Miller v. Integrated Health Clinic Inc. Date:, 2016 BCPC 440

Citation: Miller v. Integrated Health Clinic Inc. Date: 20161124 2016 BCPC 440 File No: 8825 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: SHELBY LYNNE MILLER CLAIMANT AND: INTEGRATED HEALTH CLINIC INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Claimant: S. Chern Counsel for the Defendant: M. Korbin Place of Hearing: Chilliwack , B.C. Date of Hearing: August 3, 2016 Date of Judgment: November 24, 2016 INTRODUCTION

INTRODUCTION [1] The Claimant, Shelby Lynne Miller, brings this action against the Defendant, Integrated Health Clinic Inc., for damages forwrongful dismissal. [2] The Claimant worked for the Defendant as a part-time Medical Laboratory Assistant (or Lab Tech) for about 17 months fromSeptember 23, 2013. The Defendant terminated the Claimant’s employment, on a without cause basis, effective March 29, 2015. It gavethe Claimant, 80 hours’ pay (equivalent to about 2.5 to 3.5 weeks’ pay) in lieu of notice.

The Claimant was 23 years of age when shewas terminated. [3] The Claimant says she should have been provided at least six months’ pay in lieu of notice, whereas the Defendant says giventhe Claimant’s young age, short service, and the junior level position she held, the appropriate notice period is only two weeks, but that itprovided more than two weeks’ pay in lieu of notice to her. Therefore, it asks that the Claimant’s claim be dismissed with allowablecosts awarded to the Defendant. ISSUES [4] The issues to be determined in this case are as follows: I.

What is a reasonable notice period in the Claimant’s circumstances? II. Did the Claimant fail to mitigate her damages? III. What is the quantum of the damages? BACKGROUND [5] The Defendant is a federal corporation, extra-provincially registered in British Columbia.

It offers various naturopathic andrelated services to its patients. [6] The Claimant applied to and was hired by the Defendant as a Medical Laboratory Assistant effective September 23, 2013. [7] The terms of the Claimant’s employment included the following: report to the Defendant’s Managing Director; successfullycomplete a three-month probationary period ending December 23, 2013; upon successful completion of probation, transition to apermanent part-time employee; starting wage is $15.00 per hour; and intended work week is approximately 20 hours, which may varywith need and will include some evening and weekend hours as necessary. [8] The Claimant’s duties included injection therapies, blood draws, compounding IV bags, and starting IV lines. [9] The Claimant worked between 22 to 33 hours per week, initially at $15.00 per hour and then at $17.00 per hour. [10] The Claimant was one of six Lab Techs at the Defendant, and she had no supervisory or managerial responsibilities. [11] After working for about six months, in March, 2014, the Claimant left on a one-year maternity leave and returned to work inMarch, 2015. [12] On or about March 12, 2015, the Defendant terminated the Claimant’s employment effective March 29, 2015 stating that herposition was made redundant and that it did not in any way reflect on her job performance, which was entirely satisfactory. [13] The Defendant provided the Claimant a positive reference letter, dated March 16, 2015.

ANALYSIS [14] At trial, the Claimant testified. Dr. Karen Parmar, ND, a co-founder of the Defendant, testified on behalf of the Defendant. Ihave no concerns with the credibility of either of the two witnesses. The parties also filed documentary evidence. I. What is a reasonable notice period in the Claimant’s circumstances? [15] In British Columbia, the Employment Standards Act, RSBC 1996, c. 113 (the “Act”) sets out the minimum standards that applyin most workplaces.

Relevant to the issues in this case is s. 63 of the Act which provides that after three months of consecutiveemployment, an employee may be eligible for compensation, written working notice, or a combination of the two as follows: after threemonths, one week; after 12 months, two weeks; and after three years, one week for each completed year of employment, to a maximumof eight weeks. No compensation is required when an employee quits, retires or is terminated for just cause, and it is up to the employerto show termination was for just cause. [16] In this case, just cause is not alleged.

