Ingo Rampre Plaintiff v. Okanagan Halfway House Society, 2018 BCSC 992

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Rampre v. Okanagan Halfway House Society, 2018 BCSC 992 Date: 20180621 Docket: S113165 Registry: Kelowna Between: Ingo Rampre Plaintiff And Okanagan Halfway House Society Defendant Before: The Honourable Mr. Justice G.P. Weatherill Reasons for Judgment Counsel for the Plaintiff: S. Kelly Counsel for the Defendant: D. Brown Place and Date of Trial/Hearing: Kelowna, B.C. June 6, 7, 8, 2018 Place and Date of Judgment: Kelowna, B.C. June 21, 2018 Introduction [ 1 ] This is a wrongful dismissal action.

On November 8, 2016, the plaintiff sued the Okanagan Halfway House Society (“Society”) claiming he was constructively dismissed from its employ after some 23 years of service. He claims 20 - 24 months’ salary in lieu of notice, as well as aggravated damages. [ 2 ] On January 18, 2018, the Society filed a notice of application seeking

summary dismissal of the plaintiff’s claim (“Application”) on the basis that the plaintiff was not constructively dismissed but voluntarily resigned. In support of the Application, the Society filed affidavits of its executive director Mr. Robert Ens (“Mr. Ens”), its previous house manager Mr. Brian Laffan (“Mr. Laffan”) and current house manager Mr. John Webber (“Mr. Webber”) setting out their versions of the events resulting in the plaintiff’s departure from his job.

On May 25, 2018, the plaintiff filed an affidavit setting out his side of the story. [ 3 ] Because the affidavits raised credibility issues, the parties agreed that, during the Application, each affiant should be cross- examined on their affidavits. The cross-examinations took place before me. [ 4 ] The parties agree that I am able to find the facts necessary to decide the issues and that this matter is suitable to be resolved by way of

summary trial. The Parties [ 5 ] The plaintiff is presently 73 years of age and is not working. He commenced employment with the Society on July 15, 1993 and left their employ on May 9, 2016, after a two week vacation, claiming he had been constructively dismissed. Since then, he has not sought employment and considers himself retired. [ 6 ] The Society is a non-profit society operating three halfway houses in the Kelowna, B.C. area, providing monitoring and support services for reintegration of persons who have recently been released from prison. The Society relies on funding from the Government of Canada in order to operate.

Summary of Decision [ 7 ] For the reasons that follow, I find that the plaintiff was not constructively dismissed but voluntarily resigned. Accordingly, the Application is allowed and the plaintiff’s claim is dismissed with costs. Background [ 8 ] The plaintiff began his employment with the Society as a residential shift supervisor with increasing duties and responsibilities over the following 11 years. In 2004, he was promoted to full-time house manager. In January 2009, his job title was changed to “Supervisor” but his duties, hours and salary remained the same.

He continued in that capacity until his departure in May 2016. [ 9 ] In April 2009, the plaintiff began to prepare for retirement. He voluntarily reduced his hours to four days a week earning at first, $3,700 per month and later $3,800 per month. This arrangement continued until April 2012, when he began job sharing administrative and accounting duties with Mr. Webber and his salary was reduced to $3,325.00. This arrangement had the Society’s blessings.

He told the Society at that time that his ideal goal was to gradually move to working half-time in preparation for his retirement. [ 10 ] The plaintiff resumed full-time employment in March 2013. From that point forward, the plaintiff’s position with the Society was as afternoon shift-supervisor with additional administrative/accounting responsibilities, earning $4,450 per month. Shift-supervisors work on a rotating schedule, four days on and two days off. [ 11 ] The plaintiff was surprised to be called to a meeting by Mr. Ens on August 26, 2014, during which some concerns the Society had with him were discussed.

Those concerns included: i. being viewed as unmotivated and unapproachable by parole officers and staff; ii. failing to complete a required urinalysis test; iii. a reputation for sitting and watching television during afternoon shifts; and iv. a perceived inability to be creative on the afternoon shift. [ 12 ] Following that meeting the defendant changed the plaintiff’s duties, shift

schedule and work location and added administration/accounting duties as required. His salary did not change. Mr. Ens gave the plaintiff a letter (the “August 2014 Letter”) setting out the Society’s concerns and asked the plaintiff to sign it. The plaintiff wrote on the letter “my signature does not confirm or imply that I agree with these allegations. It merely confirms that I have read them.

I will be responding under separate cover.” [ 13 ] The plaintiff never did respond to the August 2014 Letter under separate cover. [ 14 ] Between 2008 and 2015, the Society was experiencing steadily worsening financial circumstances related to seven consecutive years of freezes or cuts from their federal government funding. For the fiscal year ending March 31, 2015, it had a deficit of $24,207. Mr. Ens and Mr. Laffan accepted reductions in their hours and pay decreases to help reduce that shortfall.

