HA HYUNG, PARK v. HA HYUNG PARK,, 2017 SKQB 156

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 156 Date: 201 7 05 31 Docket: QB 352 of 2010 Judicial Centre: Yorkton BETWEEN: HA HYUNG, PARK and HA HYUNG PARK, Administrator ad litem of YOUNG JA, JANG, Deceased PLAINTIFFS - and - 101143482 SASKATCHEWAN LTD. and DO SUP SHIN DEFENDANTS Counsel: Wayne M. Rusnak, Q.C. for the plaintiffs Richard A. Leland, Q.C. for the defendants JUDGMENT BARRINGTON-FOOTE J. MAY 31, 2017 A. INTRODUCTION [ 1 ] The plaintiff, Ha Hyung Park, and his wife, Young Ja Jang – who is now deceased – were employed by the defendant 101143482 Saskatchewan Ltd. [10114] and Do Shup Shin [Mr. Shin] to manage the Yorke Inn Motel [Yorke Inn] in Yorkton,

Saskatchewan, pursuant to an agreement dated August 12, 2009 [employment contract]. The plaintiffs claim that the defendants breached the employment contract by terminating Mr. Park and Ms. Jang without cause, effective October 31, 2010. They claim general, special and punitive damages. [ 2 ] The defendants tell a very different story. They say that Mr. Park and Ms. Jang were terminated for cause, as a result of Mr. Park’s insubordination and various other breaches of the employment contract. They say that they paid the plaintiffs the amount provided by the contract on termination for cause.

They have also counterclaimed for damages. B. EVIDENCE 1. The Employment Contract [ 3 ] Mr. Park and Ms. Jang were born in Korea. They have two children, both of whom are now university students. Mr. Park has partially completed his doctorate in urban planning. After the family immigrated to Canada in 2005, he – like many well educated immigrants – was unable to find work in his field, and as a result, decided to seek out a business opportunity. To that end, he responded to an advertisement in a Korean language newspaper for a motel manager in August 2009.

As it happened, that motel was the 24 room Yorke Inn, which Mr. Shin had recently agreed to purchase. [ 4 ] When Mr. Park called, he spoke to Yang Sook Shin – who I will refer to as “Yang” – the Vancouver realtor who found the Yorke Inn for Mr. Shin, and who helped him look for a manager. It was Mr. Park’s evidence that he advised Yang of his qualifications, and that he wished to invest in a small business. He sent a resume. Yang advised that he would speak to Mr. Shin to determine if he was interested. Mr. Park said that Yang called back minutes later to advise that Mr.

Shin was willing to work with investors, and would meet with Mr. Park. [ 5 ] Mr. Park, Mr. Shin and Yang met at a Coquitlam hotel on August 10 [August 10 meeting]. Mr. Park testified that they discussed the manager’s job, but spent more of the two hour meeting discussing his interest in a joint venture. He said that Yang brought the documents relating to the purchase of the Yorke Inn to the meeting. Mr. Park said he did not have enough money to buy a motel on his own, and had no terms in mind when he went to the meeting. He claimed it was Mr.

Shin who proposed that he invest 25% of the $1.127 million purchase price of the Yorke Inn. [ 6 ] Mr. Park believed such an investment would be manageable. He said he told Mr. Shin he wanted to go to Yorkton to see the motel for himself, but that Mr. Shin objected, claiming it might compromise the purchase to disclose the existence of another purchaser. It was Mr. Park’s evidence Yang then commented he could go to Yorkton as the manager, and invest the 25% later. Mr. Park left the meeting believing, on the basis of Mr. Shin’s and Yang’s representations, he had the right to do exactly that. [ 7 ] Mr.

Shin and Yang both told different stories about key aspects of the August 10 meeting. They both said Mr. Park was there for a job interview, not to discuss a partnership. Mr. Shin did not remember a discussion of price. He claimed Mr. Park proposed a 10% partnership. Mr. Shin said he flatly refused, as he did not need a partner, and told Mr. Park he had to decide by the next day if he wanted to be the manager. [ 8 ] Yang – who professed to have a poor memory of the meeting and its aftermath – denied he brought the purchase documents, or that Mr. Park was told the purchase price for the Yorke Inn.

He also testified that Mr. Park raised the issue of partnership at the meeting. He said that Mr. Shin “ignored” the issue, and told Mr. Park not to talk like that. Yang professed amazement at the notion that Mr. Shin would discuss partnership with a person he did not know. However, Yang also said that Mr. Park proposed a 10% partnership sometime after the meeting. He did not remember when. He said that in response, Mr. Shin offered Mr. Park the chance to invest, as he knew Mr. Park could not do so. He said Mr. Shin told Mr. Park he had to decide by the next day whether he wanted to be a manager, or an investor.

He said that the next day, Mr. Park told Yang he would go as the manager. [ 9 ] Mr. Shin had a poor memory of the August 10 meeting, and for many other events. He could not, for example, recall if he had interviewed other candidates for the Yorke Inn position. He volunteered that his “memory is no good”. He commented more than once about his difficulty remembering what happened six or seven years ago. He claimed that he remembered the discussion about a 10% partnership only after discussing the issue with Yang in his lawyer’s office the week of trial. [ 10 ] I concluded that Mr.

Shin and Yang agreed what they would say about the discussion of the partnership issue, and failed to get the details straight. Mr. Shin’s evidence about this issue was not credible. Indeed, I concluded – based as well on other internal inconsistencies in his evidence, inconsistencies between his evidence and other evidence, his demeanour, his selective memory, and my conclusion that Mr. Park was generally a credible and reliable witness – that Mr. Shin was neither credible nor reliable. [ 11 ] I also concluded that Yang was not credible or reliable.

I concluded that he had a poor memory of these events, and that he was often – at best – speculating or offering conclusions, rather than testifying from memory. His evidence as to the 10% partnership discussion after the meeting was the product of his collaboration with his client, Mr. Shin. It was inconsistent with his evidence that he was not involved in any business discussions involving Mr. Shin and Mr. Park after the employment contract was signed and with his evidence that Mr. Shin bluntly dismissed Mr. Park’s request to invest at the August 10 meeting. [ 12 ] In the result, I accept Mr.

Park’s version of what occurred at the August 10 meeting, which was consistent with the course of events. The parties discussed the partnership opportunity in the manner he described. They also discussed the duties of and compensation for the manager’s job. Mr. Shin described various ways for Mr. Park and his wife to earn money, in addition to a base income. In particular, he said that they would be entitled to proceeds from the guest laundry, confectionary sales, recycling, and revenue from a sign on the motel property that displayed third party advertising [advertising revenue].

