Shehata v. Ashton College Ltd., 2020 BCPC 37

Citation: Shehata v. Ashton College Ltd. 2020 BCPC 37 Date: 20200304 File No: 1964106 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: AMR SHEHATA CLAIMANT AND: ASHTON COLLEGE LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Claimant: J. Wu Appearing for the Defendant: C. Fortes Place of Hearing: Vancouver , B.C. Date of Hearing: February 14, 2020

Date of Judgment: March 4, 2020 A Corrigendum was released by the Court on March 6, 2020. The corrections have been made to the text and the Corrigendum is appended to this document. BACKGROUND [ 1 ] This is a wrongful dismissal claim. The claimant, Amr Shehata, was hired by the Defendant, Ashton College Ltd., as a Senior Educational Administrator on November 19, 2018, earning $55,000 per annum. Ashton College terminated the employment without cause on April 4, 2019. The employer paid Mr. Shehata one week of wages as severance, which I calculate at $1,057.69. [ 2 ] Mr.

Shehata was previously employed by Ashton College as an instructor from November 19, 2018 to April 4, 2019. This employment was on a contract basis. [ 3 ] Vitoria Correia is the director of the Vancouver Campus of Ashton College. She first knew Mr. Shehata when he was an instructor. Ms. Correia says that in October 2018 she interviewed Mr. Shehata in relation to another teaching position. Given his management background, she asked him about the position of Senior Educational Administrator with the College. Ms. Correia explained the position to Mr. Shehata, which commenced with a probationary period. Mr.

Shehata asked what happens during the probationary period. Ms. Correia said that if Mr. Shehata was not a good fit with the position, he would be terminated. Ms. Correia said Mr. Shehata then asked what happens after the probationary period ended, and she responded that “we would follow Employment Standards.” [ 4 ] Ms. Correia says they had a second interview toward the end of October 2018. Mr. Shehata only recalls one interview but nothing turns on this. [ 5 ] Mr. Shehata did not provide any specific details of his recollection of the meeting with Ms.

Correia. [ 6 ] What followed next were a series of emails. [ 7 ] On October 30, 2018, Zainab Bukhari, the Human Resources coordinator for Ashton College, emailed Mr. Shehata with an offer of employment as a Senior Educational Administrator. [ 8 ] On November 1, 2018, Ms. Bukhari sent Mr. Shehata an Adobe document with a job offer for the Senior Educational Administrator position. Ms. Bukhari told Mr. Shebata that he could accept the offer of employment by signing the document electronically. [ 9 ] Mr. Shehata responded that same day to ask to have a few points clarified.

Among his questions, he asked in his email: “What is the notice period for both termination or resignation?” [ 10 ] Ms. Bukhari responded by email stating: There is no fixed notice for resignation or termination, however, we normally go by the typical 2 weeks of notice for resignation, and for termination, we have to calculate how many weeks of notice is an employee entitled to keeping in mind the BC Employment Standards Act. [ 11 ] Ms. Bukhari revised the offer of employment to set out Mr. Shehata’s correct legal name. All other terms were the same. The offer was sent to Mr.

Shehata and he electronically signed it and returned it to Ms. Bukhari. In turn, both Ms. Correia and Ms. Bukhari signed the document on behalf of Ashton College. [ 12 ] The Offer of Employment makes no reference to the period of notice to be given upon termination. The letter does include the following statement: Your employment is also subject to our existing conditions of employment which are more fully set out in our employee handbook.

In the case that the Ashton College Employee handbook does not provide all the terms of your employment the terms in the BC Employment Standards Act will apply. [ 13 ] The Offer of Employment also attached a Non-Competition Agreement, which only applied if the employee terminates employment or if the employer terminates employment for cause. [ 14 ] By way of an email dated November 2, 2018, Ms. Bukhari thanked Mr. Shehata for signing the offer of employment. The email also attached for Mr. Shehata a copy of the Employee Handbook, which Mr. Shehata confirms receiving. [ 15 ]

Section 7 of the Employee Handbook states as follows: Ashton College reserves the right to terminate any employee in accordance with the Employment Standards Act of BC. If a termination occurs without Just Cause, working notice, severance in lieu of notice, or a combination of both, will be provided as follows: • After three consecutive months of employment: one week’s pay; • After 12 consecutive months of employment: two weeks’ pay; • After three consecutive years: three weeks’ pay, plus one week’s pay for each additional year of employment to a maximum of eight weeks.