Other budgetary measures were examined including whether the Society had duplicitous administrative services. [ 15 ] On April 14, 2015 (when the plaintiff was 70 years of age), Mr. Ens called the plaintiff to a meeting to discuss his retirement plans, the financial health of the Society and future changes the Society thought it might be forced to make to the plaintiff’s employment contract because of the Society’s poor finances. The plaintiff told Mr. Ens that he intended to continue working full time until 2016 and then begin working part time. Mr. Ens indicated that a part time position would not work.

At the end of the meeting, Mr. Ens gave the plaintiff a letter that stated in part: The board of Directors has requested I discuss with you your retirement plans regarding your employment with the Okanagan Halfway House Society. We understand you will be turning 71 next March 2016, and due to the financial restraints on the Society the board will be exploring other financial options… In exploring further options the Society expressed concern why we would have two

(2) Administrators each earning $4,450 per month. Discussion centered on decreasing the Administration position to one (1) staff position which was immediately agreed upon. The discussion then centered on the time frame which could be effective April 1, 2015, or suggested between September 1, 2015 and March, 2016. The time frame would be decided based on the financial picture effective September 2015.

The board is concluding that you will be re-classified to a shift supervisor between September 1, 2015 and March 31, 2016, and your salary scale will be reduced to $3,030 per month at that time. (“April 2015 Letter”) [ 16 ] The plaintiff did not respond to the April 2015 Letter. [ 17 ] In July 2015, the plaintiff was advocating for a patio-type gazebo to be purchased and installed at the Society’s residence he supervised. He persuaded Mr. Ens to purchase it on the condition that the plaintiff would arrange for its assembly.

The plaintiff enlisted the help of one of the residents and a co-worker to assemble the gazebo over a few days. A photograph of the gazebo shows it to be a basic metal gazebo under which a small table and chairs were placed for the residents to socialize. There was no construction involved, but simply an assembly. At no time did the plaintiff express any health or other issues to the Society respecting his ability to assemble the gazebo.

The fact that the plaintiff was required to assemble this gazebo became a focus during the trial. [ 18 ] As it happens, notwithstanding the April 2015 Letter, the defendant did not make any changes to the plaintiff’s job classification, duties or salary for almost one year. The status quo remained until February 10, 2016, when Mr. Ens again wrote the plaintiff advising him that the Board decided that effective April 1, 2016, the Society intended to implement what had been proposed in

the April 2015 Letter. The February 10, 2016 letter stated: The Board of Directors of the Okanagan Halfway House Society request that I reiterate the decision of the Board made on March 27, 2015, to re-classify your position with the Okanagan Halfway House Society to that of a shift supervisor with a salary of $3,030 per month effective April 1, 2016. You will no longer be classified as an Administrator, due to financial restraint facing the Okanagan Halfway House Society.

The decision to eliminate one Administrator position was not due to performance but rather due to financial restraint that the Society continues to have to adjust to on a yearly basis. (“February 2016 Letter”) [ 19 ] Although the plaintiff read the February 2016 Letter immediately, he did not communicate his displeasure with it until March 31, 2016, some seven weeks later. In the meantime, he conducted research into the law of constructive dismissal. [ 20 ] On March 31, 2016, the day before the changes were to be implemented, the plaintiff emailed Mr.

Ens stating that he felt he had been constructively dismissed: This will serve as my response to the [February 2016 Letter]. I consider the massive pay cut to be Constructive Wrongful Dismissal.

I am willing to keep working for a few weeks while we attempt to resolve this situation, however unless you maintain my pay level at its current level at its current rate I will be seeking damages for the difference between my old rate and the rate paid, in addition to common law damages for Constructive Wrongful Dismissal. (“March 31, 2016 Email”) [ 21 ] As a result of receiving the March 31, 2016 email, the Society made no changes to the plaintiff’s wages,

schedule or job classification, deciding instead to meet with the plaintiff in an effort to resolve the situation. [ 22 ] Mr. Ens and Mr. Laffan met the plaintiff on April 11, 2016, in Mr. Laffan’s office. Unbeknownst to Mr. Ens and Mr. Laffan, the plaintiff secretly recorded the meeting. He later transcribed the recording and confirmed the transcript, which is in evidence, was accurate. Mr. Laffan enquired of the plaintiff about his plans for the future. The plaintiff confirmed what he had stated previously that: . . . from my perspective an ideal scenario would be if I go on half time.

