Name Michael MacKenzie Claimant Name AMEC Environment & Infrastructure Limited Defendant Editorial Notice: Addresses v. phone numbers have been removed from this electronic version of the judgment., 2014 NSSM 34

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: MacKenzie v. AMEC Environment & Infrastructure Ltd., 2014 NSSM 34 Claim No: SCCH 422265 BETWEEN: Name Michael MacKenzie Claimant Name AMEC Environment & Infrastructure Limited Defendant Editorial Notice: Addresses and phone numbers have been removed from this electronic version of the judgment. Matthew Edmonds, Articled Clerk for the Claimant, Michael MacKenzie; Philip Sullivan, Operations Manager, for the Defendant, AMEC Environment & Infrastructure Limited; Date of Hearing: February 27, 2014 and March 11, 2014.

DECISION This is a claim for wrongful dismissal brought by the Claimant, Michael MacKenzie, against the Defendant, AMEC Environment & Infrastructure Limited (“AMEC”). The parties have agreed that Mr. MacKenzie was terminated without cause. The Defendant cited a lack of available work as the reason for dismissal. At the conclusion of his employment, Mr. MacKenzie was offered either two or four weeks pay by the Defendant, depending upon whose evidence is accepted. He declined this offer. He seeks compensation for wages and overtime pay lost as a result of the termination of employment.

He submits that he is entitled to an amount in excess of the limit prescribed by the Small Claims Court Act , but has reduced his claim to bring it within this Court’s jurisdiction. The Defendant submits that the Claimant is not entitled to any salary notwithstanding his termination without cause as he was already offered what it considers an appropriate sum upon his departure, which AMEC intends to pay. Background AMEC was one of several companies awarded a contract by the government of Newfoundland and Labrador to lay asphalt on the 500 series highways in Labrador.

Like most road construction, the work was seasonal, meaning Mr. MacKenzie was hired to begin work in the spring and would work until late fall before the harsh winter weather in Labrador commenced. AMEC’s head office was based in Dartmouth and Mr. MacKenzie was flown from Halifax to Happy Valley-Goose Bay where he was transported to the job site. While the work was performed outside of Nova Scotia, I find the contract of employment was formed in Nova Scotia. Both parties agreed that Nova Scotia is the appropriate jurisdiction.

Thus, I find the matter to be within the jurisdiction of the Small Claims Court of Nova Scotia.

Issue The issue in this matter is straightforward, namely, what is an appropriate level of compensation for the Claimant as a result of his termination? The Evidence Michael MacKenzie is 63 years of age and has worked in the construction industry for 30-40 years as a supervisor, estimator and surveyor. The Claimant was employed with the Defendant, since September, 2009 until his termination on July 6, 2013. His job title was a materials technician. His duties included the testing of soil and rocks at the job site to determine their suitability for asphalt.

He described an incident which took place on June 4, 2013, between himself and an employee of Humber Valley Paving. Essentially, the Humber Valley Paving employee was operating a loader and allegedly chased and/or dumped a load of material close to Mr. MacKenzie. Mr. MacKenzie believes the incident was a deliberate attempt to injure him arising from a previous disagreement. The allegations concerning the incident clearly resulted in adverse effects on the working relationship between the Claimant and his employer. It is important to note that I am unable to make any factual determination on what took place.

Other than Mr. MacKenzie’s viva voce evidence, there was no evidence tendered which can corroborate his version of events. He was the only witness called that was on-site that evening. This is not to suggest that I do not believe him, and it does not mean that I fully believe him either. It is simply the case that the evidence is not sufficient to prove it occurred on a balance of probabilities. Further, as I indicated to both parties during the hearing, if the specifics of the incident are not the reason for Mr.

MacKenzie’s dismissal, then the details of the incident are not germane to the issue at hand, namely the amount of compensation to which Mr. MacKenzie is entitled as the result of his dismissal. Both sides tendered a significant amount of documentary evidence. While in the interests of brevity, I have not referred to all of them, each has been read and considered in my decision. The documents show that the Defendant appears to have accepted at least some of Mr. MacKenzie’s version of the events, although the Defendant’s position on the matter was not communicated to him.