The Claimant was dismissed without cause, and she was given approximately 2.5 to 3.5weeks’ pay for her 17 months’ service. This is within the statutory requirements. However, this does not limit what the Claimant maybe entitled to under the common law. The common law presumption that reasonable notice is an implied term in an employment contractis rebutted only if the contract of employment clearly specifies some other period of notice, whether expressly or impliedly: Shore v.Ladner Downs, (BCSC), para. 7.

In the present case, there is no express or implied reference to any notice period. [17] There are many cases dealing with wrongful dismissal, including what constitutes reasonable notice. As the court noted inNicholson v. Masonite International Corporation, 2014 BCSC 1247 , at para. 28: [28] What constitutes reasonable notice must be decided on a case-by-case basis, with reference to the character of the employment,

the length of service, the age of the employee, and the availability of similar employment, having regard to the experience, training, andqualifications of the dismissed employee: Bardal v. Globe & Mail Ltd. (1960), (ON SC), 24 D.L.R. (2d) 140 at 145,cited with approval in Honda v. Keays, 2008 SCC 39 at para. 50. [18] These four factors should not be regarded as exhaustive, but rather as the most important factors in determining a reasonablenotice period: Ansari v. B.C. Hydro & Power Auth., (BCSC). [19] The Court of Appeal for British Columbia in Saalfeld v.

Absolute Software Corporation, 2009 BCCA 18, emphasized theimportance of determining a range of reasonableness from recent British Columbia precedents. It said at para. 14 as follows: [14] ... this Court affirmed the importance of determining a range of reasonableness from recent British Columbia precedents.

Theexercise of looking to comparables and adjusting for differences permits a reasoned objective analysis, not only by a court, but by allwho must determine reasonable notice in particular circumstances… [case citations omitted] [20] In support of the Claimant’s claim, her counsel submits eight cases as appropriate comparables. I quote the following from hissubmissions: (

a) In Shore v. Ladner Downs (1997), (BC SC), 28 C.C.E.L. (2d) 151 (B.C.S.C.), affirmed May 5th, 1998,CA023187, a notice period of 5 months was determined to be appropriate for a computer programmer/systems analyst who was 32 yearsold, and was employed for 9 months. (

b) In Parakin v. Bandali Medical Services Inc., , [2000] B.C.W.L.D. 1033, the plaintiff was a 32 year old medicaloffice assistant with approximately 9 months of service. The court determined that reasonable notice was 8 months. (

c) In Brooks v. Nu-Way Distributors Ltd., [1978] 1 A.C.W.S. 96 (Man. Q.B.), the plaintiff was employed as a salesperson with 13months of service. The court determined that reasonable notice was 6 months. (

d) In Zik v. Biasutti Drywall Services

(1983) Ltd., (1996), 23 C.C.E.L. (2d) 150 (Ont. Gen. Div.), the plaintiff was a 45-year-oldcustomer service representative with 20 months of service. The court determined that reasonable notice was 6 months. (

e) In French v. Pike’s Transport Ltd. (1984), 48 Nfld. & P.E.I.R. 119 (Nfld. Dist. Ct.), the plaintiff was a 40-year-old dispatcher with9 months of service. The court determined that reasonable notice was 6 months. (

f) In Isaacs v. MGH International Ltd. (1984), (ON CA), 45 O.R. (2d) 693 (C.A.), reversing in part (1983), 2C.C.E.L. 72 (Ont. H.C.), the plaintiff was a 38-year-old purchasing agent with 7 months of service. The Ontario Court of Appeal upheldthe trial decision that reasonable notice was 9 months. (

g) In Katz v. Canada Mortgage & Lending Corp., 2009 Carswell Ont 1134 (Ont. S.C.J.), the plaintiff was a 28-year-old insuranceadjuster with 6 months of service. The court determined that reasonable notice was 4 months. (

h) In Mitu v. New Century Food & Paper Ltd., 2001 BCPC 105, the plaintiff was employed as a delivery driver with one year ofservice. The court determined that reasonable notice was 5 months. [21] However, the Defendant’s counsel points out that all of these cases are distinguishable from the present case. First of all, hesays only three of the eight cases are British Columbia cases, and all three of them predate the Saalfeld case which clearly dispelled thenotion that five to six months is the normal range of the notice period for short service employees.