You’re response was “well that’s no good”. Oh, ok, then I will have to continue on full time. [ 23 ] He then stated that an “ideal situation” would be for him to eventually reduce his hours to working two days out of a six day rotation. Mr. Ens said he did not like that idea because he had to accommodate the Society’s needs and there were no two day positions available. The plaintiff then suggested that if Mr. Ens got creative, it would be possible. [ 24 ] The April 11, 2016, meeting was somewhat strained but cordial and professional nevertheless. At its conclusion, no resolution had been reached.

After the plaintiff departed, Mr. Laffan, who had always maintained a good rapport with the plaintiff, asked Mr. Ens if he could meet with the plaintiff during his shift that day and offer him what he seemed to want, namely working two days out of a six day rotation at the same hourly rate. Mr. Ens agreed and authorized Mr. Laffan to make the proposal, subject to Board approval (“Proposal”). [ 25 ] Mr. Laffan met the plaintiff during his shift that night and made the Proposal. Mr.

Laffan suggested to the plaintiff it would be a “win-win” because the plaintiff would benefit by earning income while reducing his hours in semi-retirement and the Society would benefit by reducing its costs. The plaintiff seemed receptive but was non-committal and asked for two weeks to think about it. [ 26 ] On April 18, 2016, Mr. Laffan met again with the plaintiff who stated that he would not consider the Proposal. He sent an email to Mr. Laffan stating in part: . . . I would not be willing to accept part time work even at my old rate of pay.

My reasons were: in light of the circumstances, I do not trust management and I find the work environment to be extremely toxic. It is therefore not in my best interests to continue working for the Society. You asked if I would accept going back to status quo and of course my answer was and is – no. I reiterated that my sole reason for still reporting to work was to mitigate staffing issues for the Society. I agreed that I would stay on further two weeks if necessary. However I would not accept the reduced rate of pay.

At the April 11 meeting, you brought up the desire to not involve lawyers in order to keeps costs manageable. I discussed the issue with my lawyer and he agreed with the proviso that he would step in if the process bogged down. You understand that I am seeking 23 months of severance. You will be discussing this with Bob Ens and will respond in a timely manner. (“April 18, 2016 Email”) [ 27 ] The April 18, 2016 Email was the first time the plaintiff had ever mentioned an issue with a toxic work environment or that he did not trust the Society’s management. [ 28 ] Mr.

Ens responded on April 19, 2016, summarizing the April 11, 2016 meeting and asked for a further meeting to explore options regarding the plaintiff’s wages.

[ 29 ] On April 23, 2016, the plaintiff sent this email to Mr. Laffan: At our meeting on April 18 I agreed to continue working another two weeks if necessary. My last scheduled day of work this month is Monday, April 25. After that I am scheduled to go on vacation till May 9. I am writing this to confirm with you that coverage for these days has already been arranged, therefore, I will withdraw my services at the end of my shift on April 25. If this presents an unforeseen staffing issue for you, please let me know.

Regarding the issue of severance, I will assume a meeting is forthcoming in the not too distant future. (“April 23, 2016 Email”) [ 30 ] Upon becoming aware of the April 23, 2016 Email, Mr. Ens hastily called a meeting of the Society’s Board to discuss it. The Board met on April 26, 2016, and given the plaintiff’s expressed concerns, decided to revoke the February 2016 Letter and make no changes to the terms of the plaintiff’s employment. He would remain on his regular duties with full salary. [ 31 ] On April 27, 2016, Mr.

Laffan wrote the plaintiff stating that the Society valued him as a long-term employee, that the Board had revoked the changes it had previously proposed, that there would be no changes to the plaintiff’s salary and there would be no wage loss. The letter urged the plaintiff to reconsider his resignation and return to work. The letter also advised the plaintiff that the Society took the new allegations of mistrust of management and a “toxic” work place seriously and would take immediate steps to alleviate his concerns.

That letter stated in part: . . . we want it to be clear that the changes we proposed in April 2015 in no way related to your job performance. We want to stress that during the many years you have worked with the Society you have been a valued and important member of our team. Despite the confusion of these past weeks, your value to our organization has remained unchanged. Over the course of the past weeks, the Board has met and we have discussed your ongoing role within the organization. We wish to confirm that you are a valued member of our team and that you possess a wealth of experience.

Also now that we fully understand your concerns, the Society has decided that it will not be implementing the changes first proposed in our letter of April 14, 2015 and in our letter of February 29, 2016 (sic). As you have been working full time and receiving full wages since April, 1, 2016, you have not – and will not – experience any wage loss. In your email you also state that “you do not trust management” and that you find the “working environment to be extremely toxic”. This is the first I have heard of these concerns, and rest assured the Society is taking this very seriously.