I shall make no further findings or comments with respect to the facts of the incident, other than a review of the Wallace decision further along in these reasons. Following the alleged incident, Mr. MacKenzie was placed on a separate job site for a short time. He was sent home for a break as well. During his stay in Nova Scotia, he phoned several RCMP detachments but he was ultimately referred to the detachment in Happy Valley-Goose Bay. He did not end up contacting them. The reason he gave on the witness stand was a lack of privacy as phone communication was shared at the job site.

He did not indicate why he did not contact that detachment from his home in Nova Scotia. Eventually, he was laid off and advised that it was due to lack of work. He testified that he was offered two weeks pay which he has not yet received. Mr. MacKenzie provided the following evidence of his earnings while employed with the Defendant: End First Pay Period End Final Pay Period Total Hours Total Earnings May 28, 2010 October 18, 2010 1583 $35,223.24 May 13, 2011 November 25, 2011 1915 $40,180.35 May 25, 2012 November 9, 2012 1674 $38,595.10 May 24, 2013 July 19, 2013 418 $15,099.88

No evidence was provided as to the amount of time he worked in 2009 or the amount of money he earned. However, the amounts for 2010-2012 varied significantly in the total amount of insurable hours, from as little as 1583 in 2010 to 1915 in 2011. He testified that he earned overtime for any amounts over the weekly maximum of 48 hours, resulting in an hourly rate higher than the amount agreed to. He testified that it was difficult to predict when the work would cease each season due to the unpredictability of the climate in Labrador. Philip Sullivan testified on behalf of the Defendant. Mr.

Sullivan is the operations manager for Nova Scotia. He is a professional engineer. He described in detail the aftermath of the incident concerning the Humber Valley employee and Mr. MacKenzie's reaction thereto. He tendered into evidence a considerable volume of correspondence, including e-mails and hard copies of letters to Mr. MacKenzie. It is clear that they had difficulty with some of Mr. MacKenzie's actions following the episode. Specifically, Mr. MacKenzie had a polygraph test taken when he was home in Nova Scotia. The use of a polygraph was not suggested by his employer.

However, he showed the results to the management of Humber Valley. This action understandably increased the discomfort and friction between the parties. As I also noted at the hearing, both parties could have handled the situation better. With respect to the Claimant’s wages, Mr. Sullivan testified that a normal work week for Mr. MacKenzie was approximately 40 hours. He had intended to offer him 2 to 4 weeks pay in exchange for a release of liability. He believes that Mr. MacKenzie's termination was not a firing, but rather a termination for lack of work.

He submits that the court should consider the total time that he was employed as approximately two years rather than five years as submitted by Mr. Edmonds. Furthermore, he relies on the provisions of the Labour Standards Code of Nova Scotia. He does not cite a specific

section to limit the amount of pay to two weeks. The Law As indicated at the outset of this decision, it is not necessary for me to review the provisions respecting the conflict of laws. The job site for the position was in Labrador, the Defendant’s office is located in Oakville, Ontario, yet their regional office and the place of hire was at AMEC’s office in Dartmouth, Nova Scotia. Potentially, Mr. MacKenzie could have been assigned to other job sites in any other province. The parties submit that the contract was created and is subject to the jurisdiction of the courts in Nova Scotia.

I agree with that submission. It is a widely accepted legal principle that termination of an employee requires adequate notice or payment in lieu. If an employer fails to provide one or the other, then it will be found liable for wrongful dismissal of the employee. In Nova Scotia, an employee who feels he or she has been wrongfully dismissed has the option of seeking redress under either the Labour Standards Code or the common law. Labour Standards Code The Labour Standards Code , R.S.N.S. 1989, c. 246, as am., provides a legislatively prescribed means of addressing employment issues.

It is considered a minimum standard and has been accorded curial deference when a party has elected to pursue a remedy both in common law and under the Code ( Fredericks v. 2753014 Canada Inc. , 2008 NSSC 377 ). However, unlike some provinces, the Code does not oust the jurisdiction of the Court. Rather, it gives an affected party a choice of forum. In looking at the provisions of the Code, an employee who has been employed for a period of less than five years is entitled to two weeks’ notice or payment in lieu (s.72(1)(b)).