He was aware of that revenue, as it was referred to in the agreement to purchase the motel. [ 13 ] Mr. Shin decided to hire Mr. Park shortly after the meeting. Yang – who had no expertise in such matters – prepared a draft of the employment contract the next day. Mr. Park asked for certain changes, which Yang incorporated after communicating with Mr. Shin. The contract did not refer expressly to the advertising revenue. Mr. Park testified that he raised the issue, and was dissuaded

from asking for that amendment by Yang. Yang told him Mr. Shin was unpredictable, and might react badly. Mr. Park said, and I believe, that Yang emphasized that he had a valuable opportunity to go into business with the successful Mr. Shin. Yang confirmed that he told Mr. Park that Mr. Shin was very wealthy, and had five motels, to give Mr. Park comfort that Mr. Shin could meet payroll. Mr. Shin also touted his own wealth and business acumen. They sold Mr. Park to entice him to move to Yorkton and take the job. [ 14 ] In the result, Mr. Park and his wife executed the employment contract on August 11. Mr.

Shin – who essentially professed no memory of or involvement in the contract negotiation and simply signed the final version – did so on August 12. Although the employment contract named Mr. Shin as the employer, and “Ha Hyung Park & his spouse” as the employee, the parties agree that both defendants are the employer. The contract specified a 36 month term, to commence when Mr. Park and Ms. Jang assumed their duties as “Motel Manager”. It specified that their duties included the following: A. Stable operation in the Front Desk and Housekeeping B. Maintenance of the Property C.

Reporting business on a daily basis and paper works D. Recruiting and training staff E. Controlling the Expenditures F. Marketing and Advertising F. Perform related duties to run the business smoothly. [ 15 ] There were nine items listed as “compensations”. They included $4,500.00 gross pay per month, two weeks paid vacation, a manager’s living unit, vehicle expenses, and relocation expenses from Vancouver to Yorkton. They also included the following: 6. Possible additional income apart from salary, e.g.: laundry service, sales of confectionary items, recycles item (sic) … 8.

Manager has the power to allocate the monthly budget of $1500 for house keeping’s (sic) [ 16 ] Mr. Shin explained that the $1,500.00 monthly budget was to purchase supplies and services for the motel, not to pay for housekeeping staff. Finally, s. 10 of the employment contract dealt with termination. It provided that the employee must give a minimum of two months’ notice. It also provided as follows: Termination notice by the Employer must be given minimum 2 months in advance. The notice can not [sic] be given without warrant. [ 17 ] The contract did not define the term “warrant”. Mr.

Park testified that he looked at a Korean dictionary definition at the time, and found that it meant a document issued by a judge to authorize an arrest. It was his evidence he understood he was subject to termination if he did a “bad thing” that resulted in the issuance of a warrant and his arrest. Yang said he thought “warrant” meant a “reasonable reason” to terminate. There was no evidence that the parties discussed the meaning of “warrant”. [ 18 ] Mr. Park and Mr. Shin met several times in Vancouver before he and his family moved to Yorkton. Some of those meetings included Mr.

Park’s wife, and at least two – including one at Mr. Shin’s apartment – included his children. Mr. Shin claimed that they were social occasions, other than one meeting about a security camera system. Although these meetings were – as Mr. Shin said – an opportunity for the parties to get to know each other, they also included, as Mr. Park said, continued discussions about Mr. Park’s and his wife’s potential investment. Among other things, Mr. Shin advised Mr. Park that each of them should own a 12.5% share in the Yorke Inn. He gave assurances to Mr.

Park about the schooling available for his children in Yorkton, which was an important consideration for the plaintiffs. 2. Managing the Yorke Inn and Alleged Breaches of Employment Contract [ 19 ] Mr. Park and his wife took up their duties at the Yorke Inn on September 21, 2009. The Park family took up residence in the manager’s quarters, which were on the second floor above the office. The motel office was generally open from 8:00 AM to midnight. Mr. Park testified that he and his wife worked seven days a week, and were on call for front desk duty even when the office was closed.

He said he worked 15 hours a day, and his wife 10 hours. His children, who were then in grade 9 and grade 11, also helped after school, working about two hours a day. Mr. Park and Ms. Jang took no holidays prior to their termination a year later. [ 20 ] The Yorkton economy was very strong at the time. Mr. Park said that strength, together with his family’s very hard work, resulted in a very high occupancy rate. He said those results were not easy to achieve. In particular, he said that there was a very high turnover in cleaning staff, with the result that the Park family often had to step in to fill the gap.

It was his evidence that there were 25 cleaning staff hired during his 13 month tenure. He said they kept quitting, often simply not returning to work. I accept that evidence and reject Mr. Shin’s vague suggestion that staff turnover was a result of the plaintiffs’ incompetence. [ 21 ] Mr. Park testified that Mr. Shin – who had other motel properties in Alberta, Saskatchewan and Manitoba – visited Yorkton on several occasions. Mr. Shin confirmed that he was there when they took over the motel in September 2009, in November 2009, in July 2010, August 2010, and on other occasions.

They also spoke regularly by telephone about any financial or operational questions that arose. Mr. Park described a positive relationship, which included meals with the Park family when Mr. Shin visited. [ 22 ] Mr. Park also sent the daily written reports called for by the employment contract to Mr. Shin, as well as monthly reports. The daily reports were in a format specified by Mr. Shin. They listed the days’ income from cash and credit cards; changes in

petty cash; cash expenditures; and bank deposits. Mr. Park testified that he invariably faxed the daily reports to Mr. Shin the day after the date to which they related. He also collected receipts for expenses incurred in running the motel, and sent them to Mr. Shin monthly. If an invoice for a hotel expense called for immediate attention, he would fax it for Mr. Shin’s attention. [ 23 ] On some occasions, the reports included notes to Mr. Shin about expenditures or other matters. Several of those reports are relevant to the issues identified as breaches of the employment contract by the defendants.

First, the defendants say that on June 15, 2010, Mr. Park asked for mid-year incentives, “contrary to the terms of the employment contract”. The June 15, 2010 daily report contained the following note: *Note: as you may well (sic) aware, all of my family members are trying hard to make it from early morning to around mid-night, everyday [sic]. Mid-year incentives in an acceptable level would be appreciated. [ 24 ] The employment contract did not provide for incentives. However, Mr. Park testified that he thought it was appropriate to ask.

He noted that he and his wife were working 800 to 900 hours per month, for an effective hourly rate of approximately $5.00 per hour. Further, he said that Mr. Shin had paid him a $3,000.00 bonus in December 2009. Mr. Shin initially denied that he had done so. He claimed that he only paid bonuses to his managers annually, based on company and individual performance and other factors, at the company’s year-end. Faced with his bank records which confirmed that 10114 had paid $1,500.00 to both Mr. Shin and Ms.