[ 16 ] This provision sets out the minimum notice requirements found at ss. 63(1) and (2) of the Employment Standards Act [RSBC 1996] c. 113 . [ 17 ] Vitoria Correia made the decision to terminate Mr. Shehata’s employment. She and the school’s supervisor of student services met with Mr. Shehata on April 4, 2019. Ms. Correia presented Mr. Shehata with a letter of termination. The letter stated: This letter serves to provide you with notice that effective immediately, you are being terminated from your position of Senior Educational Administrator. You will receive one (1) week of termination pay in lieu of notice.

I would like to thank you for al of your contributions to Ashton College and wish you all the best in your future endeavors. [ 18 ] Ms. Correia recalled that Mr. Shehata asked why he was being paid for one week and not two weeks. [ 19 ] Mr. Shehata only recalls asking “why one week?” [ 20 ] At the time of termination on April 4, 2019, Mr. Shehata was employed for approximately 4 ½ months. He was 38 years old then. [ 21 ] Mr. Shehata said he sought legal advice then. He also said he had some family issues to deal with and so he delayed seeking new employment until April 23, 2019. [ 22 ] Mr.

Shehata sent a number of emailed job applications following the termination. Details of his job search efforts were as follows: April 23, 2019 – Mr. Shehata sent an email to VP College for a part time teaching position. Mr. Shehata stated he was seeking a part- time position so that he could dedicate more time to his professional practice as a licenced immigration consultant. April 24, 2019 – Mr. Shehata received an email from the job search website “Indeed” advising that Vancouver Premier College of Business and Management had viewed Mr. Shehata’s application.

This appears to be a follow-up to the April 23, 2019 email application. April 25, 2019 – Mr. Shehata sent an email to the University of the Fraser Valley for a marketing instructor position. April 26, 2019 – Mr. Shehata received an email confirming that he submitted an application to Hanson Canada for a position as business instructor. April 26, 2019 – Mr. Shehata received an email confirming that he submitted an application to JJM Construction Ltd. for a position as a corporate trainer. April 26, 2019 – Mr.

Shehata received an email confirming that he submitted an application to Procom for a position as a Coaching and Learning Instructor 3 May 8, 2019 – Mr. Shehata submitted an application to Vancouver Premier College of Business and Management to become a Business and Management Instructor. May 15, 2019 – Mr. Shehata submitted an application to University Canada West to become a faculty member. June 26, 2019 – Mr. Shehata submitted an application to Yorkville University to become a member of the college. August 22, 2019 – Mr. Shehata applied to Greystone College for a business instructor position. [ 23 ] Mr.

Shehata said he went on a trip to Egypt for three weeks from May to June 20, 2019. He did not seek work during this time. [ 24 ] Mr. Shehata also did not apply for work in July 2019 because he thought most schools would be on holidays. [ 25 ] Mr. Shehata understood that the non-competition clause that was part of the Offer of Employment prevented him from applying to any schools in the Vancouver area. He is mistaken though as the wording of the clause only applied if Mr. Shehata resigned or the school terminated him for cause. [ 26 ] Mr.

Shehata said he obtained employment at ILAC College in September 2019 as a part-time instructor. He said he was paid $50 an hour working four hours a day for two days a week. The job lasted nine weeks. By my calculation, he earned $3,600. [ 27 ] Mr. Shehata also testified that during the six months after the Ashton College job ended, he worked part-time in his immigration consultant business. Mr. Shehata was unable to say what he earned during this time though. THE POSITION OF THE PARTIES [ 28 ] Mr. Shehata claims severance based on six months of wages, less the one week of severance paid. Mr.

Shehata says that he has not waived the right to common law damages. [ 29 ] Ashton College says that Mr. Shehata did waive the right to claim common law damages and that Mr. Shehata was aware that any claim for compensation for dismissal was limited to that payable under the Employment Standards Act . [ 30 ] Ashton College submits that Mr. Shehata received a copy of the Employee Handbook prior to the start of his work and so he had an opportunity to read it and dispute any terms, such as the termination provision. [ 31 ] If Mr.