The Society has worked hard to build a culture where all people are valued, respected and trusted. While we are hoping that you will continue working at the Society, clearly your concerns with management and regarding a healthy workplace will need to be addressed. If you could provide details of how the workplace is toxic, we will make sure to thoroughly examine your concerns and see that they are appropriately dealt with. Your more recent letter advises that your last day will be May 9, after your planned vacation.

We certainly hope that you will reconsider this decision and that we will be able to continue working together in the future. In the past you have also suggested that you have been “constructively dismissed”. I have to stress that I strongly disagree that you have been dismissed in anyway. There is no question that over the past year we have had to make some difficult decisions, and perhaps in some instances things could have been handled differently, however you have not experienced any wage losses nor have you been assigned to perform any work that does not fit your skillset.

While we may have disagreed at times, you have always been treated professionally and respectfully. You remain a valued member of our team and we sincerely hope that you reconsider your resignation. (“April 27, 2016 Letter”) [ 32 ] The plaintiff received the April 27, 2016 Letter within the day. He telephoned Mr. Laffan on April 28, 2016, to congratulate him on his new “penmanship” abilities (it was apparent to the plaintiff that Mr.

Laffan did not draft the letter but had professional help) but did not wish to discuss the contents of the April 27, 2016 Letter. [ 33 ] The plaintiff felt that the Society’s overtures were disingenuous and he had no plans to return to the defendant’s employ maintaining that he had been constructively dismissed. [ 34 ] The plaintiff was scheduled to return to work on May 9, 2016, following his holidays. On May 9, 2016, he emailed Mr.

Ens formally responding in writing to the April 27, 2016 Letter: While there is much that I disagree with in this letter, and it is my position that notwithstanding your attempt to mitigate your position, you have still wrongfully dismissed me. Therefore I am still entitled to severance. [ 35 ] On May 11, 2016, Mr. Ens responded once again stating that the Society considered the plaintiff a valued and important member of the team and that it would like him to return to work.

He confirmed that his position was still open to him and suggested the Society was taking his concerns seriously to the extent that it would hire an independent conflict management consultant to assist in his return to work and to help promote a “healthy, happy workplace”. Once again, Mr. Ens implored the plaintiff to reconsider his resignation. [ 36 ] The plaintiff responded the next day with an email confirming his position that: . . .

I did not, nor am I resigning … I have been constructively wrongfully dismissed by your actions as clearly outlined by you in your letters of April 2015 and April 2016. [ 37 ] There were some further emails between the plaintiff and Mr. Ens regarding the record of employment that was issued. The communications culminated with a May 26, 2018 email from Mr. Ens once again urging the plaintiff to return to work and confirming his position was still available to him.

[ 38 ] The plaintiff testified that there was nothing the Society could have done to persuade him to return to work. It was not the job that was the issue, he liked the job, but rather it was his distrust of Mr. Ens. He testified that he viewed the April 2015 Letter as the commencement of his constructive dismissal. He interpreted that letter as meaning that the Society wanted him out because of his age. [ 39 ] At the time he left his employ, his earnings and benefits included:

a) annual salary of $53,400 ($4,450 per month);

b) extended group benefits; and

c) matching RSP contributions valued at 3% of salary. [ 40 ] Since leaving the defendant’s employ, the plaintiff has not applied for work elsewhere, has not contacted any potential employers for employment opportunities, and has not returned to work in any capacity. He considers himself retired. Plaintiff’s Position [ 41 ] The plaintiff points to a series of what he argues were “slights” that he says combined together amount to a constructive dismissal.

He says these slights indicated the Society was no longer intending to honour his employment contract. [ 42 ] The first “slight” occurred with the August 2014 Letter and meeting. [ 43 ] The second “slight” was the meeting in April 2015 and the April 2015 Letter in which the Society suggested, due to financial issues, it might possibly reduce his salary by 30% to be implemented sometime between September 2015 and March 31, 2016, with no reduction in work hours. In his mind, the so-called pay cuts taken by Mr. Ens and Mr.

Laffan were actually pay raises because their salaries were only reduced by 13% and their work hours were reduced by 20%. He did not think it was fair that he be singled out for a 30% pay cut. [ 44 ] The third “slight” was that towards the end of the April 2015 meeting when Mr. Ens gave him the April 2015 Letter, Mr. Ens commented on his age and the plaintiff felt he was being discriminated against because of it. [ 45 ] The fourth “slight” was having to assemble the gazebo despite having a hernia. He felt his concerns were not being heard and he accordingly felt “hurt” and “humiliated”.

He felt that by asking him to assemble the gazebo the Society was trying to show him the door. [ 46 ] Then came the February 2016 Letter where the Society told him it would be implementing the changes to his contract first proposed in the April 2015 Letter effective April 1, 2016.