Jang in December 2009, he recalled that he gave his motel managers Christmas bonuses in varying amounts, and might have done so in this case. [ 25 ] Again, I accept Mr. Park’s evidence on this point. Mr. Shin was visibly uncomfortable when confronted with the financial records. I concluded that he knew he had given misleading evidence, but persisted in the attempt to avoid acknowledging that he had paid the December bonus. I note that he also admitted in his examination for discovery (Q. 152-153, Transcript, vol 1, November 9, 2011) that he paid this bonus in accordance with his normal practice. [ 26 ] Mr.

Shin called Mr. Park on June 16 to discuss the request for a bonus. Mr. Shin said he was very upset by the request. After speaking to Mr. Park, Mr. Shin nonetheless sent him a $3,000.00 cheque. It was his evidence that he did so because Mr. Park threatened to quit, and that he decided to “injure himself” to avoid that result. I accept Mr. Park’s evidence that he made no such threat. However, Mr. Park concluded that Mr. Shin was not happy with his request, and was concerned that it might prejudice his chance to become an investor in the motel.

He decided to humble himself in an attempt to avoid that result, and promptly returned the cheque under cover of a letter of apology. [ 27 ] Second, the statement of defence says that on September 10, 2010, Mr. Park disclosed that he had appropriated to his own use $420.00 paid to the defendants by the Pattison Group. That payment was the advertising revenue that was discussed at the August 10 meeting. Mr. Park confirmed that Pattison paid $210.00 per month to keep a sign on the property, and that he took that revenue and so reported to Mr. Shin.

The first such report was not in September 2010, but in the daily report for May 13, 2010 (Exhibit P-1, Tab 8), which contained the following entry in the field for “Cash Expenditure”: *item incl $1478.07 (1470+8.07) deduction from ad sign and canada post [sic] collections as a manager’s miscellaneous income as agreed (emphasis in original) [ 28 ] The $1,470.00 referred to in this report was a single cheque Mr. Park received from Pattison for the seven month period from October 2009 to April 2010. Mr. Park testified that Mr.

Shin called on May 15 to ask him about this entry, that he explained it was part of the additional income Mr. Shin had referred to at the August 10 meeting, and that Mr. Shin understood and raised no objection. Indeed, Mr. Shin told Mr. Park in the course of that call that he could remain at the Yorke Inn until his son – who was then in grade 9 – finished high school. [ 29 ] Mr. Park confirmed that he took the advertising revenue every month until he was terminated. His reports included the September 10, 2010 report referred to in the statement of defence.

That report (Exhibit P-1, Tab 13) states as follows in the field for “Cash Expenditure”: *item incl heaters, manager’s miscellaneous income from ad ($420) (emphasis in original) [ 30 ] Mr. Park testified that Mr. Shin did not complain when he took the $420.00 in September, as they had discussed the issue in May. Mr. Shin denies that discussion took place. He says that two or three months after Mr. Park began working, he told Mr. Shin that the advertising revenue was his. Mr. Shin claimed that Mr. Park repeatedly insisted that was so. Mr.

Shin testified that he was “speechless”, and that he “endured” as he had no choice but to either do so or find a new manager. [ 31 ] I did not believe Mr. Shin’s evidence on this issue, and accept that of Mr. Park. Mr. Park received $210.00 per month until September 2010, without objection by Mr. Shin, and in accordance with their discussion at the August 10 meeting. [ 32 ] Third, the defendants allege that Mr. Park breached the employment contract by failing to advise Mr. Shin until August 10, 2010 that the heater boiler was damaged in a July 1, 2010 flood. Mr.

Shin claimed that as a result, 10114’s order for a replacement was far down the suppliers’ queue, and that the boiler was not replaced until November 21, 2010. The defendants paid for 20 individual heaters purchased as a stopgap measure, and counterclaim for that amount. [ 33 ] Mr. Park told a very different story, which I accept. Mr. Park testified that both the water heater and the heater boiler were damaged in the flood. He said Mr. Shin knew that from the outset, as he was in Yorkton that day, and that they spoke many times about the issue. The water heater was dealt with first, as guests needed showers.

That issue, along with the insurance claim that resulted from the flood, is discussed in the daily report for July 8 (Exhibit P-2). The July 9 daily report confirms that the water heater was done on July 9. [ 34 ] The heater boiler was less urgent, as it was summer. It was also a bigger job, and Mr. Shin was more concerned with saving money. Mr. Shin instructed Mr. Park to get estimates to replace the heater boiler, and undertook to seek estimates in Vancouver. Mr. Park sought estimates from more than one potential supplier. A local supplier, Yorkton Plumbing, provided a written estimate of

$31,137.75 on July 21, 2010. [ 35 ] Mr. Park communicated at least daily with Mr. Shin, and was very attentive to his duties. He did not delay three weeks before bringing the July 21 estimate to Mr. Shin’s attention. He did so promptly. Mr. Shin was not pleased, as prices in Vancouver were substantially lower. He instructed Mr. Park to find a supplier who would do the work for $15,000.00. That unrealistic request cost more time. In the end, Mr. Shin simply failed to authorize the purchase from Yorkton Plumbing until the end of August. He also failed to immediately pay the $15,000.00 deposit.

That fact is referred to in the August 31 daily report (Exhibit P-2), in which Mr. Park requested that Mr. Shin “pls arrange it asap”. The fault for the delays lay with Mr. Shin. [ 36 ] As the temperatures dropped in the fall, guests began to complain. Mr. Park was obliged to purchase portable electric heaters as a stopgap measure. He reported that purchase to Mr.

Shin in the usual course in the September 10 daily report (Exhibit P-2, Tab 13). [ 37 ] Fourth, the defendants pled that on September 21, 2010 they discovered from a daily report that the plaintiffs had made an unauthorized purchase of three flat screen televisions for $1,859.64, one or more of which was for their personal use. They counterclaim for that amount. [ 38 ] The issue of televisions was first raised in the daily report for February 16, 2010. Mr. Park explained that there were televisions in all of the rooms, but that he and Mr. Shin had discussed upgrading. Mr.

Shin did not deny that those discussions occurred. The daily report for February 16, 2010 (Exhibit P-1, Tab 32) contained the following note: 2. We may need 30 new tvs other than 25 to cover 3 double kitchnets (sic), 1 office and 1 spare [ 39 ] Following these discussions, Mr. Shin purchased 25 38-inch television sets for the guest rooms, but did not purchase additional televisions for the double kitchenette units, or a spare to be placed in the manager’s suite which could be used in the event a television failed. However, Mr. Park testified that in August, Mr.

