In Ste-Croix v.

Placer Dome, Inc. , 2000 BCSC 856 (“ Ste-Croix ”) , Lowry, J. determined such expenses were not a proper head of damage following wrongful dismissal. As stated in paragraph 35: For my part, I prefer the approach taken in Dutt . I have difficulty seeing why expenses of finding alternate employment and of relocating should, as a general proposition, be recoverable by a wrongly dismissed employee. The whole point of giving notice of the termination of employment is to afford the employee sufficient time to search for an alternate position and then relocate if necessary.

Costs may be incurred and, when they are, in the absence of agreement to the contrary, they will be borne by the employee. I do not see why it should be different when insufficient notice is given. At least in the normal course, the costs to be incurred will be the same. The employee must endeavour to find alternative employment to mitigate the loss of salary and benefits for which the employer is to be responsible, but the cost of doing so is a cost that would have been incurred even if the required notice had been given.

There does not appear to me to be any sound reason why it should in that instance be borne by the employer. [ 72 ] See also Zaitsoff v. Zellstoff Celgar Limited Partnership , 2009 BCSC 346 (“ Zaitsoff ”) , a case that bears some resemblance to that of the Claimant. In Zaitsoff , the plaintiff was also seeking damages for relocation costs that had not been incurred, on the basis of an estimate. [ 73 ] I agree with the reasoning in Ste-Croix and Zaitsoff . The issue here is wrongful dismissal.

Had the Defendant provided reasonable notice, and paid the Claimant properly, the Claimant would still bear the costs of relocating to Richmond. These are not costs that flow naturally from the Defendant’s failure to give reasonable notice. They are costs that would be been borne by the Claimant in any event. [ 74 ] I thus decline to award costs for relocation to Richmond.

SUMMARY [ 75 ] I find the Claimant was wrongfully dismissed by the Defendant. I fix the damages resulting from the wrongful dismissal at $3750.00. [ 76 ] The Claimant is also entitled to pre-judgment interest as fixed by the Court Order Interest Act , [ R.S.B.C. 1996] C. 79 . He is also entitled to $156.00 in filing fees, and $20.00 in service fees. [ 77 ] I order the Defendant to make payment of the damages, interest and filing and service fees to the Claimant forthwith. For greater clarity, the Defendant shall pay the judgment to the Claimant within 30 days of the date of the judgment. _________________________ The Honourable Judge P. Whyte Provincial Court of British Columbia