Section 78 provides that if the employee does not receive payment, he may make a complaint to the Director of Labour Standards under s. 21 of the Code.

Section 21 provides authority for the conduct of a hearing.

Section 6 of the Labour Standards Code provides the following: “6. This Act applies notwithstanding any other law or any custom, contract or arrangement, whether made before, on or after the first day of February, 1973, but nothing in this Act affects the rights or benefits of an employee under any law , custom, contract or arrangement that are more favourable to him than his rights or benefits under this Act .” (emphasis mine) This provision is significant as it confers on every employee the more favourable applicable right or benefit provided by law - an entitlement which cannot be modified by contract.

The impact of s. 6 has been considered by Justice Duncan in the Fredericks case referenced above. Specifically, Justice Duncan reviewed the doctrine of curial deference and stated the following regarding the awarding of damages for wrongful dismissal:

“Does the Code provide effective redress for wrongful dismissal? [47] In Deagle v Shean Co-Operative Limited , 1996 NSCA 217 , [1996] N.S.J. 504 (NSCA), the employer argued that anexisting order of Labour Standards Tribunal estopped their former employee from advancing a claim for damages arising from wrongfuldismissal.

Writing on behalf of the court, Flynn, J.A. said: 17 In dealing with a complaint under s. 72 of the Act, the Labour Standards Tribunal makes no inquiry, as would a court in a wrongfuldismissal action, as to what notice requirements would be reasonable given the circumstances of both the respondent and the appellant.

Itmakes no inquiry concerning other benefits which the employee has lost as a result of being dismissed, and it makes no inquiry as toother damages such as punitive damages, damages for mental distress, etc 18 Further, the Act clearly contemplates additional benefits being sought by the respondent in another forum. 19

Section 6 of the Act provides as follows: 6.

This Act applies notwithstanding any other law or any custom, contract or arrangement, whether made before, on or after the first dayof February, 1973, but nothing in this Act affects the rights or benefits of an employee under any law, custom, contract or arrangementthat are more favourable to him than his rights or benefits under this Act.” 20 The purpose of s. 72 of the Code is to require an employer to meet certain minimum standards when dismissing an employee who hasnot "been guilty of wilful misconduct or disobedience or neglect of duty that has not been condoned by the employer".

These areminimum requirements, and vary with the length of service of the employee. Most employers voluntarily comply with the provisions ofs. 72. In such cases, and because of s. 6 of the Code, the employer could not be heard to say that the employee has no further claim fordamages for wrongful dismissal in the appropriate case. There is no reason why there should be any difference where the employer isforced to comply following a complaint made against him by the employee.

If there was such a difference, employers would beencouraged not to comply with s. 72 of the Code if they thought a hearing before the Labour Standards Tribunal would fully resolve thedismissed employee's claim. That is not the purpose of s. 72 of the Code. [48] The policy of judicial deference to specialized tribunals in the field of labour relations was already enunciated by the time of Deagle- the cases of St. Anne Nackawic Pulp & Paper v. Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 S.C.R.704 and Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929, perhaps being the most notable to that time.

It must betaken that the court in Deagle was alert to the policy.... [49] Subsequent judicial statements such as those in Vaughan and Adams have not changed the underlying principle as Flynn J.A. saw it.To restate it in the current context, a claim for wrongful dismissal does not attract effective redress under the Labour Standards Code. Itprovides a statutory minimum.

Section 6 of the Code preserves to the plaintiff the more favourable benefit or rights in the common lawthat a court may find, and which are not otherwise available.” (underscoring mine) Justice Duncan went on to award a 46-year-old employee of five years employment (less three days) five months pay, notwithstandingthe ruling of the Labour Standards Tribunal. In his brief, Mr. Edmonds cited the case of Kaiser v. Dural, a division of Multiband Inc., 2001 NSSC 131, aff’d by 2002 NSCA 69.

