Collins v. Duncan Housing Society, 2023 BCPC 63

Citation: Collins v. Duncan Housing Society 2023 BCPC 63 Date: 20230221 File No: 5726 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ELVIS COLLINS CLAIMANT AND: DUNCAN HOUSING SOCIETY DEFENDANT ORAL DECISION OF THE HONOURABLE JUDGE K.V. SACCA Counsel for the Claimant: Mr. S. Marzinzk Counsel for the Defendant: Mr. J. Burgess Place of Hearing: Duncan, B.C. Date of Hearing: February 3, 21, 2023 Date of Judgment: February 21, 2023

[ 1 ] THE COURT: 12:13:21 Mr. Collins seeks compensation from his former employer, the Duncan Housing Society (DHS), for breach of contract resulting from the termination of his employment. Mr. Collins was terminated without cause and seeks payment in lieu of notice in excess of the three weeks' severance paid by DHS in accordance with the Employment Standards Act . [ 2 ] By way of background, Mr. Collins was 52 years of age at the time of trial. He has training in a variety of areas, has many employable skills, and has worked in a number of fields.

In his college years, he worked in the aviation field doing aviation mechanics. He subsequently joined the U.S. Marine Corps training in aviation, physical instruction, and infantry, among other jobs. He left the Marine Corps in 2000 and moved to Canada in 2002. [ 3 ] Mr. Collins was not qualified to work in the aviation industry as he lacked the Canadian equivalent certification. He obtained work as a heavy equipment operator in Alberta and worked for a variety of companies.

He obtained several certificates including in engineering, heavy equipment operation, residential construction, plumbing, and electrical. [ 4 ] Mr. Collins suffered a stroke in 2008 resulting in a loss of speech for six months. He underwent speech therapy and regained his speech. However, he still has many lasting effects including memory loss and ongoing heart issues. Additionally, he has battled prostrate cancer and may have had another more recent cancer diagnosis. [ 5 ] He started a business in approximately 2015 incorporated as Elvis is in the Building, doing repair renovation work. Mr.

Collins continued this business until approximately 2018 when he was hired by DHS as a maintenance worker. Mr. Collins testified that his self- employment income was not sufficient to support him and he sought employment with the intention of winding up his business. DHS offered him employment on a part-time basis working a minimum of 16 hours per week at a rate of $17.50 per hour. An offer of employment was made on January 18, 2018, and the offer letter was signed in acceptance on March 23, 2018. Mr.

Collins worked on weekends and evenings working around his self-employment schedule. [ 6 ] He was eventually offered full-time hours by DHS and a letter of employment dated April 6, 2018, was entered into evidence. Mr. Collins was offered a maximum of 40 hours per week at a rate of $24 per hour. He accepted and began April 9, 2018. A performance review was conducted in June of 2018. [ 7 ] On the performance review document, Mr. Collins' position is listed as "maintenance supervisor." The performance report is quite positive and Mr. Collins is referred to as a productive and valued member of DHS.

A job description was entered into evidence dated June 12, 2018. The description describes Mr. Collins as "maintenance person." There was a discrepancy between the description of his position as "maintenance supervisor" on the performance review document versus "maintenance person" on the job description. I did not put much weight on the difference between the descriptors of Mr.

Collins' job position, preferring to consider the roles that he undertook in his employment with DHS as opposed to the label assigned to the position. [ 8 ] In his role, he was primarily responsible for all repairs and maintenance within the building including all of the units housing approximately 122 tenants. This included carpentry, electrical, painting, mechanical, and plumbing, maintenance, and repairs. He liaised with third-party contractors. He worked with staff at DHS and supervised staff albeit temporary staff. His role within DHS was extensive and carried much responsibility. [ 9 ] Mr.

Collins was eventually terminated without cause on February 2, 2021. He was provided with three weeks' severance in accordance with the Employment Standards Act . He immediately attempted to obtain employment as the three weeks' severance was not sufficient to give him any sort of economic security. He obtained part-time work at Home Hardware through a contact days later at a rate of $15 per hour. He started on February 7 doing labour work in the outdoor lumber yard. He testified that he took the position to have some form of income while he searched for more work. [ 10 ] Unfortunately, Mr.