Shin came to Yorkton with a developer, that he and Mr. Park discussed the issue, and that Mr. Shin agreed that those additional televisions should be purchased. Mr. Park made that purchase in September, believing he was authorized to do so. He reported an expenditure of $1,859.64 for “item incl tvs, etc” in the September 22, 2010 daily report. [ 40 ] Mr. Shin was unhappy that Mr. Park bought the televisions directly, and that the “spare” he purchased for the manager’s unit was larger than the others. Mr. Shin could have gotten a better price. He called Mr.

Park September 23 to express his displeasure [September 23 call]. However, he had agreed that these televisions should be purchased, and did not tell Mr. Park to return them. I did not accept Mr. Shin’s evidence that by making this purchase, Mr. Park breached a condition of his employment that he seek specific approval for any daily expenditure in excess of $500.00. 3. Termination of Employment [ 41 ] The parties agree that the September 23 call is the key to the liability issue. Mr. Shin testified that the September 23 call resulted in Mr. Park’s termination. It was his evidence that when he questioned Mr.

Park’s purchase of the televisions, Mr. Park threatened to kill anyone who questioned him with a gun, and hung up. Mr. Shin said that he immediately called back, and asked him what he had said. It was his evidence that Mr. Park asked why Mr. Shin would not agree to joint ownership, and said he would kill Mr. Shin when he came to Yorkton. [ 42 ] Mr. Shin testified that he told Mr. Park he was fired, and, immediately after the call, went to his lawyer’s office in Vancouver. He said that he proceeded as his lawyer advised, and was not advised to report the threat to the police.

The Vancouver lawyer retained Osman & Company in Moosomin. By a letter dated September 29, 2010, Osman & Company advised Mr. Park that Mr. Shin “…has requested that we advise you the services of you and your spouse will be no longer required effective October 31, 2010.” It did not explain the reasons for the termination. That letter also stated that Mr. Shin would pay Mr. Park one month salary after the termination, “…which is in our opinion more than adequate to satisfy any obligation he may have to provide notice of this termination”. Mr.

Park was instructed to remove his belongings from the manager suite by October 31. [ 43 ] Mr. Shin’s wife gave evidence that she heard Mr. Shin’s part of the first telephone call on September 23. She said he became upset, and the call ended suddenly. She said the second call was by speakerphone, and that she heard both sides of that conversation. She testified that Mr. Park asked Mr. Shin why he did not want him to be an investment partner, and said if Mr. Shin came to Yorkton, he would kill him. [ 44 ] Mr. Park denied that he made such a threat. He said there was only one call on September 23, not two.

That was inconsistent with his discovery evidence. He said he did not know why he had been fired when he received the letter from Osman & Company. He also claimed he did not get upset and raise his voice on the call. [ 45 ] I did not believe Mr. Park was calm on the September 23 call. Here, as in his testimony about his October 2 letter to Mr. Shin, he downplayed his emotions. The partnership issue had been festering since November 2009, when Mr. Shin came to Regina and told Mr. Park and his wife that they could not buy into the business. Mr. Shin offered three reasons for his decision.

He said that the motel was too small for a partner, that he had no previous experience in the business decision, and that his wife did not want him to take a partner. Mr. Park and his wife, who had moved to Yorkton in the expectation they could buy shares in 10114, were very disappointed. [ 46 ] Although Mr. Park continued to manage the motel, he did not let go of his dream of investing. On March 21, 2010, Mr. Park wrote to Mr. Shin (Exhibit P-1, Tab 3), noting that six months had passed “since we came to Yorkton with whole family members with the idea of joint investor in this motel”.

He then wrote as follows: As you promised in Vancouver, I am ready to invest 25% of the whole investment into this motel….Please advise me in details in arranging the investment from me.

[ 47 ] Mr. Shin did not deny he had made a promise in Vancouver. By letter dated March 25 (Exhibit P-2, Tab 6), he responded as follows: As I mentioned you (sic) last time, I do not want to make a joint venture business with you. Please work as a manager. [ 48 ] There was no further discussion of the partnership issue until the September 23 call, when it was raised by Mr. Park. I reached that conclusion on the basis of Mr. Shin’s evidence to that effect, and Mr. Park’s letters to Mr. Shin of October 2 (Exhibit P-1, Tab 41) and October 9 (Exhibit P-1, Tab 14).

The October 2 letter, which was written four days after the termination letter, did not ask why Mr. Park was terminated. It related solely to the partnership issue, in the manner of an ongoing discussion which began the last time they spoke, on September 23. It described Mr. Park’s version of the parties’ dealings with that issue at length. It said that Mr. Shin lied to and betrayed Mr. Park and his family, and that they had been misled into moving to Yorkton by a person with “an evil mind and dangerous”. It accused Mr. Shin of conspiring with Yang.

The October 9 letter reiterated his request for partnership, or that Mr. Shin sell him the motel at a reasonable price. [ 49 ] It is clear that by September 2010 Mr. Park was very upset by Mr. Shin’s refusal to honour his promise of a partnership. I concluded that he communicated his disappointment to Mr. Shin in the September 23 call. As is noted above, I found that Mr. Park was generally credible, reliable and forthright. His evidence was generally internally consistent, consistent with events, and plausible. This was an exception.

I concluded it was a result of his honest belief that he was a blameless victim who spoke only the truth throughout. [ 50 ] However, Mr. Park did not threaten to kill Mr. Shin. Quite apart from his direct and believable denial that he did so, there is compelling evidence that he was a dutiful and deferential employee. He was prepared to carry on – and indeed, to be humiliated – despite what he considered to be a fundamental betrayal by Mr. Shin. He was prepared to partner with Mr. Shin even after being fired.

He felt duty bound to do so for the sake of his family, as he felt he could not leave Yorkton until his children graduated high school. He refused to leave the Yorke Inn, clinging to Mr. Shin’s promise. He stayed in Yorkton after he was evicted, and then in Canora, thereby carrying out his promise to his family. [ 51 ] It is for these reasons that Mr. Park humbled himself, and bluntly expressed his position about the partnership issue to Mr. Shin only on October 2, after he had been fired, and had no reason to believe that staying quiet would work.

Receiving no satisfaction, he commenced this action on November 19, 2010. On December 4, he wrote again to Mr. Shin, accusing him of being a swindler and – gloves completely off – stating that Mr. Shin had “disguised himself with human skin not as good as a beast, so he deserved divine retribution up to his third generation consecutively”. On January 1, 2011, he wrote again to Yang (Exhibit D-2), accusing him of making false accusations, and predicting dire consequences if Yang did not apologize. [ 52 ] While Mr. Park was not entirely forthright about the September 23 call, I conclude that Mr. Shin’s and Ms.