Inthe trial decision, the Supreme Court applied the doctrine of contra proferentum against the employer whose employment contractcontained wording seeking to limit the amount of notice to “the minimum notice required by law” which would would have been oneweek according to the Code. In the Court of Appeal, Cromwell J.A. (as he then was), stated the following: “Having regard to

section 6 of the Code, we doubt this argument is sound even if the hiring letter were to be interpreted as incorporatingthe Code by reference.” As a result of the language of

section 6, the comments of Justice Cromwell in Kaiser and the decision of Justice Duncan in Fredericks,with all due respect, I find the law is more settled and extends further to the benefit of a terminated employee than what was submittedby the Claimant in this portion of his brief. In my opinion, the law supports the application to the facts of this case as I have set it outbelow. With the exception of this finding, the remainder of Mr. Edmond’s brief is an accurate and well researched

summary of the law asit relates to wrongful dismissal in Nova Scotia and I am grateful for its submission. In the instant case, the Employment Agreement between the parties states the following: “If your employment is terminated for any reason other than for just cause, your entitlement will be limited to the notice, compensationin lieu of notice and/or severance pay as provided under applicable provincial employment standards legislation. So long as the company

complies with such employment standards legislation, it will have no further obligation to you.” For the reasons cited in Fredericks above, I find that the employment agreement does not oust the jurisdiction of the courts to considerredress under common law. Specifically, the Code has been interpreted by the courts to provide an aggrieved employee with the authorityto seek redress in the form of compensation for lost wages in addition to any findings made by the Labour Board on application. Mr.MacKenzie did not take any action before the Board and he did not need to do so.

The appropriate law is the common law relating towrongful dismissal. The appropriate forum is the Small Claims Court. Common Law Standard As previously noted, when terminating an employee, an employer is required to give the employee reasonable notice or payment in lieu.The notice requirement is intended to bridge the period of time between the discharge of the employee, while giving one an opportunityto re-establish oneself elsewhere. In his brief, Mr. Edmonds cites the case of Bardal v.

Globe & Mail Ltd., (ON SC),[1960] O.J 149 (HC), where Chief Justice McRuer stated the following: “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.” These criteria known as the “Bardal factors”, have been applied in many cases since the initial pronouncement of that judgment in 1960.I hasten to add that the law today is simply known as employment law, rather than the archaic term, “master-servant”. Mr.

Edmond’s brief provides a significant review of the case law pertaining to each of these criteria. I shall consider each standard inlight of the evidence presented. Character of the Employment Mr. Edmonds has cited several cases for the proposition that employees with greater degrees of responsibility in their position should beafforded longer notice periods. The question to be determined is whether Mr. MacKenzie’s responsibilities were such that they are moremanagerial or specialized in nature, rather than general labour. Mr. MacKenzie was described as a materials technician.

His role was to perform a review of the suitability of the job site for theapplication and placement of asphalt. He did not have a crew reporting to him, he did not have a budget or responsibility for specificequipment. He was charged with the duties of training new employees on his role when they came on the job site. These includedlabourers and engineering students on-site. In short, I find Mr. MacKenzie was indeed a senior, experienced employee and, as such, wasgiven additional responsibilities to that of a labourer. Indeed, the position required certain specific knowledge.

It does not, however,carry the level of responsibilities afforded to some of the employees in these cases. Length of Service The case law is clear that the longer one is employed, the greater the amount of notice or payment one should be entitled to receive.Furthermore, in many cases, seasonal employment is considered the same as continuous employment. The difference in those instancesis the amount of money that is paid. Mr. Edmonds cites numerous cases dealing with time periods for seasonal workers. There is little consistency in the timeline used inthese cases. Mr.

MacKenzie was employed with AMEC for two months in 2009, three seasons of varied length in 2010, 2011 and 2012. Each season

ran from May to October or November for an average of 22 to 26 weeks. He worked there for less than four seasons in total. Age of the Employee The courts have long recognized the difficulty for an employee seeking to find similar work at an advanced age. He cites the case ofPiresferreira v. Ayotte, (ON SC), [2008 O.J. 5187 (SCJ): “Her age and the corresponding difficulty that creates for her seeking other employment, suggests a longer notice. I consider this a verysignificant factor in determining the length of notice appropriate in this case....