In anticipation of what he considered to be a clear breach of his employment contract, he wrote the March 31, 2016 Email giving notice to the Society that he was accepting the Society’s repudiation of his employment contract. [ 47 ] The plaintiff argues that he was entitled to withdraw his services on March 31, 2016, and sue for wrongful dismissal, but he agreed to stay on in good faith in the hopes of working something out with the Society. During the first April 11, 2016 meeting, Mr. Ens said the proposed pay cut was going ahead.

The plaintiff made it clear he was not willing to accept a pay cut but would be prepared to work less hours for the same hourly rate. Mr. Ens said part time work would not be offered, but later the same day Mr. Laffan offered him what he was seeking. This, the plaintiff argues, was another “slight” because he felt either Mr. Ens or Mr. Laffan was not being honest and what they were telling him conflicted. [ 48 ] The plaintiff argues that when he stated in the April 18, 2016 Email he would not be willing to accept the “status quo”, he meant the ongoing conflicting information going back to August 2014.

As far as he was concerned, there was no hope of the pay cut not happening so he treated his contract as terminated and withdrew his services on April 25, 2016. He did not know the pay cut was being revoked until April 27, 2016. By then, “the horse was out of the barn”. On April 23, 2016, the anticipatory breach was complete and it was then too late for the Society to back-track and remedy the breach.

In his view, the Society had demonstrated that it was no longer prepared to be bound by the plaintiff’s employment contract and the April 23, 2016 Email was his acceptance of the Society’s repudiation. [ 49 ] He asserts that he was slighted again by the April 27, 2016 Letter that, in his view, was not a good faith letter but was a cleverly worded “please come back” letter written by a professional simply to mitigate the Society’s exposure to a lawsuit. He felt it contradicted everything the Society had been telling him since August 2014 and was a 180 degree shift in its position.

He argues that the Society was not being honest with him, the workplace had become “toxic” and was no longer a tolerable place for him to work. [ 50 ] Given his length of service, his age, his experience, and his responsibilities, he argues he is entitled to 20 – 24 months’ damages in lieu of notice. [ 51 ] Regarding mitigation, the plaintiff argues that on any reasonable measure, he should not have been required to accept the Society’s invitation to return to work under any conditions.

He argues that the workplace had been “toxic” since August 2014 and given what the Society was attempting to do, it would not have been appropriate for him to return to an employer who had just dismissed him. He says it would mean the plaintiff would have to return to an environment of “hostility, embarrassment and humiliation”. [ 52 ] Further, he argues that his failure to seek alternative employment was not unreasonable.

He had only worked at two jobs in his life, the Society being the second, had just turned 71, and he decided to take a different path by helping his wife with her bookkeeping, build a rental suite in his house and engage in a micro-greens project. The onus is on the Society in any event to show that had the plaintiff made an effort, he could have obtained similar employment and the Society failed to adduce any evidence on the point.

[ 53 ] He says that if there is to be any reduction for failure to mitigate, it should be no more than one month. [ 54 ] The plaintiff also seeks aggravated damages of between $10,000 and $15,000 for what he asserts was the Society’s untruthfulness (Mr. Ens and Mr. Laffan giving him conflicting information), misleading him (the Society led him to believe the pay cut proposed in April 2015 would not happen if the Society was in better financial shape), being unduly insensitive to him (referring to his age in the April 2015 meeting and April 2015 Letter) and misrepresenting the reason for the proposed pay cut.

He argues that in both the April 2015 Letter and February 2016 Letter reference is made to the Society’s financial condition but notes that as soon as the Society learned that the plaintiff was claiming constructive dismissal, it not only withdrew the proposed pay cut, but was prepared to hire conflict consultants without confirming first what such consultants would cost. This, the plaintiff asserts, shows that there were no financial issues facing the Society as it suggests.

He argues that the April 27, 2016 Letter and the subsequent “please return to work” letters were untruthful and unduly insensitive and done solely for the purpose of mitigating damages. [ 55 ] In sum, the plaintiff seeks damages of:

a) between $89,000 - $106,800 (20 – 24 months x $4,450 per month);

b) plus 3% RSP contribution ($2,670 - $3,204); and

c) aggravated damages between $10,000 and $15,000. Defendant’s Position [ 56 ] The Society argues that the plaintiff simply resigned his position with the Society and is therefore not entitled to damages. Alternatively, if he was constructively dismissed, he failed to make any reasonable attempts to mitigate and he is disentitled to any damages award. [ 57 ] The Society asserts that the circumstances of this case do not justify a conclusion that the plaintiff was constructively dismissed.

The reality is that the Society is a small and relatively unsophisticated non-profit society with limited funding and a volunteer board of directors. In April 2015, it was looking at a worsening financial picture and needed to find ways of cutting expenses. Mr. Ens and Mr. Laffan, as the senior managers, reduced their hours and took pay cuts.

