Danielisz v. Hercules Forwarding Inc., 2012 BCSC 1155

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Danielisz v. Hercules Forwarding Inc., 2012 BCSC 1155 Date: 20120802 Docket: S98821 Registry: New Westminster Between: Barbara Elaine Danielisz Plaintiff And Hercules Forwarding Inc. Defendant Before: The Honourable Madam Justice E.A. Arnold-Bailey Reasons for Judgment Counsel for the Plaintiff: Glenn A. LaughlinCounsel for the Defendant: Michael A. WattPlace and Date of Trial: New Westminster, B.C. May 16, 17, 18, 19, 20, September 8, 9, 2011Place and Date of Judgment: New Westminster, B.C. August 2, 2012 Introduction [1] The plaintiff, Ms.

Danielisz, is suing her former employer, the defendant, Hercules Forwarding Inc., for wrongful dismissalfrom her position as manager of its customs brokerage department (the “customs department”). [2] The main issue at trial is whether the plaintiff was constructively dismissed from her employment by the defendant as shealleges, or whether she repudiated her employment contract. In the event that she is found to have been wrongfully dismissed, theplaintiff claims damages in lieu of notice based on four and one-third years of employment with the defendant, and “Wallace damages”(pursuant to Wallace v.

United Grain Growers Ltd., (SCC), [1997] 3 S.C.R. 701) for mental distress she sufferedarising from the unfair and unduly insensitive way in which she was treated by the defendant. [3] The defendant’s position is that there was no fundamental breach of the terms of the plaintiff’s employment that amounted to aconstructive dismissal, that she was supported in her position, and had her authority affirmed by a representative of the defendant.

Inparticular, the defendant submits that there was no conduct by the employer or in relation to co-workers that viewed separately orcollectively amounts to a constructive dismissal. Further, the defendant submits that following the plaintiff’s commencement of acomplaint under the Employment Standards Act, R.S.B.C. 1996, c. 113 [ESA], claiming constructive dismissal, which she then withdrewon the day of the mediation, and her response thereafter, the defendant was entitled to consider the employment relationship ended by theplaintiff. Issues to be Decided [4] The issues to be decided are as follows: 1.

Was the plaintiff subject to a constructive dismissal from her employment with the defendant, or if the dismissal is not established,has she repudiated her contract of employment? 2. If the plaintiff was wrongfully dismissed from her employment, what sum in damages is appropriate in lieu of notice?

3. If the plaintiff was wrongfully dismissed is she entitled to “ Wallace damages”, and if so, in what amount? The Trial [ 5 ] At trial the plaintiff testified, as did her mother, Carol Ann Smith. The defendant called Amber Karlstedt from the defendant’s customs department and Robert Bruce Boles, who had retired in December 2010, but was previously a vice-president and part owner of the defendant.

He supervised the upstairs office where the plaintiff and others worked, and was the plaintiff’s direct supervisor. [ 6 ] As exhibits at trial the Court received a joint book of documents (Exhibit 2) and some further documents. Certain of the letters and emails between the plaintiff and Ms. Karlstedt, and the plaintiff and Mr. Boles, and the plaintiff’s applications for benefits are important in terms of the Court’s objective analysis as to whether the plaintiff was subject to a constructive dismissal.

Combined with the testimony of witnesses, these documents refer to events and conversations and problems in the workplace, and serve to demonstrate how the plaintiff and her employer regarded matters and responded to them. [ 7 ] After the plaintiff had exhausted her memory as to her visits to her doctor, her medical complaints, and the prescriptions she received, I ruled that limited clinical records from the plaintiff’s attendances at her family doctor were admitted into evidence not for the truth of their contents, not as the basis for any medical opinions, and not to establish the nature or extent of her alleged medical condition, but simply for the fact they were made: Seaman v.

Crook et al. , 2003 BCSC 464 and Samuel v. Chrysler Credit Canada Ltd. , 2007 BCCA 431 . The clinical records in this case related to the dates the plaintiff recalled seeing the doctor, her reported complaints, and what medications she was prescribed. The records were not rendered inadmissible by s. 42(4) of the Evidence Act , R.S.B.C. 1996, c. 124. [ 8 ] There was no medical evidence called in this case, expert or otherwise. The plaintiff’s family physician last saw her on June 28, 2005, and subsequently retired. She attended another physician, Dr. D.

Kelly, on July 13, 2005, and August 31, 2005, in relation to her depression and stress from work. [ 9 ] I have reviewed all the evidence in this case and the exhibits. I will not refer to the evidence about events and the climate of the workplace prior to 2005 in any detail because, although it was relevant background, it has no direct bearing on the main issues. First, I will set out the relevant facts arising from the evidence, the vast majority of which are not in dispute. In doing so I rely on my review of the evidence and the helpful written summaries provided by counsel.

I will include brief findings on the credibility and reliability of the witnesses. Thereafter, I will set out my findings on the evidence in the context of the applicable law. The Facts and Findings on the Evidence [ 10 ] The following are the facts. [ 11 ] The plaintiff, 42 years old at the time of trial, has a history of employment as a licensed customs broker. She commenced her employment with the defendant in the customs department on May 1, 2001. [ 12 ] The defendant is a trucking and cartage company that provides shipping, storage and customs clearance for goods.

It requires the services of a licensed customs broker for its operations. Customs brokers are licensed through the Canada Border Agency. [ 13 ] During the relevant time the defendant maintained a building for its operations with a small upstairs office for administrative staff. There were six female administrative staff members in the upstairs office, three of whom worked in the front part of the office and three of whom worked in the customs department located at the back of the office. They were supervised by Mr. Boles. The customs department was comprised of the plaintiff and the two employees she supervised.

They had desks close to each other and were required to perform their work often in close proximity. [ 14 ] In 2003 the plaintiff was promoted to manager of the customs department and became responsible for supervising its two employees. She was required to clean up “the mess” left by her predecessor and received a one-time bonus in 2004 for her efforts. She was also made a director of the defendant on June 1, 2004, because a licensed customs broker was required to be a director.

In 2004 Amber Karlstedt and Cherie Storms became the customs department’s two employees. [ 15 ] There was a history of dissension between the front office staff and back office staff comprised of the customs department. There was also a history of problems in the customs department that included disciplinary emails sent by the plaintiff to Ms. Karlstedt and Ms. Storms regarding issues relating to their work ethic and hours. Ms. Karlstedt and Ms. Storms were not particularly amenable to any form of criticism from the plaintiff and typically had a lot to say in response.