On balance, I find that Piresferreira-even if medically able to seek alternate employment-would have had difficulty obtaining similaremployment.” In that case, the plaintiff was 61 years of age. At the time of his dismissal, Mr. MacKenzie was 62 years of age. He has worked inconstruction his entire career. Availability of Similar Employment This factor addresses the prospects of finding similar employment in related industries. The cases cited by Mr. Edmonds are authority forthe requirement of a terminated employee to mitigate one's losses by seeking similar employment.

A materials technician in a publicworks project involving the laying of asphalt, is unique. While little evidence was called as to the availability of such opportunities, it islikely that these would be limited. However, certain factors can be considered. I find on the considerable evidence of Mr. MacKenzie’s job search efforts, that he has adequately mitigated his losses. The work itself, while specialized in the sense that it derives from experience, is not the type where specialized training is required.Furthermore, most road construction jobs are seasonal in nature.

No evidence was adduced to show what types of employment Mr.MacKenzie engaged in during the fall and winter months. While the project is part of a larger scale highway construction in Labrador, Iassume that at some point the project will come to an end. At that stage, Mr. MacKenzie would not be expecting any notice. The workwould simply cease. Conduct of the Employer When terminating an employee, the employer must not engage in acts of bad faith. The seminal case in Canada is Wallace v.

United Grain Growers Ltd. (c.o.b as Public Press), (SCC), [1997], S.C.J. 94,where Iacobucci, J., wrote for the majority of the court: 103 It has long been accepted that a dismissed employee is not entitled to compensation for injuries flowing from the fact of thedismissal itself: see e.g. Addis, supra. Thus, although the loss of a job is very often the cause of injured feelings and emotional upset, thelaw does not recognize these as compensable losses.

However, where an employee can establish that an employer engaged in bad faithconduct or unfair dealing in the course of dismissal, injuries such as humiliation, embarrassment and damage to one’s sense of self-worthand self-esteem might all be worthy of compensation depending upon the circumstances of the case.

In these situations, compensationdoes not flow from the fact of dismissal itself, but rather from the manner in which the dismissal was effected by the employer. 104 Often the intangible injuries caused by bad faith conduct or unfair dealing on dismissal will lead to difficulties in finding alternativeemployment, a tangible loss which the Court of Appeal rightly recognized as warranting an addition to the notice period. It is likely thatthe more unfair or in bad faith the manner of dismissal is the more this will have an effect on the ability of the dismissed employee tofind new employment.

However, in my view the intangible injuries are sufficient to merit compensation in and of themselves. I recognizethat bad faith conduct which affects employment prospects may be worthy of considerably more compensation than that which does not,but in both cases damage has resulted that should be compensable. (underscore mine)

I adopt and I am bound by the decision of the Supreme Court of Canada in this case. As indicated, the Defendant conducted an investigation of its own into the incidents of June 2013. In reviewing all of the evidence, it is clear that they believed Mr. MacKenzie at least in part. However, they did not communicate that fact to him in such a way as to give that impression. Likewise, Mr. MacKenzie was greatly concerned that he was not being believed by his employer. For his part, he did not take steps that a reasonable person might have in the circumstances.

For example, the conduct to which the Humber Valley employee had engaged was, if proven, criminal in nature. In my view, the most logical step would have been to contact the police or an employment lawyer or both. His anxiety at the time was understandable and justified. However, there was no need to take a polygraph test and deliver it to the owner of another contractor. However, a review of the correspondence reveals that this in turn led to the decision to transfer him and ultimately terminate his employment.

In an e-mail dated July 5, 2013, Robert Moroney, Project Manager, stated the following: “…I find out Mike had delivered the polygraph report to Frank Coleman (HVP Owner), this is a complete breach of trust and communication protocol. I cannot have such a liability on our staff on a remote camp job therefore I have requested he be removed from duties (on this job!). I have arranged for a replacement to be on the ground by Sunday.” No evidence was presented to show that any attempts were made to relocate him. I find that was not really a concern for the Defendant.