The court in Saalfeld at para. 15 saidas follows: [15] … the respondent [employee] submits that recent jurisprudence supports a notice period of five to six months in short servicecases.

While B.C. precedents are consistent that proportionately longer notice periods are appropriate for employees dismissed in thefirst three years of their employment, I see little support for the proposition that five to six months is the norm in short service cases foremployees in their thirties or early forties whose function is significant for their employer, but not one of senior management. … Absentinducement, evidence of a specialized or otherwise difficult employment market, bad faith conduct or some other reason for extendingthe notice period, the B.C. precedents suggest a range of two to three months for a nine-month employee in the shoes of the respondentwhen adjusted for age, length of service and job responsibility: [case citations omitted]. [22] I agree with the Defendant’s counsel that it is not necessary to look to cases outside of British Columbia to draw comparables tothe present case.

There is nothing unusual in the Claimant’s circumstances that guidance cannot be drawn from other BC cases. Therefore, I will not address the non-BC cases the Claimant’s counsel refers to. Besides, the Defendant’s counsel says all of the casesthe Claimant relies on are distinguishable from the case at hand. [23] With respect to the three BC cases, the Defendant’s counsel says as follows: (

a) Shore v. Ladner Downs In this case, Mr. Shore was a supervisor. Post-Saalfeld, the outcome of this case would likely have been different – most likely a noticeperiod lower than five months as Mr. Shore was only 32 years old. (

b) Parakin v. Bandali Medical Services Inc. In this case, the court found Ms. Parakin’s expectation of long-term, full-time employment (provided she successfully completed herprobation, which she did) as an important factor in setting the notice period at eight months. Post-Saalfeld, the outcome of this casewould also most likely have been different. Ms. Parakin was also 32 years of age.

(

c) Mitu v. New Century Food & Paper Ltd. This case is completely distinguishable from the present case. Both the employee and employer were robbed. The court found theemployer played hardball. Absent all of the bad faith conduct on the part of the employer, notice would likely have been much lowerthan the five months awarded. [24] I agree with the Defendant’s counsel’s take on the Claimant’s three BC cases discussed above. [25] I now turn to the cases the Defendant relies on. I summarize the following from the Defendant’s counsel’s submissions: (

a) Pelech v. Hyundai Auto Canada Inc., (BCCA). Mr. Pelech was employed as a shipper/receiver (warehousematerial handler) for about four years. He was in his early 20’s at the time of his termination. The court found his position to beunskilled, and the then statutory notice period of four weeks to be reasonable. (

b) Garrett v. Alouette Laser Products Inc., [1996] B.C.J. No. 2328; (BC SC), 25 C.C.E.L. (2d) 87. Mr. Garrettwas employed to recharge photocopier toner cartridges and help around the office for about two years and nine months. He wasapproximately 26 years of age at the time of his termination. He was able to find comparable employment within six weeks oftermination. The court concluded that one month was a reasonable notice period. (

c) Lura v. Jazz Forest Products

(2004) Ltd., 2014 BCPC 247. Mr. Lura was employed as a lumber sales representative for abouttwo months. He was approximately 61 years of age at the time of his dismissal. He sought six months’ pay in lieu of notice. The courtnoted that Mr. Lura did not supervise other employees or set budgets. The court specifically referenced para. 15 of Saalfeld, and aftertaking into account the factors referenced in that paragraph, concluded that two months was a reasonable notice period in Mr. Lura’scircumstances. The Defendant’s counsel points out that Mr. Lura’s advanced age militated towards a higher notice period.