Collins suffered an injury at Home Hardware on February 20, 2021, when he slipped on black ice in the outdoor lumber yard and injured his knee. He sought immediate medical attention and was referred to physiotherapy. He testified his knee was quite swollen affecting his mobility. He returned to Home Hardware a week later, but could not withstand the physical labour. He made an application for both employment insurance benefits and medical employment insurance, but his applications were denied. [ 11 ] Mr. Collins testified that his knee injury prohibited him from physical labour.

He acknowledged and readily admitted that he had previously suffered a knee injury when he was employed in Alberta as a heavy equipment operator. There was no evidence that his knee represented a pre-existing condition and it was not a barrier to further physical labour work after healing from his injury suffered at Home Hardware. [ 12 ] Mr. Collins made efforts through the Employment Centre to search for work. His efforts included attending his local WorkBC office and making applications both online and in person searching newspaper job ads.

As this was in the midst of the COVID pandemic, he testified there were limited positions available and limited work that he was qualified for given his age, skills, recent employment history, and health issues. [ 13 ] He eventually sought a position at First Canada as of May 2, 2021, working 20 hours per week at $18.30 per hour. He found additional full-time work at Rockwell Management in July 2021 working 40 hours per week.

He worked both jobs simultaneously for the extra income. [ 14 ] From his termination on February 2, 2021, onwards, he was out of work for approximately three months inclusive of his injury at Home Hardware. He then began working on a part-time basis and, by the fifth month, had full-time employment. [ 15 ] I found Mr. Collins to be a credible and reliable witness. Despite his brain injury and the clear struggles he relayed the injury had upon his memory, I find he had a clear, albeit not perfect, grasp on his understanding of the relevant timelines and details necessary for

my determination in this matter. Mr. Collins was able to relay his role at DHS, his discussions upon termination, his efforts at seekingemployment after termination, and his extensive employment history including a chronology of the places where he had worked,timelines, and places where he lived. His evidence was both internally and externally consistent. [16] The legal questions I must answer are the following: was Mr. Collins provided with adequate severance in lieu of notice and, ifnot, what is the appropriate amount in all of the circumstances; and did Mr.

Collins make adequate efforts to mitigate his losses byseeking alternative employment? [17] Considering the facts set out in Bardal v Globe & Mail Ltd., (ON SC), wherein the Ontario Supreme Court setout a list of factors to be considered when determining how much common law notice an employee is entitled to when their employmentcomes to an end, the factors that I must consider include the character of the employment, the length of the employee's service, theemployee's age, and the availability of similar income. [18] The Bardal factors are not applicable where an enforceable employment contract sets out the notice required upon dismissal,where an employee is dismissed for just cause, or where the employment is for a fixed period.

Neither of those circumstances exist inthis case. The Bardal factors are a useful guide in wrongful dismissal cases. However, the court has the discretion to weigh certainfactors more heavily than others. Moreover, additional factors other than those set out in Bardal may be considered. [19] I find that Mr. Collins' position was of significant importance to the Society as the individual primarily responsible formaintaining the building. As stated previously, I put little weight on the title placed on his position as "supervisor" versus "worker," butrather considered the nature of the position. I considered Mr.

Collins' age as another relevant and significant factor. As an individualaged 52 and with health challenges, he faced greater barriers to obtaining employment than younger and healthier individuals. As notedby Orlando v. Vancouver Costal Health Authority, 2005 BCSC 926 : It is no secret that employees terminated at such an age -- And that was the age of 50. -- have a much greater difficulty finding employment than do those of a younger age. [20] I find that Mr. Collins made every effort to seek employment given his age, health, status, employment history, and skills.