Shehata is entitled to common law damages, Ashton College says that any award should be reduced by the income

earned while teaching at ILAC College and in the immigration consultant business. [32] In addition, Ashton College says that Mr. Shehata failed to mitigate his losses. Ashton College argues that Mr. Shehata wasapplying for teaching positions when his limited education and work background as a teacher meant it was unreasonable to seek ateaching job. ANALYSIS [33] I will address the following issues: 1. What were the terms of employment? Specifically, did Mr. Shehata waive his right to common law damages upon terminationwithout cause? 2.

If the right to common law damages was not waived, then what is the appropriate amount of compensation? 3. Should the amount of compensation be reduced by: a. The one week of severance paid to Mr. Shehata. b. The earnings from ILAC College in the amount of $3,600 (Sept 2019 for 9 weeks). c. The earnings from Mr. Shehata’s immigration business. d. Any failure to mitigate. What were the terms of employment? Specifically, did Mr. Shehata waive his right to common law damages upon terminationwithout cause? [34] The terms of employment are those in place at the time that Mr.

Shehata was hired. [35] Prior to the hiring in October 2018, Vitoria Correia told Mr. Shehata that if he was terminated after the probation period wasover, Ashton College “would follow Employment Standards.” [36] Then in an email sent November 1, 2018 to Mr. Shehata, Ms.

Bukhari said: There is no fixed notice for resignation or termination, however, we normally go by the typical 2 weeks of notice for resignation, and fortermination, we have to calculate how many weeks of notice is an employee entitled to keeping in mind the BC Employment StandardsAct. [37] The Employee Handbook was not provided until after the offer of employment was accepted. [38] Ashton College submits that Mr. Shehata could have reviewed the Handbook and if there was any concern about thetermination provision in the Employee Handbook, Mr.

Shehata could have raised this issue then and make a decision not to continuewith the employment. However, the terms of employment would then have applied to put into effect the non-competition clause. Thecontract of employment was already in place before Mr. Shehata was provided with the Employee Handbook and the terms set out in theHandbook did not form any part of the contract of employment. [39] The discussions about the Employment Standards Act prior to the formation of the employment contract did not refer to Mr.Shehata waiving his common law right of damages for termination of employment.

Any waiver of such a right must be clearly discussedand agreed to if it is to bind Mr. Shehata: see Machtinger v HOJ Industries Ltd., and Ly v. British Columbia (InteriorHealth Authority), 2017 BCSC 42 at paragraph 40. [40] I am satisfied that the contract of employment did not include a waiver of the common law right of damages. If the right to common law damages was not waived, then what is the appropriate amount of compensation? [41] In the decision Saalfeld v. Absolute Software Corporation, 2009 BCCA 18, the plaintiff was employed as a Federal TerritoryManager for a period of nine months.

The plaintiff conducted a reasonable job search and found employment after ten months.

The trialjudge set reasonable notice at nine months. [42] At paragraph 15, Madame Justice Huddart of the Court of Appeal stated: Absent inducement, evidence of a specialized or otherwise difficult employment market, bad faith conduct or some other reason forextending the notice period, the B.C. precedents suggest a range of two to three months for a nine-month employee in the shoes of therespondent when adjusted for age, length of service and job responsibility. [43] The Court of Appeal went on to say that the trial judge’s decision was not unreasonable, noting that the trial judge emphasizedthe time it took for new employment to be found: see paragraph 16.

The Court went on the conclude that the trial judge’s decision was atthe high end of the range but was not unreasonable. [44] In Greenlees v Starline Windows Ltd., 2018 BCSC 1457, the 43 year old plaintiff was hired as a sales professional. He wasterminated from his employment after six months. The parties agreed that taking into account factors of age, responsibility and length ofservice, notice of two to three months was appropriate: see paragraph 42. The plaintiff argued that other factors came into play thatcalled for a longer notice period.

The court agreed that there was some level of inducement and evidence of a limited availability ofalternative employment: paragraph 67. The court set the notice period at six months.

[45] In Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42, the plaintiff was hired as Manager of Quality and PatientSafety and Client Experience. He was 38 years old and was terminated after two months. Mr. Ly found alternative employment withinthree months in another Province. Damages were set at three months. [46] In Burns v. Lyons, 2015 BCSC 605, the 33-year-old plaintiff was employed for two months as a restaurant manager. The courtfixed reasonable notice at two months and in doing so, noted that the plaintiff was induced to leave her former position: see paragraph 60 [47] In Avelin v.