He submits that the converseshould hold true in that given the Claimant’s very young age, the notice period should be shorter. He points out that in Lura the courtstated at para. 59, that a reasonable notice period for a younger employee in Mr. Lura’s circumstances would have been one month. (

d) Richardson v. AIC Ltd., [1999] B.C.J. No. 2433. Ms. Richardson was employed as a receptionist for 11 months. She was 37years of age. Until three days before trial, the employer alleged just cause. The court concluded that Ms. Richardson was entitled to onemonth’s pay in lieu of notice. However, because of the employer’s bad faith conduct, the court added another month to the noticeperiod. The Defendant’s counsel points out that bad faith conduct is not an issue in the Claimant’s case. (

e) Scholer v. Hart Drug Mart Ltd., 2012 BCPC 220 . Ms. Scholer was employed as a cashier for 10 months in an entry-level position. She had no supervisory duties. She was 55 years of age at the time of her dismissal. The court concluded that fourweeks was a reasonable notice period, given her age and the general economic downturn at the time, making it harder for her to findother employment. The Defendant’s counsel submits, absent these factors in the Scholer case, the notice period would have been lower. (

f) Saalfeld v. Absolute Software Corporation, 2009 BCCA 18; 2008 BCSC 760. Ms. Saalfeld was employed as a FederalTerritory Manager for nine months. While her position was a responsible and relatively senior one, it did not carry managementresponsibilities. She was 35 years of age at the time of her dismissal. The trial judge awarded her five months’ notice.

After noting (atpara. 15 as quoted above) that five to six months’ notice is not the norm in short service cases for employees in their thirties, the BCCourt of Appeal concluded at para. 18 that “while the award on the evidence before the trial judge was on the very high end of anacceptable range” that it did not warrant appellate intervention. The Defendant’s counsel points out that the Saalfeld case is an important one as it put an end to generous notice periods awarded to shortservice employees in their thirties and forties in pre-Saalfeld cases that the Claimant is relying on.

He says the court in Saalfeld wasspeaking of employees significantly older than the Claimant, employed in more significant positions with their employers. He submits iftwo to three months’ notice is reasonable for that type of an employee, the notice period for someone in the Claimant’s shoes should besignificantly lower. [26] Now turning to the present case, I will discuss the four important factors (that is, the Bardal factors) that must be considered indetermining the appropriate notice period. (

a) Character of the Employment [27] While the character of employment and levels of responsibility are important, courts do not appear to have been seriouslyconcerned with the minutia of the employment being terminated, and the law does not seem to treat special competence or the lack of itas a particularly important factor in the determination of the notice period, although courts have occasionally commented upon theperformance of the dismissed employee: Ansari, at para. 17.

An employee’s efforts and contribution to the financial success of theundertaking is not a factor to be taken into account in fixing reasonable notice: Ansari, at para. 20. The court is not entitled to award abonus for the employee’s best efforts in the guise of increased notice, and by the same token, the employer is not entitled to penalize anemployee for less than satisfactory service by reducing the notice period: Ansari, at para. 21. [28] In the present case, the Claimant was hired on a part-time basis as one of six Lab Techs. Her position was an entry-levelposition. There was no issue as to her performance.

The employer was complimentary of her performance and provided a positivereference letter. She was one of the three most junior Lab Techs that the Defendant dismissed from their employ due to a corporatereorganization necessitated by a regulatory concern.

[ 29 ] Dr. Karen Parmar testified as to the circumstances surrounding the corporate reorganization and the rationale for dismissing the three most junior Lab Techs, including the Claimant.

Since just cause is not an issue and the Claimant is not alleging any bad faith on the part of the Defendant in these proceedings, it is not necessary for me to discuss the details of the corporate reorganization or the rationale for the Lab Techs’ dismissal. [ 30 ] The Claimant submits that although the Claimant’s position with the Defendant was non-managerial, it was technical in nature and required a specific skillset and its significance to the Defendant’s business cannot be understated.