Sim’s evidence of death threats – like Mr. Shin’s evidence that Mr. Park threatened to quit if he did not get a bonus – was fabricated in response to this action. Ms. Sim professed to have no involvement at all in Mr. Shin’s business. That evidence was not consistent with their evidence that Mr. Shin had her listen to this, of all business calls, and that he then dealt with the termination entirely on his own. There was no reason for her to listen, as she would play no role. [ 53 ] Further, Mr. Shin’s actions after the September 23 call support Mr. Park’s denial that he made a threat.

The termination letter did not refer to a threat of any kind. It gave Mr. Park working notice. Mr. Shin did not report the threat to the police, despite his claim that he got legal advice in a manner of minutes. He claimed he reported to the police in December. Even if he did, the timing of that report would support the conclusion that he fabricated this story in response to the statement of claim, which was filed November 19. [ 54 ] Mr. Park did not vacate the manager’s suite on October 31. It was his view that his termination and the eviction were unlawful.

The defendants applied for and obtained a notice of possession pursuant to The Residential Tenancies Act, 2006 , SS 2006, c R- 22.0001. The plaintiffs were unsuccessful in their appeal of that decision and were forced to leave the Yorke Inn in early February 2011. They lived in a rented apartment in Yorkton until June, when they moved to the Gateway Motel in Canora. They paid approximately $1,000.00 per month for rent and utilities, for five months. [ 55 ] Mr. Park and his daughter also gave evidence of an incident involving three employees of another company owned by Mr. Shin who were staying at the Yorke Inn.

These men – led by a Mr. Hwang who Mr. Park described as a “bully man” – acted in an intimidating manner toward the Parks. On December 10, 2010 – shortly after the December 4 letter and days before the statement of defence was signed – the three men entered the manager’s suite without permission. They pushed Mr. Park to the floor, and threatened to beat him to death in front of his wife and children. The Parks called the police, and the incident was defused. There was evidence that Ms. Jang sought medical treatment, and was stressed and depressed by these events.

Shortly after, the door to the manager’s suite, which provided outside access through the office, was nailed shut by an unidentified person. [ 56 ] Mr. Shin claimed that he did not know of the incident involving his three employees until the date of trial. I did not believe that evidence. He acknowledged they were employed by his company, and were on company business. They had no relationship with Mr. Park or his family. The only reasonable explanation for their conduct was that they sought to intimidate the plaintiffs to convince them to leave the manager’s suite and give up the fight against Mr. Shin.

I conclude that they were instructed by the defendants to carry out a campaign of intimidation. 4. Gateway Motel and Plaintiffs’ Incomes [ 57 ] Following his termination, Mr. Park sought employment in the motel business. He also wanted to replace the opportunity to be an owner that he was denied at the Yorke Inn. In June 2011, 101180169 Saskatchewan Ltd. [10118], a company formed by Mr. Park and his wife for this purpose, purchased the Gateway Motel. The $320,000.00 purchase price was paid with the proceeds of a $170,000.00 mortgage, and a $150,000.00 shareholder’s loan from Mr. Shin and his wife.

The cost of incorporation was $1,076.13, and legal fees and disbursements were $3,052.90.

[ 58 ] The Gateway was also a 24 room motel. The Park family lived in the owner’s accommodation, and, apart from a housekeeper that worked part-time for a few months, did all of the work necessary to operate the business. Both children worked daily after school and full-time during school breaks in the summer and at Christmas. The Gateway made money from the outset. [ 59 ] The plaintiffs claim damages for the amount they would have earned during the term remaining under the employment contract at the date of termination, less the additional month paid by the defendants, or 21 months and 20 days [notice period].

They also claim $5,000.00 for rent and utility costs incurred as a result of the loss of the manager’s suite. [ 60 ] There was evidence as to the income earned by Mr. Park, his wife and their children both before and after his termination. Initially, 10114 paid the $4,500.00 per month salary to Mr. Park and his wife. In 2010, it was split between the four members of the Park family. The salaries paid by the Gateway Motel were also split four ways, starting in 2012.

In the result, the Park plaintiffs and their children had the following incomes in 2010, and in the notice period (see Exhibit P-1, Tab 24, with 2012 incomes adjusted pro-rata based to take account only of the notice period): Ha Hyung Young Ja Soo Jin Hee Soo Park Jang Park Park 2010 15,400.00 14,100.00 11,130.00 11,750.00 2011 12,246.00 7,500.00 0 2,980.00 2012 13,080.00 13,080.00 10,923.00 11,542.00 [ 61 ] Plaintiffs’ counsel agreed that the amounts paid in 2010 included the approximately $210.00 per month in advertising revenue.

It did not include the minor amounts earned from recycling and other incidental income. [ 62 ] Mr. Kwalk, Mr. Shin’s accountant, was qualified as an expert for the purpose of comparing the income the plaintiffs would have earned managing the Yorke Inn during the notice period, to the income they earned from the Gateway. Mr. Kwalk calculated that the plaintiffs would have earned $103,189.00 (Exhibit D-1), based on the T4 income of all family members for 2010. [ 63 ] He also calculated what the plaintiffs and their children actually earned during the notice period.

That calculation was complicated by the fact that the Gateway Motel was owned by 10118, the plaintiffs’ company, which earned net income and had retained earnings at the end of the two relevant fiscal periods. Further, those two fiscal periods did not coincide with the notice period, ending on February 28, 2012 and February 28, 2013. In an attempt to compare “apples to apples”, Mr. Kwalk counted both the salaries paid to the plaintiffs and their children, and all the net pre-tax income of the company, as personal income. He also assumed that the company’s income was earned equally throughout the fiscal year.

Based on those assumptions, he concluded that the plaintiffs earned $119,717.00 during the notice period. [ 64 ] The plaintiffs do not agree with Mr. Kwalk’s approach. It is their view that the children’s incomes be excluded from this calculation. They note that the evidence that the children worked for what they were paid, and saved costs which 10118 would have otherwise incurred for staff. Defendants’ counsel conceded that an amount reasonably attributable to the value of the children’s work should be excluded. The plaintiffs also argued that none of 10118’s earnings should be taken into account. C. ANALYSIS 1.

Cause [ 65 ] The employment contract provided that the defendants were entitled to terminate the plaintiffs on two months’ notice, provided the dismissal was “not without warrant”. The defendants submit that they were entitled to terminate the plaintiffs pursuant to that provision. They gave one month working notice, and paid an additional month in lieu of notice. They accordingly argue that they fully satisfied their contractual obligation. [ 66 ] The first issue, accordingly, is the meaning of the phrase “not without warrant” in s. 10 of the employment contract.