The plaintiff was then age 70 and the Society, quite reasonably it argues, wanted to know his retirement plans so it could plan ahead. [ 58 ] The April 2015 Letter proposed possible future changes in the plaintiff’s job classification and salary although those changes were never implemented. The plaintiff did not respond to the April 2015 Letter until March 31, 2016, the day before the changes were to take effect. [ 59 ] The Society concedes that if the proposed changes were implemented by the Society, the plaintiff would have an argument that he had been constructively dismissed.

But, as a result of the March 31, 2016 Email, no changes were made to the plaintiff’s employment contract; the Society’s management made significant efforts to meet with, discuss and address any issues the plaintiff had and, before the month was over, revoked the proposed changes.

Accordingly, his claim for constructive dismissal should be dismissed. [ 60 ] Alternatively, if there was a constructive dismissal, within two days of when the plaintiff said he was withdrawing his services, he was offered employment at the same job with the same duties and salary and with the sincere desire on the part of the Society to resolve any concerns or issues he may have had. Accordingly, the plaintiff failed to mitigate his damages by returning to work on May 9, 2016, as he reasonably should have.

His refusal was a breach of his duty to mitigate and his claim should be dismissed on that basis. [ 61 ] In the further alternative, if it is found that the plaintiff was not required to return to work with the Society, his damages should be 18 months’ salary in lieu of notice, less the twelve months’ notice he received when he was given the April 2015 Letter notifying him of the proposed changes to his job and salary.

His damages would therefore be based on six months’ salary with a reduction for failure to mitigate by searching for work elsewhere. [ 62 ] At the very least, the Society argues there should be a deduction of three months from the notice period because he was notified of the proposed changes to his contract with the February 2016 Letter and he was paid until May 9, 2016.

With mitigation, the maximum damage award should be based on nine months’ salary. [ 63 ] Regarding the plaintiff’s claim for aggravated damages, the Society argues that it acted professionally, treated the plaintiff respectfully and in a businesslike manner. In any event, there is no evidentiary foundation to support an award of aggravated damages. The plaintiff led no evidence that he was somehow injured or suffered distress or anxiety over and above the normal distress and hurt feelings that arise from the fact of a dismissal. There is no evidence of damage to support such a claim: Lau v.

Royal Bank of Canada, 2017 BCCA 253 at paras. 68 – 71 . Discussion i. Legal Principles [ 64 ] The first question for determination is whether the plaintiff was constructively dismissed. If he was, the next question is what flows from that dismissal in the circumstances of this case. In order to answer these questions, I will review the relevant legal principles which I summarize as follows:

a) Constructive dismissal engages a two pronged test:

i. Was there a unilateral change by the employer that firstly, constituted a breach of the employment contract and secondly,substantially altered an essential term of the contract? This is an objective test: Potter v. New Brunswick Legal Aid Services Commission,2015 SCC 10 at paras. 34, 37 [Potter]; and ii. Did the employer engage in a course of conduct that, when viewed in light of all the circumstances, would lead a reasonable personto conclude that the employer no longer intended to be bound by the terms of the contract?: Potter at para. 42.

b) A repudiation of an employment contract by the employer does not automatically terminate that contract but confronts the employeewith the choice to either affirm the contract and treat it as continuing or to accept the wrongful repudiation and treat the contract as at anend: Potter at para. 30; Elderfield v. Aetna Life Insurance Co. of Canada (1996), (BC CA), 27 BCLR (3d) 1 at para. 15(C.A.) [Elderfield].

c) An anticipatory breach occurs when one party manifests, through words or conduct, an intention not to perform or not be bound byprovisions of the agreement that require performance in the future. There will be an anticipatory repudiation if the words and conductevince an intention to breach a term of the contract which, if actually breached, would constitute repudiation of the contract: Potter atpara. 149.

d) If an employee decides to treat the breach of his or her employment contract as a constructive dismissal, the employee mustcommunicate that decision to accept the repudiation of the contract to the employer in a reasonable time: Danielisz v. Herculesforwarding Inc., 2012 BCSC 1155 at para. 71 [Danielisz]; Farquhar v. Butler Brothers Supplies Ltd. (1988), (BC CA),23 B.C.L.R. (2d) 89 at 92, 94 (C.A.) [Farquhar].

e) The repudiating employer then has the opportunity to reconsider its position and resile from the breach by giving notice that itintends to comply with the contract: Elderfield at para. 22.

f) If an employee voluntarily resigns from his or her employment, rather than being dismissed, the employee cannot claim wrongfuldismissal: Bishop v. Rexel Canada Electric Inc., 2016 BCSC 2351 at para. 11 [Bishop].