However, these problems appeared to have been successfully resolved insofar as between September and November 2004 the plaintiff sent complimentary emails to Ms. Karlstedt and Ms. Storms regarding their work performance, and recommended a raise in salary for them. Despite this, the plaintiff testified that these problems had never really been resolved. [ 16 ] Emails from this time indicate that the staff in the customs department openly expressed their dissatisfaction regarding various matters. Emails between the plaintiff and Ms.

Karlstedt referred to a “negative work environment”, “childish attitudes”, being “disrespected”, and working in “a tension filled environment”. These emails also reflect disputes between others in the upstairs office and the tendency for the plaintiff and the two employees in her department to use emails to criticize and belittle the staff in the front office. The plaintiff admitted to calling a member of the front office staff “stupid” in an email and to engaging in criticism of the front office staff with Ms. Karlstedt and Ms. Storms.

The plaintiff acknowledged in cross-examination that her involvement in this did not set a good example and was not proper conduct for a manager. In fact, the plaintiff agreed that she engaged in this type of conduct as a way of managing Ms. Karlstedt and Ms. Storms because it “bought her some peace”. She said she did not think it would cause disharmony because Ms. Karlstedt and Ms. Storms were already in conflict with everyone in the office and “it could not get any worse”. Ms.

Karlstedt testified that the plaintiff made derogatory comments about the front office staff throughout the time that she worked there and as a result the customs department staff did not socialize with the front office staff. This negative behaviour was occurring in late

2004 and early 2005, and was not known to Mr. Boles. [ 17 ] The plaintiff was aware of the need for harmony in the workplace. She counselled her staff as far back as 2004 regarding the need to get along “as best as possible” within the office. She acknowledged in cross-examination that one can work with co-workers one does not like, and that there is a difference between business and personal relationships within the office. [ 18 ] In the spring of 2005 interpersonal problems arose in the customs department, in particular between the plaintiff and Ms. Karlstedt.

There was a problem on March 15, 2005, that involved three-way email communication regarding work responsibility as between Ms. Karlstedt and Ruth, a staff person in the front office. That matter then appeared to be resolved. Ms. Karlstedt testified that in 2005 her relationship with the plaintiff was fine, except for this problem, whereas the plaintiff testified that by March 2005 “there was a lot of tension in the office and it was getting worse”.

She testified that her relationships in the office had started to deteriorate, that she found it “extremely stressful” and was “unable to function”, and said that it was “impossible to come to work”. However, the plaintiff did continue to come to work during this time and the work continued to get done. [ 19 ] Relationships in the customs department deteriorated seriously on April 26, 2005. The day prior Ms. Karlstedt had unexpectedly been left to run the department alone as the plaintiff had a dental emergency. She had been required to call in her co-worker, Ms. Storms, who was off.

When the plaintiff came back on April 26, Ms. Karlstedt limited her interaction with the plaintiff, who then, according to Ms. Karlstedt, said to her, “What’s wrong with you, you snotty little bitch?” The plaintiff stated that she had used the word “brat”, not “bitch”. [ 20 ] Because of their interaction Ms. Karlstedt felt that she had been harassed and unfairly treated by the plaintiff. She became very upset and cried. The plaintiff then apparently told her to “stop crying and causing a disturbance”, that she would “get her fired”, and to “go home”. Ms.

Karlstedt asked Ruth, who was in charge of the front office, for information regarding harassment by her supervisor. She was directed to Gail, another front office staff member, and then to Mr. Boles. [ 21 ] In an email to Ruth sent on the same day, the plaintiff wrote: I don’t know how much of this I can take...I refuse to deal with “Amber” being a snotty little bitch...I haven’t a clue what her problem is..she’s constantly.. “mad” at someone at some point...did she mention anything at all? [ 22 ] In another email sent several days later to an owner of the defendant resident in Los Angeles, Mr.

Burnham, the plaintiff referred to Ms. Karlstedt as a “snotty little brat”. [ 23 ] Mr. Boles described finding Ms. Karlstedt crying in his office on April 26, 2005. He heard her version of events and then spoke directly to the plaintiff at her desk, directing her to fix the problem and to get the work done. He denied yelling at the plaintiff, which the plaintiff claims occurred. He also told her to deal with him and not Mr. Burnham. Mr.

Boles sent an email confirming these events in which he indicated that he was “getting a little short with all the bickering going on”, to which the plaintiff responded that he had yelled at her in front of Ms. Karlstedt, without giving her an opportunity to first explain the situation, and had thus undermined her authority. Mr. Boles said that it was not his style to yell at “the girls” in the office, whereas he might yell at a driver. He said telling the plaintiff that she should “grow up” and “leave” as she claimed, were not things he was likely to have said.

With regards to his authority to take disciplinary steps in relation to Ms. Karlstedt, Mr. Boles said that he was the person authorized to deal with disciplinary matters including suspensions and terminations under the

Article 9 of the Employee Handbook, which was filed as an exhibit and supported his claim. [ 24 ] When the plaintiff attempted to discipline Ms. Karlstedt regarding her behaviour on April 26, 2005, in a manner that included a one-day suspension, Mr. Boles permitted Ms. Karlstedt to remain in the office, as opposed to requiring her to leave for the day. He recommended to the plaintiff that she send Ms. Karlstedt a warning letter, which the plaintiff did. Mr. Boles testified that when he did this he did not consider the effect it would have on the plaintiff’s authority in the customs department. [ 25 ] Ms.

Karlstedt testified that she felt that the warning letter was not deserved. She did her work and kept her head down, not wanting to lose her job. She limited her interaction with the plaintiff to what was necessary in order to get the work done. When Ms. Karlstedt then took the warning letter from the plaintiff to Mr. Boles to complain, he affirmed the plaintiff’s supervisory role in the customs department in relation to Ms. Karlstedt and Ms. Storms. [ 26 ] Despite Mr. Boles’ direction to the plaintiff not to involve Mr. Burnham, the plaintiff sent the email referred to above to Mr.

Burnham on April 29, 2005, in which she detailed office problems, including the difficulties with Ms. Karlstedt on April 26. [ 27 ] Between April 26, 2005 and June 2, 2005, the plaintiff continued to work in her position in the customs department. She went to a corporate meeting in Phoenix in early May and was out of the office for about a week. Both Mr. Boles and Mr.