That may be so, however, according to the principles enunciated in Ansari , these factors are not to be taken into account in determining the reasonable notice period. (

b) Length of the Service [ 31 ] Length of service is an important factor as it bears directly upon the employee’s prospects for future employment: Ansari , para. 25 . The law requires a longer notice period for a long-term employee, even though discharged employees of the same age, skill and responsibility suffering under the same economic factors must be assumed to require an equal period to obtain equivalent employment.

The reasons for this anomaly may be that a long-term employee has a moral claim which has matured into a legal entitlement to a longer notice period: Ansari , para. 26 . [ 32 ] In the present case, the Claimant was in the Defendant’s employ for only 17 months.

According to Saalfeld and as stated in Lura : in British Columbia, as a general rule, there is no presumption of a six-month notice period for short-service employees; the appropriate range when adjusted for age, length of service and job responsibility is two to three months, provided factors such as inducement, evidence of a specialized or otherwise difficult employment market, bad faith conduct, or some other reason for extending the notice period are not at play. None of these factors are at play in the Claimant’s case.

However, I will later address the Claimant’s contention that she found it difficult to secure similar employment. (

c) Age of the Employee [ 33 ] Age is also an important factor that bears directly upon the employee’s prospects for other similar employment: Ansari , para. 27 . As noted in Lura at para. 53 , “[a]s a general rule and in the absence of contrary evidence, it can be presumed that employment opportunities for older employees are more limited than they are for younger employees.” [ 34 ] In this case, the Claimant was only 23 years of age when she was dismissed. (

d) Availability of Similar Employment [ 35 ] The Claimant submits that while her skills and competencies were readily transferable to other medical lab assistant positions, she was unable to find suitable alternative employment quickly.

She said it took her seven months to find her current employment with Cloverdale Optometry as an Optometric Assistant, and that too at lower compensation than what she was receiving while employed by the Defendant. [ 36 ] On the one hand, she says at the time of her dismissal, the job market for medical lab assistants was depressed, but on other hand, she says she was not able to secure any of the medical lab assistant positions she applied for due to a “competitive job climate”.

The Defendant points out that even though the Claimant did her practicum at BC Biomedical (now Life Labs), she did not pursue employment with them as their hours did not work with the daycare needs of her child. [ 37 ] Dr. Karen Parmar’s evidence is that while there were policy changes afoot regarding the delegation of naturopathic medical services to both licensed and unlicensed individuals, including medical lab assistants, the College of Naturopathic Physicians of British Columbia had not mandated that the medical lab assistants not perform the restricted activities.

Therefore, she said, some doctors were continuing to have medical lab assistants perform the restricted activities, whereas the Defendant chose not to for potential liability reasons. [ 38 ] The Defendant submits that the issue is not the availability of similar employment, but rather the Claimant’s lack of efforts to secure similar employment. [ 39 ] The Defendant says she made no efforts for the first three months (April, May and June, 2015), and even after that she was looking for a job in other areas. By her own admission, the Claimant was very busy with her life at that time.

Therefore, it says it is not appropriate to award the Claimant six months’ notice. [ 40 ] In Ansari , the court discussed the “economic factor” referring to the economic circumstances making discharge necessary or affecting the likelihood of alternative employment. At paragraphs 29 and 30, the court pointed out that the length of notice is not equivalent to the period required to find new employment, and to so hold is not appropriate as it would make the employer solely responsible for the lack of available positions due to economic factors.

The court said while the economic factor should be considered in determining the notice period, it should not be given undue emphasis. [ 41 ] In the Claimant’s case, the evidence does not indicate lack of availability of similar employment. [ 42 ] Having considered the Bardal factors and applied them to the circumstances of the Claimant, I find that a reasonable notice period in the Claimant’s case is six weeks. This is consistent with the range suggested by the court in Saalfeld at para. 15, when adjusted for the Claimant’s young age, low level of responsibility, and short service. II.

Did the Claimant Fail to Mitigate her Damages? [ 43 ] The effect of a failure to mitigate damages is a reduction in the notice period.