Hehad not been employed in the aviation industry since college, being over 30 years previously. He had not been employed in the heavyequipment field since his move to British Columbia and had suffered a debilitating stroke in between. [21] Moreover, during the time, we were in the midst of the COVID pandemic with more uncertainty and fewer employmentpositions given the wave of lockdowns and virus variants prevalent at relevant times. Mr. Collins lives in a smaller urban centre withfewer related employment opportunities than what may have been found in larger urban centres.

I find it entirely reasonable in thecircumstances that Mr. Collins in this context would seek any sort of work that may be available to him, be it in maintenance, renovation,handy-work, or labour, and he did exactly that. [22] Considering all of the evidence, I find it appropriate that Mr. Collins be paid five weeks' severance for every year worked, being15 weeks, less the three weeks that he was already paid at the time of his termination. I, therefore, find DHS should pay Mr. Collins afurther 12 weeks' severance at $960 per week for total compensation of $11,520.

I will not deduct any income earned during the threeweeks' notice period required and paid under the Employment Standards Act following the Ontario Court of Appeal's analysis in Brake v.PJ-M2R Restaurant Inc., 2017 ONCA 402 .

I will consider, however, the earnings beyond the three-week statutory noticeperiod and deduct them from the common law notice period. [23] At this point, I am going to look to counsel to assist me in those calculations as the chart that was prepared has a gap in that itprovides me with figures for three months and four months, but I have determined the appropriate number to be 15 weeks which issomewhat in between. So perhaps you can help me with that. I know that, at 15 weeks, we are closer to four months, but not quitethere. How should I do that math? Any suggestions?

Otherwise, I am just going to pro rate it. [24] CNSL S MARZINZIK: If you would give me a minute just to situate myself, yes, let me review the chart here a second. [25] CNSL J. BURGESS: I'm just doing the same. [26] THE COURT: Thank you. [DISCUSSION RE CALCULATIONS OF TIME AND AMOUNTS] [27] THE COURT: All right. So then I am going to reduce my judgment.

So the amount that I will reduce that by, for the purposesof the income earned, will be $1,100 -- hang on, sorry, I am just writing this down so I have got it on my notes, $1,125.37, and then if Itake that from the $11,520, that is -- renders judgment at a total of $10,394.62. [28] CNSL J. BURGESS: $10,396.42? [29] THE COURT: You just got that a bit inverted, it is -- [30] CNSL J. BURGESS: Oh, sorry. [31] THE COURT: -- $10,394 -- [32] CNSL J. BURGESS: Yes. [33] THE COURT: -- .62.

[ 34 ] CNSL J. BURGESS: Sorry, thank you. [ 35 ] THE COURT: No, that is okay, and then I assume that has a -- pre-judgment interest would be applicable to that and I will not do that calculation. I think that gets applied just -- that was -- [ 36 ] CNSL J. BURGESS: We can throw that -- [ 37 ] THE COURT: Yes. [ 38 ] CNSL J. BURGESS: -- in a per-diem calculator, that's fine. [ 39 ] THE COURT: Yes, that gets applied after. So the total judgment is $10,394.62. Okay? [ 40 ] CNSL S.

MARZINZIK: Yes, thank you, Your Honour. [ 41 ] THE COURT: All right, thank you very much for all of your helpful submissions and all of the case law that you referred me to it was very helpful in trying to come up with a fair result and I appreciate that and, again, I only wish that, at the settlement conference stage, there could not have been some better discussions around appropriate notice and perhaps avoided a lot of this because I really do not think you were that far off from one another, to be frank with you. [ 42 ] CNSL S.

MARZINZIK: Well, I know that both my friend and I were not counsel at -- [ 43 ] THE COURT: Mm-hmm. [ 44 ] CNSL S. MARZINZIK: -- at that time, and I think we can all agree that that's something to keep in mind for our cases in the future. [ 45 ] THE COURT: Right. Okay, thank you very much. [ 46 ] CNSL J. BURGESS: It is appreciated, Your Honour. [ 47 ] THE COURT: Yes, thank you. (REASONS FOR JUDGMENT CONCLUDED)