g) Whether or not a constructive dismissal has occurred is a question of fact: Danielisz at para. 70.

h) It is not the employee’s view of events that is to be relied upon, but rather the Court’s, based on an objective assessment of all theevidence: Danielisz at para. 70.

i) The plaintiff has the burden of proving that he or she has been constructively dismissed rather than having resigned: Potter atpara. 31; Bishop at para. 12.

j) The plaintiff also has the burden to establish entitlement to damages. The burden is on the employer to prove a failure to mitigatedamages: Fredrickson v. Newtech Dental Laboratory Inc., 2015 BCCA 357 at para. 17 [Fredrickson].

k) A plaintiff cannot recover damages that could have been mitigated by an offer by the employer that the employee return to his or heremployment, provided such an offer is for a reasonable working situation in all the circumstances: Fredrickson at para. 18. Where theemployer offers the employee a chance to mitigate damages by returning to work, the central issue is whether a reasonable person wouldaccept such an opportunity: Evans v. Teamsters, Local 31, 2008 SCC 20 at paras. 22 and 30 [Evans]. The critical element is that anemployee is not obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation: Evans at para. 30.

l) In some situations, it would be unreasonable for an employee to decline to continue in employment through the period equal toreasonable notice, while he or she looks for other work: Farquhar at para. 94. ii. The evidence and findings of fact [65] While most of the evidence in this case is not in dispute, there are some areas where the parties disagree. [66] Where the evidence conflicts, I prefer Mr. Ens’ and Mr. Laffan’s evidence over the plaintiff’s evidence. Both Mr. Ens andMr. Laffan presented their evidence thoughtfully, calmly, and in a straightforward fashion.

I did not have the same impression of theplaintiff who was prone to answering questions on cross-examination with a hostile and argumentative tone. On occasion, he answeredquestions he was asked with questions of his own. He did not strike me as being sincere but rather left me with the impression that hewas couching his testimony in words he thought would prove constructive dismissal. [67] One example of where I had trouble accepting the plaintiff’s evidence was his testimony about what he told Mr. Ens at theApril 2015 meeting after hearing about the proposed 30% pay cut. He testified that he told Mr.

Ens he would not agree to a change in hissalary. Mr. Ens denies this. Given the plaintiff’s adamant position that he considered such a drastic reduction in his salary a fundamentalbreach of his contract and given his clear ability to articulate his position in writing, it is reasonable to expect him to have provided hiswritten objections to the Society. My assessment of the plaintiff’s personality is that he would have had no hesitation in standing up forhimself if he was unhappy or upset.

I find he did not communicate any objection to the April 2015 Letter to the Society’s management. [68] As another example, on signing the August 2014 Letter, he wrote that he would be “responding under separate cover”. He didnot. I infer any objections or concerns he had respecting that meeting were minimal. Given his evidence that the deterioration of hisrelationship with Mr.

Ens and his distrust of the Society’s management began with the August 2014 meeting, it would make sense thathe would have put his objections in writing as he said he would. [69] The plaintiff also states that the April 2015 Letter was confusing and did not reflect what was discussed during the April 2015meeting. Again, if his distrust of Mr. Ens and the Society started the year before as he suggests, it makes sense that he would haverequested clarification from Mr. Ens and documented his upset. I do not accept his evidence that he was content to discuss the matter

with Mr. Webber (who has no recall of him doing so) who was not in management and who he says told him not to worry about any proposed pay cut. [ 70 ] Another example relates to the assembly of the gazebo. The plaintiff says that despite his ill-health he was directed to assemble the gazebo without proper tools or a ladder and while he was suffering from pain from a hernia. He says he told Mr. Ens that he physically could not do it. Mr. Ens denies being so told. I am satisfied that the plaintiff did not tell Mr. Ens that he had a hernia or that he was physically unable to assemble the gazebo.

The plaintiff was passionate about having a place outside for the residents to socialize, smoke and discuss things. He had previously purchased less sturdy gazebos for the residents that did not last. He implored the Society to purchase a sturdier version. From my review of the photograph of the gazebo, it would not have involved much to assemble it. Even if he was in pain, it could easily have been assembled by two or three members of the staff and/or residents very quickly.

Further, the first time he made mention of the assembly of the gazebo being an issue was in his affidavit filed after the Society brought the Application. [ 71 ] I agree with the Society that the issue the plaintiff raises about the gazebo assembly is essentially a non-event put forward in an attempt to create something out of not very much. [ 72 ] This case can be summed up this way. In March 2015, the Society was concerned about ongoing financial issues and was looking for solutions to curb its deficit. The Board asked its senior management to reduce their hours of work and salaries.