Burnham were at that meeting and the plaintiff did not discuss her difficulties in the workplace with either of them during that trip. [ 28 ] After the plaintiff returned from this trip to the office she testified that she felt all the staff upstairs had turned against her while she was gone, that she was ignored, and calls for her were taken by others. Ms. Karlstedt denied the last claim, but said that she limited her dealings with the plaintiff to work-related matters. [ 29 ] On May 20, 2005, the plaintiff sent an email to Mr. Boles and copied Mr. Burnham, stating her views of the office personal dynamics.

It included that Ruth was in control of the office as opposed to Mr. Boles, there was a new friendship between Ruth and Ms. Karlstedt and Ms. Storms, and that the other staff had formed “an alliance” to force her to leave. At trial Ms. Karlstedt denied swearing at the plaintiff or telling the plaintiff that she should leave, as is referred to in this email. Ms. Karlstedt said that during the month of May the plaintiff was not approachable and would drop work on her desk and then walk away. The plaintiff would only communicate for work purposes. Ms.

Karlstedt said the work was getting done and the interpersonal tension did not interfere with that. [ 30 ] Mr. Boles spoke to the plaintiff several times to address the concerns she raised in her email of May 20. He told her he would have an office meeting. On May 26, 2005, Mr. Boles held an office meeting in his office, at which all the upstairs’ staff were present, except Ms. Storms.

[ 31 ] Ms. Karlstedt testified that Mr. Boles stated he wanted to sort out any interpersonal issues so that the employees could get along. Gail from the front office said she felt hurt by criticism of her by the plaintiff and cried. Other staff felt betrayed. The plaintiff said she was not having any more of the meeting and left. Ms. Karlstedt testified that the plaintiff did not cry at the meeting (as the plaintiff testified) but stood by the door with her arms crossed.

She said very little, did not acknowledge the concerns about her behaviour expressed by others, and then left. [ 32 ] The plaintiff said that she did not have a very good recollection of the meeting. She testified that she felt unfairly picked upon by the other staff who she felt were ostracizing her, and she left that meeting without any satisfactory resolution of the tension and trouble in the workplace. She denied hearing at the meeting that she had upset others by criticizing them behind their backs and said that this meeting occurred “after they had been torturing me for three weeks”. [ 33 ] Mr.

Boles testified that the meeting of the upstairs staff did not go well. He had hoped that things could improve and the workplace could be friendly as it had been previously. Ms. Storms was away for family reasons and so did not attend. He said Gail directed a comment or two towards the plaintiff and started to cry. Mr. Boles’ recollection was that someone else made a comment and then Linda, one of the front office staff, told everyone to keep calm and settle down. He said the plaintiff got upset and left. He described the state of personal relations in the upstairs office as in “turmoil”.

He said that the plaintiff, Ms. Karlstedt and Ruth simply could not get along. In his opinion the tone of the comments towards the plaintiff at the meeting was friendly and the others were trying to resolve things with the plaintiff. He said prior to the meeting it was clear that the plaintiff, Ms. Storms, and Ms. Karlstedt were not getting along as the plaintiff would stop by and speak to him and say that the relationships in her department were not good.

He said everyone was getting “fed up” and hoped that the meeting would solve the problem, but it did not. [ 34 ] On May 31, 2005, the plaintiff delivered a letter to Mr. Boles claiming that her position had changed and her authority had been undermined such that it amounted to a constructive dismissal. She made specific reference to s. 66 of the ESA and quoted it. She referred to the incident on April 26, 2005, when she had disciplined Ms. Karlstedt for “intolerable” behaviour and had imposed a one-day suspension, only to be unsupported in her decision by Mr.

Boles, who had directed her to substitute the one-day suspension with a warning letter. The plaintiff said that after this Ms. Karlstedt “became completely destructive, going to every employee in the office bad- mouthing me and creating complete chaos”. She made reference to an exchange she had with Ms. Karlstedt on May 19 in which Ms. Karlstedt told her that she did not have to listen to any “garbage” the plaintiff had to say, that the plaintiff was a “bitch”, had no authority, and should leave. She also referred to the meeting that Mr. Boles called on May 26, which had only made the situation worse.

The plaintiff concluded this letter as follows: ... I have spent the last 3 weeks upon my return to the office, in a completely “toxic” and unbearable working environment, which is at the point now [of] affecting my health, and my life outside the workplace. I feel that this situation would constitute as a “Constructive Dismissal”, in which case according to the Employment Standards Act a reasonable notice would be a minimum of “one month per year of service.” [ 35 ] The defendant, through Mr.

Boles, in a letter to the plaintiff dated June 1, 2005, stated that the company expected her to carry out her duties and manage the staff under her supervision. He stated that the defendant did not view the situation as amounting to a constructive dismissal. He admitted on cross-examination that when he received the plaintiff’s letter of May 31, 2005, he did not regard it as meaning the plaintiff was terminating her employment with the defendant. Further, Mr.

Boles stated that he had attempted to reinforce her authority with the staff who approached him, and that her role as supervisor of the customs department had been reiterated at the staff meeting held on May 26, 2005. [ 36 ] The plaintiff testified that after she received the June 1, 2005 letter from Mr. Boles she realized that nothing was going to change. She found that she could not go into work another day. She worked until June 2, 2005, and then saw her doctor, Dr. Warneboldt, on June 3, 2005, who wrote her a doctor’s note for six weeks’ medical leave due to stress. In various forms that Dr.

Warneboldt completed he referred to the plaintiff as suffering from depression, anxiety, panic attacks, and as having a prior history of the similar symptoms in 2002. He placed her on an anti-depressant medication.

In the report in support of her WCB claim his diagnosis was “stress reaction” and as clinical information he stated “severe workplace stress resulting in panic attacks, depressed mood, diarrhoea, palpitations, [and] insomnia”. [ 37 ] The defendant recognized the plaintiff’s medical leave and issued a record of employment to her that stated she was unable to work due to illness, and the plaintiff commenced the receipt of Employment Insurance benefits. These benefits continued into October 2005 based on extensions of medical leave approved by her subsequent doctor, Dr. D.

Kelly. [ 38 ] At trial the plaintiff testified about the various difficulties she endured as a result of stress and depression during this time, including an incident when she was taken by ambulance to hospital and kept for observation for several days. [ 39 ] In an application dated June 3, 2005, the plaintiff claimed disability benefits on the defendant’s extended health insurance with Great West Life, but was unsuccessful as the defendant did not have short-term disability coverage.