As Rothstein J. noted in Sattva Capital Corp . v Creston Moly Corp. , 2014 SCC 53 , at para 50 , [2014] 2 SCR 633 , “contractual

interpretation…is an exercise in which the principles of contractual

interpretation are applied to the words of the written contract, considered in light of the factual matrix”. More specifically: 47 …the

interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine "the intent of the parties and the scope of their understanding" ( Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada , 2006 SCC 21 , [2006] 1 S.C.R. 744 (S.C.C.) , at para. 27 per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Minister of Transportation & Highways) , 2010 SCC 4 , [2010] 1 S.C.R. 69 (S.C.C.) , at paras. 64-65 per Cromwell J.).

To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. … 48 The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement (see Geoffrey L. Moore Realty Inc. v. Manitoba Motor League , 2003 MBCA 71 , 173 Man. R. (2d) 300 (Man.

C.A.) , at para. 15 , per Hamilton J.A.; see also Hall , at p. 22; and McCamus , at pp. 749-50). … [ 67 ] Mr. Park submitted that “warrant” should be interpreted as a reference to an arrest warrant. However, that ordinary and grammatical meaning of “without warrant” in this context is not a warrant or other authorization issued by a court or other official. It is “without justification”, or “without grounds”.

That meaning is consistent with the purpose of the contract, being the provision of the specified personal services in a reasonably competent manner, in consideration of the payment of salary and other benefits. The

plaintiffs’

interpretation, on the other hand, would mean that the plaintiffs could be incompetent and insubordinate with impunity, aslong as they were not arrested on a warrant. Interpreted in that way, the clause would not serve its purpose in the context of the contractas a whole. [68] In my opinion, “without warrant” means without justification or without grounds. This provision is accordingly properlyinterpreted as an awkward expression of the term “without cause”, by a draftsmen who readily acknowledged he had no experience withcontracts of this kind, and found a precedent through a Google search.

That being so, the defendants had the onus to prove just cause. [69] The parties do not disagree about the law relating to cause. The leading case is McKinley v BC Tel, 2001 SCC 38,[2001] 2 SCR 161. The court there held (at para. 48) that the issue of whether employee misconduct constitutes cause calls for acontextual analysis, even if the misconduct is dishonesty. As Iacobucci J. put the matter: 48…the test is whether the employee's dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed indifferent ways.

One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of theemployment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with theemployee's obligations to his or her employer. [70] The concept underlying this approach to the issue of cause is proportionality, that being to strike the appropriatebalance between the “severity of an employee’s misconduct and the sanction imposed” (para. 53).

This contextual approach appliesequally where the employee misconduct is something other than dishonesty. [71] Here, the defendants said the plaintiffs breached the employment contract by pressing for a partnership, demanding abonus, taking the advertising revenue, failing to report the damage to the heater boiler, buying portable heaters, and purchasing the threeTV’s. They also alleged that very high turnover in cleaning staff resulted from incompetence, that the plaintiff kept too much petty cashon hand, and that furniture purchased by Mr. Shin was damaged in storage.

Counsel for the defendants conceded, however, that they didnot have just cause, unless Mr. Park made the threat to kill Mr. Shin. He also conceded that requests for a partnership interest were not abreach of the employment contract, at least absent a warning from Mr. Shin that Mr. Park must stop or face the consequences. I agreewith those concessions, and would have so concluded regardless. [72] For the reasons explained above, I accepted Mr. Park’s version of events in relation to the miscellaneous breachesalleged by the defendants, including turnover in the cleaning staff. At most, Mr.

Park may have overstepped by purchasing a larger TVfor the owners’ suite. However, that breach – if there was such a breach – was insignificant, and fell far short of cause for termination. Ialso found that Mr. Park did not threaten Mr. Shin’s life. In the result, there was no just cause for termination, and the plaintiffs werewrongfully dismissed. 2. Damages [73] The employment contract was a fixed term contract. As such, the plaintiffs are – leaving aside mitigation – entitled todamages equal to what they would have received during the 21.67 months remaining when they were terminated. Mr.

Kwalk concludedthat amount was $103,189.00. Those calculations were based on reasonable assumptions, and on what the plaintiffs were paid when theywere employed. That total results in average monthly earnings consistent with the $4,500.00 per month, $210.00 per month advertisingrevenue, and small amount from incidental earnings provided for by the employment contract. [74] That leaves the issue of mitigation. The defendants – relying on Graf v Saskatoon Soccer Centre Inc., 2004 SKQB 282,250 Sask R 161 – submitted that a dismissed employee has a duty to mitigate, even if employed pursuant to a fixed term contract.

Thereis ample authority for the proposition. They submitted that there are some exceptions to that rule, based on waiver or the terms of theemployment contract (Clelland v eCRM Networks Inc., 2006 NSSC 337, 249 NSR (2d) 212), none of which apply here.

The plaintiffs, onthe other hand, submitted that I should follow Howard v Benson Group Inc., 2016 ONCA 256, 129 OR (3d) 677, where the courtdecided the employee is entitled to be paid to the end of his fixed term contract and had no duty to mitigate. [75] The question of whether starting your own business constitutes reasonable mitigation turns on the facts: see, forexample, Penteliuk v CIBC World Markets, Inc., 2014 ONSC 2105, at para 294 and Shiels v Saskatchewan Government Insurance(1988), (SK KB), 67 Sask R 220 (Sask QB). It was reasonable that Mr.

Park sought to remain in or near Yorkton, forboth family and business reasons. It was also reasonable, given his limited employment prospects and knowledge of this business in theYorkton market, that he pursued the strategy he did. The onus lies on the defendant to prove that the plaintiff could reasonably haveavoided further losses: Michaels v Red Deer College, (SCC), [1976] 2 SCR 324. The defendants did not meet thatburden. [76] In my opinion, Mr. Park’s decision to purchase the Gateway Motel was a reasonable and, as it happened, a successfulmitigation strategy.

If there was a duty to mitigate, it was discharged. In these circumstances, I need not decide whether Mr. Park hadsuch a duty. That is so because the defendant gets the benefit of mitigation regardless of the existence of a duty to mitigate. That issuewas addressed in Neilson v Vancouver Hockey Club Ltd, (BC CA), [1988] 4 WWR 410 (WL) (BCCA), which dealtwith the termination of a hockey coach on a fixed term contract. As Seaton J.A. there noted: 10 …The cases suggest that the plaintiff had a duty to mitigate but I do not have to resolve that question.