It would have been natural and reasonable for it to approach the plaintiff who was approaching retirement age, to inquire of his retirement plans. Mr. Ens was instructed to inform the plaintiff of possible future changes in his position, which he did in the April 2015 Letter. [ 73 ] The plaintiff did not object to the April 2015 Letter nor did he ask for clarification to it. The plaintiff now says he took extreme exception to the April 2015 Letter, in particular to the suggestion that his salary might be reduced by one-third.

For one year after receiving the April 2015 Letter, and even though he says he was confused by what it meant, he did not mention it to Mr. Ens, Mr. Laffan or any other of the Society’s management. [ 74 ] Despite the April 2015 Letter, the Society did not implement any changes and the status-quo was maintained until it sent the February 2016 Letter.

Had those changes been made, the Society would have been in breach of the terms of the plaintiff’s employment contract and, all things being equal, the plaintiff would have been able to claim that he had been constructively dismissed subject to the Society’s ability to revoke the changes. [ 75 ] However, prior to the April 1, 2016 proposed implementation of the changes, the plaintiff sent the March 31, 2016 Email and the Society put the changes on hold pending further discussions with the plaintiff. Mr. Ens was unaware of any of the issues the plaintiff now raises until he received the March 31, 2016 Email.

By its wording, the plaintiff signalled and Mr. Ens reasonably thought he could meet with the plaintiff and attempt to find a resolution. No changes to the plaintiff’s contract were made in the meantime and the plaintiff continued working his regular shifts. By the terms of the March 31, 2016 Email, the Society believed it had time to address the plaintiff’s concerns. The steps the Society took were relatively immediate (there were two meetings on April 11, 2016) and it constructively attempted to address the plaintiff’s concerns. During the first April 11, 2016 meeting, the plaintiff told Mr. Ens and Mr.

Laffan that if they got creative, a solution could be found. This comment too would have signaled the plaintiff’s apparent desire to continue working while the issues were ironed out. [ 76 ] It is important to note that while these discussions were taking place, no changes to the plaintiff’s terms of employment were made. Within a reasonable timeframe, the Society rescinded its planned changes and so informed the plaintiff. The April 27, 2016 Letter showed that the Society had realized a change to the plaintiff’s salary was a mistake and was using its best efforts to correct the error.

I accept that the Society’s overtures were well-intentioned and reasonable. [ 77 ] Additionally, it was treating the plaintiff’s brand-new allegations of mistrust and a toxic work place seriously and was making a commitment to work with the plaintiff to address his concerns. Despite these allegations, I am not satisfied that the Society was hostile, degrading or disrespectful of the plaintiff. I am also not satisfied that the work environment was “toxic”. [ 78 ] The plaintiff’s evidence was clear that he very much enjoyed his job.

He had a good relationship with the parole officers he dealt with, the residents and his co-workers. [ 79 ] Although the Society had indicated its intention to reduce the plaintiff’s salary, it ultimately reversed its decision and made no changes to the terms of the plaintiff’s contract. Taking all the circumstances into account, it cannot be that the Society’s conduct evinced an intention to no longer be bound by it.

Placed in context, none of the plaintiff’s alleged “slights” individually or in totality would lead a reasonable person to believe the Society was being demeaning, or treating him disrespectfully or poorly such that he would be humiliated or embarrassed. [ 80 ] The plaintiff has failed to satisfy either branch of the test for constructive dismissal. I find that telling the Society that although he felt he had been constructively dismissed he would work with the Society to find a solution, obligated him to do so.

It was unreasonable for him to “withdraw his services” during the process, while he was continuing to be paid in full, and before any changes to his contract were made. [ 81 ] In sum, I find that the plaintiff resigned his employment. [ 82 ] By any objective measure, when the plaintiff was informed on April 27, 2016, that the Society had revoked its earlier proposal to reduce his salary, the plaintiff should have returned to his employment and his refusal to do so was unreasonable. [ 83 ] The plaintiff had a duty to mitigate his damages by accepting the Society’s invitation to return to work and his failure to do so was a breach of that duty.

It must be remembered that damages are meant to compensate for lack of notice, not to penalize the employer for the wrongful dismissal. The notice period is intended to provide employees with sufficient opportunity to seek new employment and arrange their personal affairs. Employers that provide sufficient working notice are not required to pay damages in lieu of notice just because they have chosen to terminate the contract: Evans at para. 28 .

[ 84 ] Accordingly, the plaintiff’s claim must be dismissed. Decision [ 85 ] The defendant’s application for

summary dismissal of the plaintiff’s claim is allowed. [ 86 ] The plaintiff’s claim is dismissed. [ 87 ] Unless there are matters respecting costs that need to be spoken to, the defendant is entitled to Scale B costs. “G.P. Weatherill J.”