It was admitted at trial that she indicated to a representative of Great West Life in a telephone call on July 29, 2005, that she was “unable to return to work at Hercules” with the situation as it was at the time. She also admits saying in the same conversation that she was waiting for Hercules to rectify the problem, and that she may have stated that she was waiting for a “settlement from her employer, Hercules”, or words to that effect. On cross-examination the plaintiff said that the change she was waiting for was for the defendant to terminate Ms.

Karlstedt’s employment, and that she did not have trouble with any of the other staff, which was contrary to some of her earlier statements. [ 40 ] On June 7, 2005, the plaintiff applied for compensation from WorkSafeBC. On her application she described as the injury or occupational disease, “Stress, depression resulting from emotional abuse, mental games, abusive language over a period of 3 weeks + depression and panic attacks.” Under additional information she stated that: since 2002 it has been brought up to the owner that the “air quality” in my working environment is inadequate.

It is freezing cold year round, no windows, poor lighting, constant truck exhaust fumes, no proper air ventilation/circulation. Suffer severe headaches, breathing problems as a result, since this time. The last incident that resulted aside from this person involved several staff members playing mental

games and using abusive language for a period of over 3 weeks with the owner saying it will “blow over”. This resulted in severe depression having to go into that environment, panic attacks/anxiety attacks ... [ 41 ] This was the first time that the plaintiff had raised concerns about the working conditions in the defendant’s upstairs office. Mr.

Boles said there was good lighting, and the only prior negative comments from staff had been regarding the lack of windows at the end of the office. [ 42 ] The plaintiff’s WorkSafeBC claim was denied because in order for her to receive compensation for mental stress, her mental stress was required to be “acute” and that the event causing it “was a sudden, unexpected traumatic one”, which the WorkSafeBC case manager found not to be the case. [ 43 ] On July 5, 2005, the plaintiff commenced a claim against the defendant pursuant to the ESA .

In her complaint form the plaintiff sought $22,500 for constructive dismissal by the defendant and described the events at work prior to May 31, 2005. She concluded the details of her complaint as follows: After this meeting things were drastically worse and I felt that my position ‘no longer exists’ as I ‘manage’ no one...they refuse to listen and continue to hurl verbal abuse my way. Bruce Boles did not feel this was a problem. My doctor had placed me on medical leave shortly after this, from having to deal with this situation for over 3 weeks straight.

There is no way I can return to this environment, the thought makes me sick to my stomach. It has affected my personal life now and he feels there is nothing wrong. My position changed drastically and I no longer hold any ‘title’ or have any authority after Bruce Boles took that authority away, by providing the precedent that I have ‘no say’. They don’t think they have to listen to me at all. I feel that I am entitled to severance as a result of this circumstance being a constructive dismissal.

I no longer have a job or a ‘position’ at this company. [ 44 ] The defendant received notice of this complaint on or about August 10, 2005. Mr. Boles testified that he saw in the complaint that the plaintiff was seeking $22,500 from the defendant, and when she said that she no longer had a position in the company she was saying that she would no longer work there. However, on cross-examination, Mr. Boles said that upon its receipt the defendant did not interpret it to mean that the plaintiff was terminating her employment. [ 45 ] The plaintiff testified that while on medical leave she told Mr.

Boles in telephone calls that she wanted to go back to work, but nothing was being done to change the circumstances in order that she could. To her that meant that the defendant had to dismiss Ms. Karlstedt. [ 46 ] In the interim, between filing her complaint and the date set for mediation, the plaintiff had seen Dr. Kelly on July 13, 2005, and received a note that extended her medical leave. She delivered a copy of this note to the defendant. [ 47 ] It is clear that the plaintiff experienced additional stress due to limited finances during this period.

She took out a loan of $29,400 against her house, for which her grandmother co-signed. Her evidence is somewhat contradictory as to whether she received and kept all of the funds or whether her grandmother received half, but without her salary from work or short-term disability benefits her income was limited to Employment Insurance. [ 48 ] On August 25, 2005, the date set for mediation, both the plaintiff and Mr. Boles attended. The plaintiff decided to terminate the mediation and withdrew her complaint. At trial she testified that she was very upset at the mediation.

She said that the issue was her workplace environment and she could not return “unless something was resolved”. She testified that the representative of the Employment Standards Branch told her that he had spoken to Mr. Boles, and they would come to some resolution so that she could go back to work.

He recommended that she withdraw her complaint, which she then did. [ 49 ] Although she denied this to be the case at trial, at the examination for discovery the plaintiff admitted that part of the reason she withdrew her complaint was that she wanted more money in lieu of notice from the defendant than the maximum of $5,000 she could receive through the Employment Standards Branch.

According to the plaintiff the other part of the reason was that it was suggested to her she might take her position back if “things changed” in the workplace. [ 50 ] In the meantime in August the plaintiff had taken some steps to prepare her house for sale and listed it on August 27, 2005.

According to the plaintiff’s mother, she moved to Kelowna with her son in time for him to start school there in September 2005. [ 51 ] After the plaintiff withdrew her complaint at the mediation, the defendant delivered a letter to her dated August 29, 2005, stating: This letter is notice to you that based on your letter of May 31, 2005 to us and your Complaint filed with the Employment Standards Tribunal on July 5, 2005, a copy of which was provided to us on August 10, 2005, you have repudiated your contract of employment with Hercules Forwarding Inc. and as a result your employment has come to an end.

You claim in both your letter and the Complaint that circumstances in the workplace amount to a constructive dismissal of you from your employment. We have informed you previously that we do not view the circumstances as a constructive dismissal. We had expected that you would return to work once you were able to do so. Your July5, 2005 Complaint clearly states your view that you have been constructively dismissed and we understand that you have no intention of returning to work.

In the circumstances, we treat the Complaint as repudiation by you of your contract of employment terminating your employment effective immediately. Accordingly, we have included along with this letter any outstanding vacation pay owing up to date less your $500.00 loan balance, and we will provide you with a further Record of Employment. If the withdrawal by you of the Complaint on August 25, 2005 was meant to represent a change in your position, please inform us immediately. ...

[ 52 ] The plaintiff responded in an email dated August 30, 2005, stating: After seeking legal advice on this situation, I am told that being a “Director” of the company and holding a position on the Board of Directors I should have been continuing to receive my Salary while on leave.