The distinction between theduty to mitigate and the result of mitigation is explained in McGregor on Damages (London: Sweet & Maxwell Limited, 14th ed., 1980),c. 7. That

chapter starts (in para. 209) with three rules conveniently put shortly as (1) "the plaintiff cannot recover for avoidable loss", (2)"the plaintiff can recover for loss incurred in reasonable attempts to avoid loss", and (3) "the plaintiff cannot recover for avoided loss". 11 It is the third of those rules that applies to this case. It was stated more fully (at para. 209):

(3) The third rule is that, where the plaintiff does take steps to mitigate the loss to him consequent upon the defendant's wrong and thesesteps are successful, the defendant is entitled to the benefit accruing from the plaintiff's action and is liable only for the loss as lessened;this is so even though the plaintiff would not have been debarred under the first rule from recovering the whole loss, which would have

accrued in the absence of his successful mitigating steps, by reason of these steps not being ones which were required of him under thefirst rule. … 14 On this question I conclude that whether or not the plaintiff was bound to mitigate is irrelevant. He cannot recover for avoided loss inany case. [77] In the result, the amount Mr. Neilson earned working for two other hockey clubs was deducted from the amount hewould have earned if he had not been terminated. [78] What, then, was the extent to which the plaintiffs mitigated their loss? That raises two issues. First, should the amountspaid by 10118 to Mr.

Park’s children be included in the calculation? I agree with counsel that the wages they were paid for necessarywork actually done, at a reasonable hourly rate, should not be counted as income earned by the plaintiffs. This was not income splitting.Based on evidence as to the children’s hours of work, the total amount paid by 10118 to the children in 2011 and 2012 was a fair wage. Itsaved an equivalent amount for salaries that 10118 would have otherwise incurred.

No amount should be included in the plaintiff’sincome on account of these salaries. [79] Second, 10118 earned net income that was not paid as salary or dividends, and has retained earnings. Should thoseretained earnings be counted as mitigation? That is well-trodden ground. In Larsen v Saskatchewan Transportation Co. (1993), (SK CA), 113 Sask R 185 (Sask CA), for example, the plaintiff, was terminated as President and CEO of the defendantSaskatchewan Transportation Company.

He promptly landed a contract to provide accounting and other financial services, which hechose to deliver through a company he and his wife incorporated for that purpose. The company paid his wife a small salary, but nothingto Mr. Larsen. It earned approximately $1,200.00 per month in net income, which was left to accumulate in the company. [80] Mr. Larsen argued that he should be attributed no income. He noted that none had been paid, that there was noguarantee it would continue to earn a profit, and that this was a fledgling company that needed working capital.

The court found that theissue of whether income should be attributed turns on the facts, and that the entire amount should be so attributed. [81] The same approach is illustrated by Richards v 559878 Saskatchewan Ltd, 2007 SKQB 186, [2007] 11 WWR 708. Inthat case, the plaintiff was constructively dismissed from his position as a senior executive and board member of the defendant company.After an initial and relatively brief search for comparable employment, he invested $100,679.00 in a start-up business.

During the noticeperiod, he withdrew dividends which, when grossed up to account for the lower tax rate on dividends, totalled $88,440.00. He was notpaid a salary. The company also increased its retained earnings by $51,790.00. In the result, the court deducted both the grossed updividends and the entire amount of the retained earnings as mitigation, despite Mr. Richard’s substantial investment. [82] In PCL Construction Management Inc. v Holmes (1994), 1994 ABCA 358 , 157 AR 306 QL) (ABCA), thedefendant project manager found work similar to that he performed at PCL.

The fees were initially paid to a sole proprietorship, and thento a company owned by Mr. Holmes and his wife. The court summarized its view of the correct approach to the question of whetherincome earned by the company should be attributed to the plaintiff, as follows: 26 The problem of attributing to the dismissed employee, income earned by a business or corporation established by him after hisdismissal, has been considered in several cases.

The general rule applied by the courts appears to be that set out by McDermid J.A.:Keeping in mind the duty to mitigate, "What was the real loss?" Has the employee concealed income by retaining it in a company ratherthan paying himself a salary? The results vary considerably. We have considered Lynch v. J.D. Mack Ltd. (1985), (NSCA), 68 N.S.R. (2d) 6 (C.A.), Roscoe v. McGavin Foods Ltd. (1983), 2 C.C.E.L. 287 (B.C.S.C.), Foster v. M.T.I. Canada Ltd. (1992),42 C.C.E.L. 1 (Ont. C.A.), and Larsen v. Saskatchewan Transportation Co. (1993), (SK CA), 49 C.C.E.L. 165 (Sask.C.A.).

Often the employee's only recourse was to incorporate and start his own business, similar employment being unavailable. In somecases, no attribution and no deduction was made, usually because the company was in debt because of major start up costs or the need toaccumulate some working capital to keep the business alive. No amount was deducted because, in such circumstances, business realitysuggested that the company would not pay a substantial salary to its shareholder.

In some, all or substantial portions of the earnings of thecorporation were taken into account in determining the real loss. [83] In the result, the court concluded that the company’s income should be attributed to Mr. Holmes. It emphasized that thedecision to incorporate was on the advice of an accountant, for tax purposes; that the business was home based, and required littleinvestment; that all of the income was the fee for project management; and that there were no employees other than Mr. Holmes and hiswife, who provided limited assistance with office duties. The court took no issue with the fact that Mr.

Holmes chose to incorporate, butcommented as follows: 30 …The company is entitled to accumulate capital, but not at the expense of the former employer. In the circumstances of this case, theincome, less reasonable expenses incurred to earn the income, must be taken into account in determining Holmes' real loss. [84] The decision as to whether to include some or all of the income of a corporation as income accordingly turns on thefacts.

The facts may call for the inclusion of all, none or some of the profits: Foster v MTI Canada Ltd. (1992), 42 CCEL 1 (ONCA) atpara 6 and Dauphinee v Major Foods Limited (1983), NSR (2d) 517 (NSSC) at paras 64-65.

The relevant facts could include, forexample, the amount invested; the amount paid to the former employee as salary or dividends; whether the business has characteristicsthat demonstrate it is more than employment delivered through a corporation, such as separate premises, employees, sales, revenue andinventory; whether the company needs to retain or build working capital; whether the company has substantial debt, including debts thatare due or accruing due; and whether the business is stable. [85] The Gateway Motel is a family business.

The plaintiffs and their children lived in in the manager’s suite, and didvirtually all of the work necessary to operate and maintain the motel. The plaintiffs were paid salaries which were far less than fairmarket value. However, the Gateway is certainly not a home business, and 10118 is not simply a vehicle used to reduce taxes on incomeearned for the provision of personal services by the plaintiffs. There is evidence that the future of the business was unclear, to the point

that the company had not yet rebuilt after a 2014 fire destroyed 10 of the 24 rooms. As counsel for the plaintiffs emphasized, the plaintiffs purchased the Gateway Motel with $150,000.00 of their own funds, and $170,000.00 borrowed from a financial institution that they chose to quickly repay. They also guaranteed a portion of that debt. [ 86 ] In these circumstances, it would not be appropriate to attribute the entire amount of the retained earnings to the plaintiffs.