I find that for all intents and purposes, the decision to terminate Mr. MacKenzie was made at that time. Nothing in the conduct of either party suggested they were prepared to deal with such an incident as took place in June. In their individual attempts to resolve the matter, both conducted themselves in such a way that served to aggravate and compound the feelings of mutual mistrust rather than help prevent it. AMEC ought to have taken a “hands on” and direct role in helping him deal with the situation. I agree with Mr. Edmonds that they chose the path of least resistance and effectively left Mr.

MacKenzie to fend for himself. Such action, in my view, constitutes bad faith and ought to result in an increased award of damages for Mr. MacKenzie, but not to the extent awarded in Wallace and other cases.

Quantum There are several factors which weigh in each party’s respective favours: Claimant - Age: 62 - Availability of similar employment: He was terminated when most construction projects were underway. - Character of the employment/Duties: He was a senior and experienced employee in a specialized field. - Mitigation: He has mitigated his losses and was able to secure some work since his termination. - Bad faith dealings on the part of the Defendant. Defendant - Character of the employment – He has extensive experience in the industry and is readily employable.

The job duties were not managerial or particularly specialized but they were unique. Furthermore, the work is seasonal in nature.

- Length of service – He was employed for three full seasons and part of two others. In reviewing the evidence, I find Mr. MacKenzie’s employment was seasonal in nature and dependent upon the weather in Labrador. Thus, for one season he was on-site until the end of November, while in other years, the work ended in October. At no point did his work begin before mid-May or end later than November. Furthermore, he was given 6 days vacation following every three week work period. There is no evidence which I accept indicating the amount of progress made on the project or duration.

The parties only indicated the work ended in October. I am left to choose an arbitrary amount. I find the work would have ended 12-14 weeks following his termination on July 19, 2013. In that time frame, Mr. MacKenzie would have been entitled to 24 days off or 3.43 weeks. Thus, he would have received approximately 8.57 – 10.57 weeks pay had he remained there to work. The rule of thumb for damages in wrongful dismissal cases has been described as one month’s salary for each year of service. However, his “years of service” have not been complete years.

I find using this formula, he would have been entitled to only 1.5 months pay for 2010-2012 and a further half-month’s pay for the incomplete seasons. In other words, he would be entitled to a total of two months or eight weeks. However, given the timing of the layoff, the finding of bad faith, his age and the considerable distance and sacrifice to go to work in a remote northern locale, I find he is entitled to a slightly higher amount. I award him a total of nine weeks pay. The second question to be determined is the average amount of pay Mr. MacKenzie received each week. Mr.

Sullivan suggests he should be paid based on a 40 hour work week at his hourly rate of $19.75 per hour. However, in his employment agreement, Mr. MacKenzie is specifically told he must work 12 hour days. Mr. MacKenzie submits that he received $2500 weekly but he did not submit any pay stubs in evidence. I find neither figure to be acceptable. Both parties agree that Mr. Sullivan worked 7 days per week at 12 hours per day. His hourly rate was $19.75 on the first 48 hours and time and a half on the remainder. In addition, he received 4% vacation pay.

Thus, I find the following: Weekly remuneration: 48 x $19.75 $948.00 36 x $19.75 x 1.5 $1066.50 Total Wages $2014.50 Total Vac. Pay (4%) $ 80.58 Total Per Week: $2095.08 Having found that Mr. MacKenzie is entitled to nine weeks pay, I also find he is entitled to prejudgment interest from the date of termination to the date of the hearing, along with his costs.

Total Damages: $2095.08/week x 9 weeks $18,855.72 Prejudgment Interest to the Date of the Hearing (4% per annum) $ 439.97 Costs (Filing fee + Service fees) $ 285.55 Total Judgment $19,177.33 The Claimant shall be responsible for any obligations to repay Employment Insurance he may have previously collected.

Summary In

summary, the Claimant has demonstrated he is entitled to nine weeks pay at his expected rate of pay per week ($2095.08) together with prejudgment interest and costs. The Claimant, Michael MacKenzie, shall have judgment against the Defendant in the amount of $19,177.33.

An order shall issue accordingly. Dated at Halifax, NS, on July 21, 2014. ______________________________ Gregg W. Knudsen, Adjudicator Original: Court File Copy: Claimant(

s) Copy: Defendant(s)