As well you are continuing to use my “license” in my absence and this could damage my reputation in the industry should anything result from doing so. also as a side note -(I have never ever received a “directors fee” either for holding this position) I have received a [illegible] week pay from EI for a total of $2160.00 the entire time I have been off and have been forced to live off my credit cards this entire time as I have had no other source of income; as a result I am now forced to sell my home because of this situation.

I at no point ever ‘quit’ my position....I am still on medical leave as a result of the situation and because there has been nothing done to resolve the situation am unable to return to this environment. I have a Doctor[’]s note dated for today that states I am off work due to work place stress. Again as a side note I am a [sic] extremely shocked at the lack of support after the “mess” this department was left in when I took over; as well as the hours I had spent to bring it to the level it was before I left due to these circumstances.

I unfortunately am left with no choice but to proceed with obtaining some sort of compensation. [ 53 ] In fact, the plaintiff saw Dr. Kelly on August 31, 2005, and obtained a note that indicated that she was “off work due to work place stress” without a specified date of anticipated recovery. Mr. Boles agreed that the defendant did receive the doctor’s note about that time. [ 54 ] Mr. Boles testified that initially when the plaintiff went on medical leave he simply wanted her to get better and come back to work.

However, he considered her July 5, 2005 complaint to the Employment Standards Branch as an indication that she no longer considered herself to be employed by the defendant. He went to the mediation and when the time came to conclude the complaint she withdrew it. Mr.

Boles said that at this point he “did not know if [he] was fed up with her but [he] was getting there, and so yes, this was a little further along the path.” He also indicated that he was upset with the plaintiff’s reaction and mood at the mediation, and furthermore, on August 30 she claimed that she had a doctor’s note saying that she could not return to work that she did not have, as her subsequent doctor’s note was dated August 31, 2005.

He said that in his August 26, 2005 letter he wanted to give her an opportunity to be heard and that his final determination that her employment with the defendant should be terminated was made after she responded on August 30, 2005. Mr. Boles said that although she said that she had not quit her job in that email he interpreted her statement that she was “unable to return to this environment” as confirmation that she had quit her job. When Mr.

Boles was asked if he had considered paying severance to the plaintiff at that time he said that they had not come to that point in the situation, and at no time was there an indication to the plaintiff that the defendant would do so. [ 55 ] The defendant then advertised for a replacement on September 1, 2005. Ms. Karlstedt ultimately assumed the plaintiff’s position and the defendant hired another person to work in the customs department. The defendant needed a licensed customs broker to do business and needed to have such a person involved in its business. Ms.

Karlstedt had undertaken training to become a licensed customs broker. [ 56 ] In response to the plaintiff’s allegation that the defendant had used her licence in her absence, Mr. Boles said that they had been advised by the Canada Border Agency that they could operate for six months without a licensed customs broker on the premises. Mr. Boles also advised that it is a requirement that the licensed customs broker is a director and therefore the plaintiff was a director.

However, he testified that none of the directors of the defendant were paid director’s fees, and specifically as a director himself he had not received such fees. With regards to the defendant’s contribution to employees’ RRSPs, Mr. Boles said that the company contributed 3% to whatever amount an employee contributed. Enclosed in the defendant’s letter of August 29 was the amount that was owed to the plaintiff. [ 57 ] On October 17, 2005, the plaintiff sent an email to her friend and former co-worker in the defendant’s office, Margaret Klatt, in which she wrote: I’m in Kelowna now!

It was kind of a last minute thing..things were sooooo bad at “Hercules”...I couldn’t even think about going back there..even now I keep thinking..I don’t get it...I thought I was a “good” person.. but maybe not? turns out they all had a “meeting” and made me out to be this horrible person..Ruth, Gail < Amber< Cherie and even Linda... I am still so confused as to what I did???? You would not believe what I had to go through, how mean they were for weeks and I told Bruce a whole bunch of times, he just ignored it as usual.

I think I am definitely better off..I couldn’t stand the negative work environment..Ruth had some issues that definitely affected the entire work place. Anyways..all my “stuff” is still there (license, hoodie, pics etc..lol)....and I am still trying to get a couple of months severance from them..because I was on “medical” leave and then I heard they hired someone else when I had actually thought about attempting to go back there..so I am up here doing the “Spa” thing for about ½ the pay..lol...but I LOVE IT!!!! That was soo bad coming into that environment every day.

I hope to one day open up my own. [ 58 ] On October 20, 2005, the plaintiff sent Mr. Boles the following email that was copied to Mr. Burnham: Bruce/Martin My “Medical EI” has now expired, and upon consultation with my Doctor, even though there have been no changes made to the work environment, I intend on returning to my position in the very near future. I will let you know of the exact date once I see my Doctor again early next week.

Sincerely, Barbara Danielisz [59] On behalf of the defendant, Mr.

Boles responded to the plaintiff in an email dated October 21, 2005, that her employment hadended because, as stated in its previous letter, it had treated the statements made by her in her letter (of May 31, 2005) and her complaint(to the Employment Standards Branch) that she had been constructively dismissed as “repudiation by you of your contract ofemployment”. [60] At trial the plaintiff left the impression that she had moved to Kelowna at the end of October 2005 and that she did not startlooking for work until after she received the October 21, 2005 letter from the defendant, which is contradicted by the testimony of hermother, Ms.

Smith, and the plaintiff’s email to Ms. Klatt. [61] On May 8, 2006, the plaintiff commenced this litigation. [62] As part of her claim that she was entitled to director’s fees, the plaintiff alleges the defendant relied on her licence during 2010when she was absent, and the defendant was obliged to match her RRSP contribution of $500 per month. The evidence of Mr.

Boles wasno director’s fees were paid to directors, the defendant arranged an extension of six months in which to have the position of licensedcustoms broker filled, and that the defendant’s RRSP contribution was a percentage based on the employee’s contribution. [63] Overall, I find that the plaintiff was not a reliable witness. Where her account of events contradicts that of Mr. Boles or thewritten record, I accept the latter. She was selective in her memory of events and contradicted herself from time to time. For example, Ifind that she was inclined to downplay how rude she had been to Ms.

Karlstedt on April 26, 2005. It is more likely than not that shecalled Ms. Karlstedt “a bitch”. She also downplayed how much of the dissension in the workplace she had contributed to. The plaintiffwas also dishonest about having a doctor’s note in her August 30 email (when the evidence would indicate she got it the next day), andher intention to return to work as she expressed it in her October 20, 2005 email. Given that she had moved to Kelowna in September2005, enrolled her son in school, and found work in a spa, she had no immediate intention of returning to the Lower Mainland to work forthe defendant.

She was simply trying to extract compensation from the defendant. There is also no evidence before the Court that whenshe sent the October 20 email she had recovered sufficiently and that her doctor supported her return to work. [64] To a significant degree I find that the plaintiff was the author of her own misfortune in terms of her experience of a negativeatmosphere in the workplace. Despite her role as a manager she actively participated in, and sometimes initiated, communications thatwere designed to increase the dissension and conflict among the upstairs staff.

She did not constructively participate in the May 26, 2005meeting called by Mr. Boles, who continued to support her overall authority. There is no doubt she was suffering from stress anddepression, and the legitimacy of her medical leave is not challenged by the defendant. [65] I find that Mr. Boles was not a particularly effective manager but he was an honest witness. He simply wanted “the girls” to getalong, and when they could not, he became frustrated. His evidence was consistent with aspects of Ms. Karlstedt’s testimony as to eventsin the workplace and also consistent with the written record. I find that Mr.

Boles would have supported the plaintiff’s return to work hadshe continued to express that as her preference. His position was that she was the manager of the customs department, he wanted her todo her job and, insofar as she was able, to stop “the bickering” in her department, and for the staff in the upstairs office to get along. [66] I also find that it is unlikely that Ms. Karlstedt was as cooperative and focused on her work as she would now have the Courtbelieve.

However, her evidence was clear, cogent and consistent, and in the main I accept it, except I find that she downplayed aspects ofher negative interaction with the plaintiff to portray herself in a positive light. This was important because she continues to be employedby the defendant, and in fact occupies the plaintiff’s former position. I do find that the plaintiff likely called her “a snotty little bitch” andthat she became very upset as she had been trying her best to manage the workload in the customs department when the plaintiff hadbeen absent the day before. However, to the extent that Ms.

Karlstedt thought that she could behave badly in the workplace or exhibit aninsubordinate attitude, which she definitely did at times, it was the plaintiff who had set the tone for her department.

The Applicable Law and Analysis [67] It is useful to briefly set out the correct approach to a case alleging a constructive dismissal. [68] The law in this Province is that commencement of an action for damages for wrongful dismissal is an acceptance by theemployee of a constructive dismissal if such a dismissal can be proven, or if the dismissal is not established, a repudiation by theemployee of her contract of employment: Evans v. Listel Canada Ltd., 2007 BCSC 299, at para. 62. [69] In Suleman v. B.C. Research Council (1990), (BC CA), 52 B.C.L.R.(2d) 138 (C.A.), at 141, Mr.

JusticeHutcheon for the Court of Appeal held: The trial judge was of the view that neither the commencement of the action nor the pleadings required him to conclude thatMrs. Suleman must be taken to have resigned. I have difficulty in understanding that view. It seems to me that the commencement of theaction was either an acceptance by Mrs. Suleman of a constructive dismissal, if she could establish that result, or a repudiation by her ofher contract of employment, if she failed to establish that result. [70] Whether an employee has been constructively dismissed is a question of fact.

The onus of proving the dismissal rests upon theemployee making the claim: Giesbrecht-Schalla v. Great-West Life Assurance Co., [2000] M.J. No. 30 ( Q.B.). It is not the employee’sview of events that is to be relied upon, but the Court’s, based on an objective assessment of all the evidence. This is clearly stated inGiesbrecht-Schalla, as follows: 5 What is constructive dismissal? Whether an employee has been unjustly dismissed is largely a question of fact. The court must

scrutinize all of the evidence very carefully to determine whether or not a reasonable

interpretation supports the plaintiff’s contention.The analysis is objective, - it must not rely on the employee’s view of events but, rather, on a realistic assessment based on the totality ofthe evidence. The onus is on the plaintiff to satisfy the court that a constructive dismissal has occurred. [71] An employee may decide to act on a breach of the employment contract committed by the employer and end their employment.Or an employee may opt to continue with the employment.

If an employee decides to treat the breach as a constructive dismissal he orshe must communicate that decision to the employer in a reasonable time: Farquhar v. Butler Brothers Supplies Ltd. (1988), (BC CA), 23 B.C.L.R. (2d) 89 (C.A.), at 92 and 94. [72] To constitute constructive dismissal, the change to the employee’s contract by the employer must be a fundamental one, notsomething minor or insignificant. The Supreme Court of Canada in Farber v.

Royal Trust Co., (SCC), [1997] 1 S.C.R.846, stated: 33 ...Thus, it has been established in a number of Canadian common law decisions that where an employer unilaterally makes afundamental or substantial change to an employee’s contract of employment -- a change that violates the contract’s terms -- the employeris committing a fundamental breach of the contract that results in its termination and entitles the employee to consider himself or herselfconstructively dismissed. The employee can then claim damages from the employer in lieu of reasonable notice. ... [73] Also in Farber, Mr.

Justice Gonthier for the Court held (at para. 35) that “each constructive dismissal case must be decided onits own facts, since the specific features of each employment contract and each situation must be taken into account to determine whetherthe essential terms of the contract have been substantially changed.” [74] The question for the Court to consider in determining whether the employer’s conduct amounts to constructive dismissal issuccinctly stated in King v. Skyview Financial Advisors, [2006] O.J. No. 2649 (Sup. Ct.

J.): 20 Further, the plaintiff must establish on a balance of probabilities that the defendant’s conduct constituted a fundamental change inemployment or a unilateral change of a significant term of the employment contract. In other words, the plaintiff must establish afundamental breach of contract of employment.

The question is: whether the defendant’s actions viewed from the point of view of areasonable person demonstrated the intention to alter a fundamental term of employment contract and as [a] result be no longer bound bythat contract. ... [Emphasis added.] [75] Furthermore, it is a fundamental implied term of any employment contract that the employer will treat the employee withcivility, decency, respect and dignity. An employer who subjects an employee to treatment that renders competent performance of theirwork impossible or continued employment intolerable exposes itself to a claim of constructive dismissal: S.

R. Ball, CanadianEmployment Law (Aurora, Ont.: Canada Law Book, 1996) at para. 10:90 [Ball]. [76] In Lloyd v. Imperial Parking Ltd., (AB KB), [1997] 3 W.W.R. 697 (Alta. Q.B.), Justice Sanderman statedthe following in support of a finding that the manager’s conduct towards the plaintiff constituted constructive dismissal: 41 A fundamental implied term of any employment relationship is that the employer will treat the employee with civility, decency,respect and dignity.