The plaintiffs had good reason to pay themselves limited salaries, and to retain significant earnings, given the very significant corporate debt and the uncertainties relating to a start-up business in a weakening economy. In my view, the correct balance can be struck by attributing half the pre-tax retained earnings, or an additional $24,180.00, as income earned by the plaintiffs during the mitigation period. [ 87 ] The plaintiffs also argued that I should calculate their loss on the basis that their return from the Gateway Motel should be treated as a return on investment, rather than employment income.

Counsel noted that Mr. Park said he thought he should make between 10% and 15% on his money. With respect, I do not agree. The plaintiffs earned a handsome return on their investment in the Gateway. However, and as Mr. Park said, that was so because they were not afraid of hard work. There was no evidence that they gave up other investment income in order to buy the Gateway, or that the Gateway lost value.

The interest on the loan was paid by 10118, and is accordingly already accounted for in the income calculation. [ 88 ] In the result, the plaintiffs’ loss was as follows: Compensation lost during notice period 103,189.00 Paid for replacement accommodations 5,000.00 Subtotal 108,189.00 Salaries paid by 10118 45,806.00 Retained earnings added 24,182.00 70,988.00 37,201.00 Accommodation costs 5,000.00 42,201.00 3. Punitive Damages [ 89 ] The law relating to punitive damages was comprehensively reviewed in Whiten v Pilot Insurance Co. , 2002 SCC 18 , [2002] 1 SCR 595 [ Whiten ] .

Binnie J. there confirmed (at para 81) that such damages may be awarded in the absence of an independent tort, provide that there is an actionable wrong. He also described a framework for awarding such damages, including the following principles: 94 …

(1) Punitive damages are very much the exception rather than the rule, (2) imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.

(3) Where they are awarded, punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant, …

(6) Their purpose is not to compensate the plaintiff, but (7) to give a defendant his or her just desert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community's collective condemnation (denunciation) of what has happened.

(8) Punitive damages are awarded only where compensatory damages, which to some extent are punitive, are insufficient to accomplish these objectives, and (9) they are given in an amount that is no greater than necessary to rationally accomplish their purpose. … [ 90 ] The decision in MacDonald-Ross v Connect North America Corp. , 2010 NBQB 250 , 364 NBR (2d) 222 [ MacDonald- Ross ] is instructive. In that case, the defendant fabricated and published unfounded allegations about the plaintiff – including reporting theft to the police – after receiving her wrongful dismissal claim.

Morrison J. held as follows: 91….I find that the defendants' conduct in concocting cause after-the-fact based on unfounded allegations of misappropriation of funds and knowingly communicating these unfounded allegations to the police is reprehensible and egregious. This is, in my view, one of the rare cases in which the defendant's conduct is so egregious that punitive damages are required for the purposes of deterrence, denunciation and retribution. Of these purposes, deterrence is of paramount importance in this case.

Employers must know that in dealing with employees at a time when they are most vulnerable they will not escape the consequences of brutish and reprehensible conduct. [ 91 ] In the result, he awarded $50,000.00 in punitive damages. [ 92 ] Kelly v Norsemont Mining Inc ., 2013 BCSC 147 [ Kelly ] dealt with similar facts. The employer deliberately alleged fraud and incompetence against Mr. Kelly for a period of seven years. As Fenlon J. there noted: 114 The conduct complained of must be an actionable wrong.

The actionable wrong does not need to be an independent tort: it can be found in a breach of a distinct and separate contractual provision, or in another duty such as a fiduciary obligation: Whiten v. Pilot Insurance Co. , 2002 SCC 18 (S.C.C.) at para. 82 , [2002] 1 S.C.R. 595 (S.C.C.) . The requirement of an actionable wrong may be

satisfied where the employer fails to meet his or her implied obligations of good faith and fair dealing in the manner of dismissal: Nishina v. Azuma Foods (Canada) Co. , 2010 BCSC 502 (B.C.

S.C.) at paras. 260-64 . 115 Examples of conduct justifying punitive damages include the employer knowingly fabricating allegations of serious misconduct or incompetence against an employee to support dismissal; the employer utilizing "hardball" tactics to intimidate the employee into withdrawing or settling his or her wrongful dismissal suit; or the employer implementing the dismissal in a manner designed to disparage the employee's capabilities or honesty in the eyes of other employees or future employers: Geoffrey England et al, Employment Law in Canada , 4th ed., (Markham, Ontario: LexisNexis Canada Inc.), ch. 16 at 138-39. [ 93 ] The court, following an analysis of the factors which inform the proportionality analysis (at paras. 131-145), awarded punitive damages of $100,000.00.

See also Morison v Ergo-Industrial Seating Systems Inc. , 2016 ONSC 6725 [ Morison ] and Huber v Way , 2014 ONSC 4426 . [ 94 ] I have found that the defendants were guilty of exactly the kind of reprehensible, hardball tactics which called for an award of punitive damages in MacDonald-Ross , Kelly and Morison . Faced with the plaintiffs’ claim and Mr. Park’s threats to publish the story of Mr. Shin’s conduct, they alleged incompetence, dishonesty, and serious insubordination, including death threats. Mr. Shin reported that fabricated story to the police.

He directed three men employed by another of his companies to attempt to intimidate the plaintiffs, resulting in the terrifying invasion of the Parks’ residence. This case is an example of the exception to the rule referred to by Binnie J., and calls for an award of damages that serves the goals of retribution, denunciation and deterrence. [ 95 ] I have reviewed the factors specified in Whiten that are relevant to proportionality. The defendants’ conduct was highly blameworthy. I have, however, also taken account Mr. Park’s extraordinary letters criticizing Mr. Shin’s conduct and threatening retribution.

Those letters, while they did not justify Mr. Shin’s action, fueled the fire. I am also mindful of the plaintiffs’ resilience, which enabled them to mitigate the loss that might otherwise have been caused to this economically vulnerable family. In the result, I award punitive damages of $12,500.00 to each of the plaintiffs. 4. Counterclaim [ 96 ] The defendants counterclaimed on various grounds. All but one of those claims are without merit. The exception is the claim for the return of $4,055.78 in petty cash. Mr.

Park acknowledged that he placed these funds – which are the property of the defendants – in his lawyer’s trust account. D. CONCLUSION [ 97 ] For these reasons, each of the plaintiffs shall have judgment in the amount of $33,600.00, and the defendants shall have judgment in the amount of $4,055.78. The defendants shall pay the plaintiffs the net amount of $63,145.22. [ 98 ] The plaintiffs are entitled to pre-judgment interest on the sum of $37,201.00, calculated from the date of the loss, but not on the amount awarded as punitive damages. [ 99 ] The plaintiffs shall have their costs, on Column 1 of the tariff. J.

B. A. BARRINGTON-FOOTE