[44] As the court in Szczypiorkowski v. Coast Capital Savings Credit Union, 2011 BCSC 1376 , noted at para. 90: … the defendant must prove that the terminated employee has failed to mitigate damages. This onus is “by no means a light one” (RedDeer College v. Michaels (1975), (SCC), [1976] 2 S.C.R. 324 at 332, 57 D.L.R. (3d) 386 at 391).

The defendant mustestablish, first, that it would have been reasonable for the plaintiff to do more in an attempt to find new employment and, second, that ifthe plaintiff had done more, he would have been successful in obtaining employment. [45] In the present case, the Defendant submits that the Claimant did not apply for a medical lab position at all during the first fewmonths after her dismissal because she was “very busy with [her] life” and later she was applying for positions in other fields, many ofwhich she was not qualified for or experienced in.

It submits that there is no evidence of lack of availability of similar employment andthat if the Claimant had taken reasonable steps to secure similar employment, she could have. [46] The Claimant, on the other hand, submits that she took diligent efforts to mitigate her damages. She relies on the followingpassage from Forshaw v.

Aluminex Extrusions, (BC CA), at pp. 6-7: The duty to “act reasonably”, in seeking and accepting alternate employment, cannot be a duty to take such steps as will reduce the claimagainst the defaulting former employer, but must be a duty to take such steps as a reasonable person in the dismissed employee’s positionwould take in his own interests – to maintain his income and his position in his industry, trade or profession. The question whether ornot the employee has acted reasonably must be judged in relation to his own position, and not in relation to that of the employer who haswrongfully dismissed him.

The former employer cannot have any right to expect that the former employee will accept lower-payingalternate employment with doubtful prospects, and then sue for the difference between what he makes in that work and what he wouldhave made had he received the notice to which he was entitled. [47] The evidence indicates that soon after dismissal, the Claimant applied for a casual position with one of her former employers,Medisys Health Group.

In the hope of getting this position, and also due to family reasons and caring for a very young child, she did notactively engage in her job search during the first three months of April, May and June, 2015. The Medisys position did not materialize. She ramped up her job search from July, 2015 onwards and secured her current position in October, 2015. She testified that she spenttwo hours per day online looking for jobs, including medical lab jobs. She was pursuing employment in a wide variety of areas forpositions completely different from a medical lab assistant.

She said by that time she was desperate to get any job. She indicated toprospective employers that she was “seeking a change in career.” [48] Based on the evidence before me, I find that the Claimant did act reasonably in seeking and accepting alternate employment,given her personal circumstances of having to care for a very young child and at the same time dealing with the consequences of herdismissal upon return from maternity leave.

Although there was some pause in her job search in the first three months, she later tookactive steps to secure any job she could. [49] I conclude that the Defendant has not met its onus of showing that the Claimant failed to mitigate her damages. Therefore, therewill be no reduction in the notice period I have determined. III. What is the Quantum of the Damages? [50] The Claimant submitted that on average she worked about 30 hours per week at $17.00 per hour, yielding $510.00 per week. Applying this rate to the six-week notice period, I award damages to the Claimant in the amount of $3,060.00.

Since I have found thatshe did not fail in her duty to mitigate, there will be no reduction to this amount. The only offset will be the severance pay of $1,372.75that she has already received from the Defendant. That leaves a balance of $1,687.25 in damages the Claimant is entitled to receive fromthe Defendant.

ORDER [51] The Claimant shall have judgment against the Defendant for the sum of $1,863.25, comprising the balance of $1,687.25 indamages, and $156.00 of filing fees and $20 of service fees as pled in the Claimant’s Notice of Claim. [52] From the amount of $1,863.25, the Defendant is permitted to withhold and remit such amounts as may be required by law. Since the parties did not make any submissions regarding the withholdings, I will leave it to them to comply with any legal requirements. [53] The Defendant shall make all payments contemplated in this Order within 60 days of the date of this judgment.

By the Court The Honourable Judge V. Chettiar Provincial Court of British Columbia