The standard that has to be adhered to by the employer is dependent upon the particular work environment. ... [77] In Lloyd, Sanderman J. noted the type of behaviour by the employer that supported his finding that the plaintiff had beenconstructively dismissed: 38 The interaction between Mr. Noiles and Mr. Lloyd during the last four or five months of Mr. Lloyd’s employment was not merelythe byproduct of a personality clash. It was a calculated pattern of behaviour employed by Mr. Noiles. 39 Does this persistent conduct, which led Mr. Lloyd to leave his employment, constitute a constructive dismissal?

The answer isyes. The vulgar name calling, the failure to

schedule holidays and the suggestions of inappropriate sexual conduct with femaleinsubordinate workers would not support this conclusion by themselves. It is the repeated and continuous incidents of yelling andscreaming at Mr. Lloyd by Mr. Noiles in the workplace and the repeated threats to terminate his employment that support this finding.These two separate but interrelated patterns of behaviour form the basis of the case made out by the Plaintiff.

The other types ofbehaviour add to the overall strength of the Plaintiff’s case but it is not dependent upon them. [78] It is clear that for negative behaviour towards an employee by an employer to constitute a constructive dismissal it must be suchas to render continued employment beyond what an employee may reasonably be expected to bear. The threshold must be high enough topermit an employer to legitimately express frustration to an employee, make very direct comments about performance, or require theemployee to work in a workplace with a degree of discord or conflict. [79] As stated in Shah v.

Xerox Canada Ltd., (ON SC), [1998] O.J. No. 4349 (Ct. J. (Gen. Div.)), aff’d (ON CA), [2000] O.J. No. 849 (C.A.): 38 Where the conduct of management personnel is calculated to cause an employee to withdraw from the employment, it may, in myjudgment, amount to constructive dismissal. The test, I believe, is objective: it is whether the conduct of the manager was such that areasonable person in the circumstances should not be expected to persevere in the employment. As the particular circumstances arecrucial, each case must be decided on its own facts. The test should not be lightly applied.

An employer is entitled to be critical of theunsatisfactory work of its employees and, in general, to take such measures - disciplinary or otherwise - as it believes to be appropriate toremedy the situation. There is, however, a limit.

If the employer’s conduct in the particular circumstances passes so far beyond thebounds of reasonableness that the employee reasonably finds continued employment to be intolerable, there will, in my view, beconstructive dismissal whether or not the employee purports to resign. [80] On appeal, the Ontario Court of Appeal endorsed the trial decision, agreeing at para. 6 that “the court may find an employee hasbeen constructively dismissed, without identifying a specific fundamental term that has been breached, where the employer’s treatment

of the employee makes continued employment intolerable.” [ 81 ] The court is required to assess whether on the totality of the evidence the abusive treatment of the employee is so obscene as to amount to repudiation of the employment contract: Giesbrecht-Schalla , at para. 7. [ 82 ] With regards to the authority of an employer, in terms of ultimate decision-making power, Howard A.

Levitt, The Law of Dismissal in Canada, 3d ed., loose-leaf (consulted on 29 July 2012), (Aurora, Ont.: Canada Law Book, 2003) at 12:40 provides the following guidance: The company has the right to make the ultimate decisions affecting its affairs. However, if the company provides the employee with certain authority, that authority must be respected. If that authority is not respected, the employee may be able to resign and sue for constructive dismissal on the basis that his or her authority was usurped.

Although the company must allow its employee the authority it agreed to, the company always has a right to overrule its employees, particularly with respect to significant decisions. [ 83 ] An employer also has an obligation to prevent abuse and inappropriate conduct of its employees in the workplace.

As stated by Ball at 10:93: An employer has a duty to see that the work atmosphere is conducive to the well being of its employees and its failure to prevent the harassment of an employee by co-employees is an obvious breach of this duty that may amount to a constructive dismissal. [ 84 ] Where unfriendliness, confrontations between co-workers, or some hostility and conflict occurs, it will not amount to constructive dismissal in circumstances where it does not prevent the employee from doing their work: King at para. 23; Giesbrecht- Schalla at paras. 9 and 10. [ 85 ] Given the foregoing, it is clear that the threshold for behaviour of an employer providing a sound basis for an employee to successfully claim a constructive dismissal based on the employer’s conduct in the workplace must be such that a reasonable person in the circumstances should not be expected to persevere in the employment. [ 86 ] In the present case I find that the evidence falls short of establishing that the plaintiff was constructively dismissed.

At the time she left the workplace, or thereafter, it cannot reasonably be said that the actions of the defendant demonstrated an intention to alter a fundamental term of its contract of employment with the plaintiff, and as a result to no longer be bound by it. [ 87 ] Although there were clearly interpersonal difficulties in the office and the plaintiff had encountered some criticism from those she worked with, the defendant employer, through Mr. Boles, had clearly indicated that it wished her to remain in her position and carry out her duties. While Mr. Boles did not support her one-day suspension of Ms.

Karlstedt he supported her authority thereafter. As well, the Employee Handbook charged him with the responsibility for such disciplinary measures and not a person in the plaintiff’s position. Mr. Boles was not a particularly effective manager in terms of handling the negative dynamics in the upstairs office, but at the time the plaintiff left the workplace it was premature to find that her authority in relation to those she supervised had been seriously undermined. Other than the one-day suspension of Ms.

Karlstedt, the evidence indicates that the plaintiff’s authority to manage her department had been supported by Mr. Boles. [ 88 ] Similarly, I cannot find that the negative behaviour the plaintiff claims was directed towards her by her co-workers was such as to render her continued employment beyond what an employee might reasonably be expected to bear. I find that she exaggerated significantly how she had been “tortured” by her co-workers prior to her leaving on June 2, 2005.

Had she not been experiencing the stress that precipitated medical leave, the plaintiff might well have been able to overcome the interpersonal issues and carry on to productively manage her department.

It would seem she was most able in terms of the work she was required to do, and that even with the interpersonal difficulties the work in her department was done by her and her staff. [ 89 ] As is stated by Ball at 10:90, “Not every workplace blow-up automatically results in a poisoning of the working environment or in the constructive dismissal of the targeted employee.” [ 90 ] I also find that in the spring of 2005 the plaintiff herself played a significant role in fanning the flames of interpersonal discontent in the office.

The plaintiff was engaged in “poisoning the working environment” as much as she was “the targeted employee”. [ 91 ] While I have no doubt that Ms. Karlstedt was insubordinate and disrespectful at times, the plaintiff did not persevere in her efforts to manage her department because of the stress she was experiencing, and thus she went on medical leave. [ 92 ] Either way, I find that what had occurred at work prior to her departure does not surpass the threshold of what an employee might reasonably be expected to bear. The work was getting done. The atmosphere was unpleasant.

The plaintiff did not apply herself to improving it before, during, or after the May 26 meeting. [ 93 ] Once on medical leave, instead of indicating a clear intention to return when she recovered, the plaintiff filed complaints about the defendant, including the complaint to the Employment Standards Branch that asserted constructive dismissal and indicated an unwillingness to return to the workplace as it was. The notion that Ms.

Karlstedt had to be dismissed first before she would return was an untenable one based on matters as they then stood. [ 94 ] The plaintiff would have had a stronger claim for constructive dismissal if, upon returning to work after her medical leave, others in the workplace had made her position unbearable or her authority to run her department had been seriously undermined . However, that is not what occurred. [ 95 ] I find the defendant’s authority of Hulme v. Cadillac Fairview Corp. , [1993] O.J. No. 2883 (Ct. J. (Gen. Div.)) is applicable to this case.

In Hulme the plaintiff was found to have acted precipitously in claiming constructive dismissal as it was unreasonable for him to expect that a suitable project would be available immediately after he was removed from a major project because of his approach. The plaintiff was entitled to terminate his employment but there was no constructive dismissal on the facts (paras. 34-35).

[ 96 ] While it is not disputed that the mental stress experienced by the plaintiff was due at least in part to her work, I find that once she attended her doctor and obtained medical leave due to work-related stress, she decided to use the situation to what she perceived as her advantage, and filed the complaints with WorkSafeBC and the Employment Standards Branch. When one reads her complaints in both instances but particularly the latter, a reasonable person would conclude that she was asserting constructive dismissal and had no intention of returning to work for the defendant.

She was seeking financial compensation and not indicating an intention to return to work once she had recovered. [ 97 ] Despite his

interpretation of the complaint the plaintiff filed with Employment Standards Branch, Mr. Boles attended the mediation to resolve the complaint. It was only after the plaintiff withdrew her complaint and the mediation failed that the defendant determined that the plaintiff had repudiated her employment contract based on all that had gone before.

Even after she withdrew her complaint, in part due to the limited amount of severance available through the Employment Standards Branch, she responded to the defendant’s email of August 29 on August 30, 2005, stating that she had not quit and was still on medical leave and was unable to return to work as the defendant had not taken steps to alleviate the interpersonal problems at the office. She stated that she “had no choice” but to proceed with “obtaining some sort of compensation”.

In light of all that had gone before, the defendant was entitled to consider the plaintiff’s continued assertion that she planned to seek compensation for constructive dismissal as a repudiation of her contract of employment in the event she was unsuccessful. [ 98 ] Thus, in the present case the plaintiff brought a complaint of constructive dismissal against the defendant under the ESA , specifically under s. 66, which states, “If an employer changes an employee’s terms and conditions of employment, the employee may be found to have been terminated.” [ 99 ] In Macaraeg v.

E Care Contact Centers Ltd. , 2008 BCCA 182 , Mr. Justice Chiasson for the Court of Appeal held that the ESA “provides a comprehensive administrative scheme for the granting and enforcement of employee rights” (at para. 86; see also paras. 93 and 103). [ 100 ] I agree with the defendant that such an action by the plaintiff is analogous to the commencement of a lawsuit, and that when the ESA complaint was withdrawn without a finding of constructive dismissal, the plaintiff had repudiated her employment contract.

I also find that by her email response of August 30, 2005, the plaintiff accepted the repudiation of her contract by indicating that she did not intend to return to her employment and that such an acceptance by her was then incapable of being withdrawn. [ 101 ] I find this to be so, despite the fact that the plaintiff also continued to claim that she had not quit. The position that she asserted with the utmost of clarity was that she had been constructively dismissed and was seeking compensation from the defendant on that basis.

That was the position she articulated in her May 31 letter to the defendant and it did not change. It was her “fallback” position that in any event she was still on medical leave and had not quit. [ 102 ] I have considered that any termination of the employment relationship must be unequivocal on the part of the party doing the terminating: Beggs v.

Westport Foods Ltd. , 2011 BCCA 76 , and specifically (at para. 37) the test set out by David Harris, Wrongful Dismissal, loose-leaf , (Toronto: Thomson Canada Ltd., 1989), vol. 1 at 3-9: The test for voluntary resignation (as opposed to dismissal) is objective, focussing on the perceptions of a “reasonable employer” of the intentions of the employee based on what the employee actually says or does or, in some cases, on what he or she fails to say or do.

Among the relevant circumstances are the employee’s state of mind, any ambiguities in relation to the conduct which is alleged to constitute “resignation” and, to a certain degree, the employee’s timely retraction or attempted retraction, of his or her “resignation.” [ 103 ] I have also considered the standard of proof required to establish a voluntary resignation as articulated by Mr. Justice N. Brown in Bru v.

AGM Enterprises Inc. , 2008 BCSC 1680 at para. 98 . [ 104 ] However, in the present case I find that a reasonable employer would have concluded that despite her medical leave the plaintiff had no genuine intention of returning to work given her repeated assertions of constructive dismissal. This is consistent with the evidence that at the end of August 2005 the plaintiff had a firm plan to move to Kelowna with her son in early September 2005 in order that he could start school there.

The plaintiff was well established in her work at the spa by the time in October 2005 that she corresponded with her former colleague from work, Ms. Klatt, and then wrote to representatives of the defendant that she intended to return to work at a still unspecified time. [ 105 ] It is not the plaintiff’s commencement of a complaint under the ESA alone that constituted the repudiation of her contract of employment with the defendant absent a successful claim for constructive dismissal.

Rather, I find it is the totality of the circumstances from her May 31 letter to her email response on August 30 in the context of the withdrawal of her ESA complaint. Conclusion [ 106 ] For these reasons I dismiss the plaintiff’s claim that she was constructively dismissed from employment with the defendant, and she is found to have repudiated her contract of employment. Her claims against the defendant are dismissed. [ 107 ] As the successful party the defendant is entitled to its costs at Scale B. “The Honourable Madam Justice Arnold-Bailey”