Aya Lasers Inc., 2018 BCSC 2313, the plaintiff was a 47-year-old salesperson who was employed for sevenmonths. The court fixed reasonable notice at four months, noting that the plaintiff was older and was only able to find inadequatereplacement work after four months and better alternative work after 7.5 months. [48] The decision Pavac Industries Inc. v. Marshall, 2018 BCSC 830, was an appeal of a Small Claims Court decision, where theclaimant sued for wrongful dismissal after six weeks of employment. The Provincial Court judge awarded damages equivalent to eightweeks of employment.

The Supreme Court held on appeal that although an award of eight weeks was unusual given that the period ofemployment was only six weeks, the decision was not a reversible error: see paragraph 22. [49] In the case before me, Mr. Shehata did not seek alternative management work in the education field. His job search effortsfocused on teaching positions for which he had limited experience. During this time period, Mr. Shehata was also focused on developinghis immigration consultant business. Unlike the situation in Saalfeld, Greenlees or Avelin, I cannot rely on Mr.

Shehata’s inability to findalternative employment in the months after his employment ended as an indicator that he was facing a difficult job market to findequivalent employment. Mr. Shehata simply did not seek similar employment after his termination. [50] There was also no inducement as Mr. Shehata was unemployed when he was hired by Ashton College. [51] I see no basis to move beyond the two to three month range referred to in Saalfeld decision. Given the short duration ofemployment, I set reasonable notice at two months. Should the amount of compensation be reduced by: a. The one week of severance paid to Mr.

Shehata. b. earnings from ILAC College in the amount of $3,600 (Sept 2019 for 9 weeks). c. The earnings from Mr. Shehata’s immigration business. d. Any failure to mitigate. [52] The claimant concedes that the one week of severance already received should be deducted from the damages award. [53] Mr. Shehata earned income working for ILAC College in September 2019. This is beyond the two month period of reasonablenotice and so the income earned from this employment is not a proper deduction from the damages award. [54] Mr.

Shehata admits to earning income from his immigration business but there is no evidence of the amount earned or when heearned that income. I will set an arbitrary amount of $1,000 as the amount to be deducted for income earned during the two monthsfollowing termination from employment. [55] Ashton College submits that there should be a further deduction due to a failure to mitigate. The onus of proving any failure totake reasonable steps to mitigate the loss rests with Ashton College: see Carlysle-Smith v. Dennison Dodge Chrysler Ltd., (BC SC) at paragraph 31.

Ashton College has not provided any evidence in this regard. I have also already taken into account the jobsearch efforts made by Mr. Shehata by not moving beyond the notice period referred to in Saalfeld. DAMAGES [56] The damages are calculated as follows: • Monthly salary $4,583.33 ($55,000/12) • Amount payable for 2 months = $9,166.66 • Deduct one week of wages ($1,057.69) • Deduct $1,000 as income earned from the immigration business • Amount Payable $7,108.97 [57] I order that Ashton College Ltd.

Pay to Amr Shehata the sum of $7,108.97 plus the court filing fee of $156 and service fee of$80. [58] A party may wish to make submissions regarding payment of expenses, fees or a penalty pursuant to the Small Claims CourtRules.

If that is the case, then the applicant party must file written submissions with the Registry addressed to my attention within three(3) weeks after the date these Reasons for Judgement are released, with a copy of the filed submissions sent forthwith to the other party. [59] Within two (2) weeks after receiving the submissions, the responding party may file a reply with the Registry addressed to myattention, with a copy delivered to the other party. If a reply is not received within this time period, then I will assume that the respondingparty will not be making a reply.

I will in due course issue a further written decision to the parties.

_____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia CORRIGENDUM - Released March 6, 2020 In the Reasons for Judgment dated March 4, 2020, the following changes have been made: [1] Paragraph 54 should read: [54] Mr. Shehata admits to earning income from his immigration business but there is no evidence of the amount earned or when he earned that income. I will set an arbitrary amount of $1,000 as the amount to be deducted for income earned during the two months following termination from employment. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia