Shelley Shultz Plaintiff v. Prococious Technology Inc., dba Cleardent, 2022 BCSC 1420

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Shultz v. Prococious Technology Inc., dba Cleardent, 2022 BCSC 1420 Date: 20220818 Docket: S39222 Registry: Chilliwack Between: Shelley Shultz Plaintiff And Prococious Technology Inc., dba Cleardent Defendant Before: The Honourable Madam Justice Walkem Reasons for Judgment Counsel for Plaintiff: T. Sanghera Counsel for Defendant: J.D. Kondopulos, and J.D. Wong Place and Date of Hearing: Chilliwack, B.C. April 22, 2022 Place and Date of Judgment: Chilliwack, B.C.

August 18, 2022 Table of Contents Background .. 3 Issues .. 4 Appropriate Notice Period .. 5 Plaintiff’s Length of Employment 5 Termination Clause . 7 Finding on Notice . 8 Notice under Common Law .. 9 Bonus/Incentive Plan .. 10 Analysis . 11 Finding . 14 Aggravated Damages .. 14

Summary .. 16 Costs .. 17 Background

[ 1 ] The Plaintiff, Shelley Shultz, is a self-advocate and actively pursued a different position within the Defendant company, Cleardent, when she was unhappy with her job. [ 2 ] On December 29, 2021, the Plaintiff made a PowerPoint presentation to Shirley Tung and Peter Li, the co-directors of the company, proposing that a new position be created for her. The PowerPoint was titled, “My Role at Cleardent”, and outlined the Plaintiff’s personal conflicts with “Karl”, another manager, and suggested that the role of “Director of Operations” be created for her within the company.

The Defendant did not agree with her proposal. [ 3 ] The PowerPoint contained statements such as: “it’s time to move on”; “I need to move away from the role of Sales Manager as it develops into its current iteration”; “I want to stay with Cleardent”; “I want to be part of the future”; and, “I must move for my mental and physical health”. [ 4 ] Immediately after the PowerPoint presentation, the Defendant struggled to respond.

Peter Li, co-founder and Chief Evangelist with Cleardent said that: “…as a result of her dissatisfaction in her role as Sales Manager, I wrestled with how best to move forward for Cleardent”. [ 5 ] In discussions which occurred shortly after the PowerPoint presentation, the Plaintiff claims that Peter Li initially suggested she had resigned, then suggested she could be placed on paid, or unpaid, leave. The Plaintiff declined both leave options, and clarified she had not resigned through the PowerPoint presentation.

I find that the Defendant’s confusion was understandable given the mixed messages in the PowerPoint presentation and correspondence. [ 6 ] On January 13, 2022, the Defendant terminated the Plaintiff without-cause and informed the Plaintiff she was entitled to two weeks’ pay in lieu of notice per the Employment Agreement, which adopted the notice standards in the Employment Standards Act , R.S.B.C. 1996, c. 113 [ ESA ].

The Plaintiff was terminated during a Zoom videoconference while housesitting in Mexico. [ 7 ] At the time of termination, the Plaintiff was 54 years old and earned $95,000 in base salary, plus any commission or bonus that she may have been entitled to.

The Defendant had proposed a bonus incentive compensation structure prior to her termination, but at the date of her termination, she had not agreed to its terms. [ 8 ] The Plaintiff seeks damages for breach of contract equivalent to 14.5 months’ earnings including her commission and bonuses; aggravated damages of $25,000; and costs, plus interest of $8,000. [ 9 ] The Plaintiff argues that her termination was done in an unduly insensitive manner, and that the manner of her termination was “confusing, distressing, and callous”.

The Plaintiff suffers a medical condition requiring prescription medication, and when her medical insurance coverage ended upon termination, she had to obtain replacement insurance for $490. The Plaintiff claims that her termination exacerbated her previously known health problems. Issues [ 10 ] The issues before me are: (

a) What is the appropriate notice period for the Plaintiff in the circumstances of her employment? (

b) To what extent should bonuses, that the Plaintiff may have been entitled to had a compensation plan been reached between the parties, be included in damage calculations? (

c) Has the Plaintiff made reasonable attempts to mitigate her losses such that the notice period should be reduced? (

d) What damages, if any, is the Plaintiff entitled to? Appropriate Notice Period Plaintiff’s Length of Employment [ 11 ] The length of the Plaintiff’s employment was a contested issue between the parties. At one point, the Plaintiff had resigned from the Defendant’s employ, and returned approximately one year later. The Plaintiff argues that the length of service calculation for the purposes of determining appropriate notice, should include her entire time working with the Defendant, and be calculated at just under 13 years.

The Defendant argues the Plaintiff’s period of employment should be calculated from when she returned to the company in April of 2019, and that the appropriate period to calculate notice is two years and nine months. [ 12 ] The Plaintiff had a long-term association with the Defendant in capacities that evolved over the years. From around 2006 to August 31, 2011, the Plaintiff provided services to the Defendant as an independent contractor.

From around September 6, 2011 to February 15, 2018, the Plaintiff worked as a technical sales employee with the Defendant under an employment contract. [ 13 ] Effective February 15, 2018, the Plaintiff resigned from her employment. The Plaintiff originally proposed to resign in September or October of 2017, but was convinced to postpone her resignation until February, 2018. Per her resignation email, the reasons for the Plaintiff’s resignation were that she did not wish to be “marginalized” or “[have] my territory cut up”.

A change in management seems to have precipitated events leading to the resignation. [ 14 ] The Plaintiff then worked in other jobs, including at a technology sales company and an agricultural publishing company.

[15] After a period of just over a year, from around April 8, 2019, the Plaintiff returned to the Defendant company as a sales engineer.Her employment contract was dated March 25, 2019. [16] The Plaintiff argues her job commencing April, 2019 was an employment continuation.

She argues that her employment shouldbe considered continuous, and the fact that she left the Defendant company for a period of just over a year, should not reset theemployment clock, especially when considered in light of the lengthy relationship between the parties, and the fact that the Defendantbenefited from her experience and industry knowledge upon her return. [17] The Plaintiff relies on the reasoning in Dobbs v. Cambie Malone’s Corp., 2011 BCSC 1830 [Dobbs].

In Dobbs, the Court foundthat an 11-month long break in employment following 8.5 years of employment and preceding 2.5 years of employment was a hiatus thatdid not detract from the employee’s cumulative length of service. The employee in Dobbs had resigned, then was actively asked to returnto their position by the employer. Upon their return, the employee was treated as a long-term employee. The Plaintiff argues that shelikewise resumed employment following a relatively brief hiatus, bringing experience with the Defendant and knowledge of the industrywith her: Dobbs. See also Cheong v.

Grand Pacific Travel & Trade (Canada) Corp., 2016 BCSC 1321 [Cheong]. [18] The Defendant argues this was a new employment relationship, and that the Plaintiff was subject to a probationary period, andstarted to acquire vacation days, per her new start date. [19] The Defendant argues that, where an employee resigns from their job and later returns to take a new job at the same employer,the prior period of employment will generally not be considered in assessing entitlement to reasonable notice, unless the parties expresslyagree otherwise or conduct themselves in a manner consistent with the recognition of the employee’s previous employment: Kim v.International Triathlon Union, 2014 BCSC 2151 at para. 226, citing Gibara v.

ABN-Amro Bank, at para. 10(O.N.S.C.). [20] Here, there was no express term or conduct that recognized the Plaintiff’s previous employment (unlike Dobbs or Cheong). Theprobation period and reset vacation entitlement indicate that she was treated as a new employee. I find that the Plaintiff’s length ofemployment should be calculated from when she returned to the company in April 2019, and therefore, her length of employment is twoyears and nine months. Termination Clause [21] Around March 29, 2021, the Plaintiff received a promotion to Sales Manager, and an increased salary.

The March 2021 writtenemployment agreement (“Employment Agreement”) provides: 6.3 Termination by Company Without Cause. The Company may terminate the Employee’s employment for any reasons, withoutcause, upon providing the Employee with only the notice or payment in lieu of notice (or a combination thereof) in the minimum amountrequired by the British Columbia Employment Standards Act, as amended from time to time. Benefits will end on the last day worked. 6.4 The Employee understands that by complying with this

Article 6.3, the Company satisfies its entire obligation under statute andcommon law to provide notice or pay in lieu of notice to the Employee in the event that their employment is terminated. In no event willthe Employee receive less notice or pay in lieu of notice than the minimum termination notice or pay in lieu of notice they are entitled tounder the British Columbia Employment Standards Act, as may be amended from time to time. (“Termination Provision”) [22] The Termination Provision adopts the notice standard set out within the ESA. Per s. 63(2) of the ESA, notice requirements are setout as follows: 63

(2) The employer's liability for compensation for length of service increases as follows: (

a) after 12 consecutive months of employment, to an amount equal to 2 weeks' wages; (

b) after 3 consecutive years of employment, to an amount equal to 3 weeks' wages plus one additional week's wages for each additionalyear of employment, to a maximum of 8 weeks' wages. [23] The Defendant argues that the Termination Provision clearly states that the Plaintiff’s employment with the Defendant wasterminable without-cause, upon providing “only the notice or payment in lieu of notice (or a combination thereof) in the minimumamount required by the British Columbia [ESA]”. Further, the Defendant argues that the Termination Provision is unambiguous, valid,and enforceable.

The Defendant relies on: Miller v. Convergys CMG Canada Limited Partnership, 2014 BCCA 311, and Asari Sereshkv.

Peter Kiewit Sons ULC, 2021 BCSC 2570. [24] The Plaintiff claims that the “Termination Provision” relied upon by the Defendant is void ab initio because: • Her duties and responsibilities had changed substantially, such that the Defendant can no longer rely on the EmploymentAgreement; • The Employment Agreement was a “retroactive document” where the Plaintiff gained a “mere $416.66 per-month increase insalary in exchange for signing a document outlining changes that had already taken place”; and, • There was a lack of fresh consideration to the benefit of both parties. [25] The Plaintiff relies on Machtinger v.

HOJ Industries Ltd., (SCC), [1992] 1 S.C.R. 986; Shore v. Ladner Downs, (B.C.C.A.); Waddell v. Cintas Corp., 2001 BCCA 717; and Waksdale v. Swegon North American Inc., 2020 ONCA391. The Plaintiff claims that the common law applies, and the appropriate range for reasonable pay in lieu of notice is 12 to 17 months’

pay, noting a mid-point of pay equivalent to 14.5 months. [26] I find the Employment Agreement between the parties to be valid. The salary increase of $416.66 was a valid consideration to thebenefit of the Plaintiff. Under the Employment Agreement, the Plaintiff received a promotion, acquired different responsibilities, andreceived a raise in return. Finding on Notice [27] I find that the Plaintiff is entitled to a notice period of two weeks, per the Termination Provision. The Employment Agreementcontains an unambiguous Termination Provision, adopting the standards and timelines set out in the ESA.

It is valid and enforceable. [28] I have found that the Plaintiff was employed with the Defendant for a period of two years and nine months. Per s. 63 of the ESA,the notice period that the Plaintiff is entitled to is two weeks, as provided in the Employment Agreement. This is what she received fromthe Defendant, and therefore, she was not wrongfully dismissed.

Notice under Common Law [29] In the alternative, if I had found the Employment Agreement void ab initio, I set out the pay in lieu of notice that I would haveawarded the Plaintiff below. [30] As a general principle at the common law, employees are entitled to roughly one month of notice per year of service: Stanley v.Advertising Directory Solutions Inc., 2014 BCSC 376 at para. 64. Notice requirements are not set in stone, and different factors wouldshift the notice period up or down.

Factors for consideration in determining the appropriate notice period include the character ofemployment, length of service, age of employee, and availability of similar employment with regard to an employee’s experience,training, and qualifications: Bardal v. Globe & Mail Ltd., (O.N.S.C.). [31] The Plaintiff submits that one of the most important factors in assessing the reasonable notice period in her case is her age. At 54years old, she argues that her age adds further difficulty to her search for reasonably similar employment. In McKinney v.

University ofGuelph, (SCC), [1990] 3 S.C.R. 229 at 299, the Supreme Court noted that: “Barring specific skills, it is generally knownthat persons over 45 have more difficulty finding work than others”. [32] The Defendant submits that the Plaintiff has an obligation to mitigate her damages, and to seek other reasonably similaremployment, characterizing the Plaintiff’s job search efforts as insufficient in the circumstances. The Defendant argues that thePlaintiff’s “sales manager” skills are easily transferrable.

As such, the Defendant argues that the Plaintiff failed to mitigate her damagesby not taking sufficient steps to search for employment, and that any damages paid to the Plaintiff should be reduced accordingly. [33] A dismissed employee has a duty to mitigate their losses by seeking comparable employment. The Court of Appeal summarizedthe duty to act reasonably in seeking alternative employment in Forshaw v.

Aluminex Extrusions Ltd. at 6 (B.C.C.A.) asincluding a duty: …[T]o take such steps as a reasonable person in the dismissed employee's position would take in [their] own interests – to maintain[their] income and [their] position in [their] industry, trade or profession. The question whether or not the employee has acted reasonablymust be judged in relation to [their] own position, and not in relation to that of the employer who has wrongfully dismissed [them]… [34] The Plaintiff did not apply for jobs until about three weeks after her termination.

Given her shock and need to attend to otherconcerns, I do not find the delay unreasonable. [35] The Plaintiff has completed computer searches and applied for other jobs online, and has reached out to her contacts in theindustry. The Plaintiff used a specialized LinkedIn membership to search for jobs to assist in applying for employment, but did not use aseparate placement agency. Given that much of the Plaintiff’s work is done “online”, it is reasonable for her to have searched in thisfashion. I also find that a slight delay in beginning searching for new employment is reasonable in the circumstances.

I find that thePlaintiff took reasonable steps to mitigate her damages. [36] The Plaintiff was 54 years old at the time of her termination. Her work was largely capable of being done online. There appearedto be many other high-level sales jobs she was eligible for. [37] If the Termination Provision was void ab initio, I would have awarded the Plaintiff two months’ wages in lieu of notice at thecommon law, less the two weeks’ notice she already received. Bonus/Incentive Plan [38] The Plaintiff’s base salary was about $95,000, plus bonuses.

The Employment Agreement provided that the Plaintiff was entitledto participate in the bonus plan (referred to as the “Variable Compensation Plan”) as follows: 4.2 The Employee shall be entitled to participate in the Variable Compensation Plan, if any, in place in any given year, as may beinstituted, amended or replaced by the Company at its sole discretion annually and from time to time. [39] Bonuses were a significant portion of the Plaintiff’s remuneration. The parties agreed to the Plaintiff’s entitlement to theincentive bonus amounts in March 2021, for the March 2021 to July 2021 period.

In 2021, the Plaintiff earned $30,000 in bonuses. The

Defendant’s fiscal year runs from August to July. [ 40 ] The parties began to negotiate the 2022 Variable Compensation Plan, which was to apply from August 1, 2021 to July 31, 2022, in or around September 2021. The Defendant sent a proposed Variable Compensation Plan to the Plaintiff in November 2021. The Plaintiff did not agree to the proposed terms. No signed agreement was in place when the Plaintiff was terminated. [ 41 ] The Plaintiff argues that her retroactive bonus and bonus for the foregone notice period are properly calculated as part of her damages. She relies on Piron v.

Dominion Masonry , 2013 BCCA 184 [ Piron ]. The Defendant’s position is that the Plaintiff was not entitled to any additional bonus or incentive programs because no Variable Compensation Plan had been signed between the parties. Analysis [ 42 ] The onus is on the employee to show, as a matter of contract, that they would have been entitled to a bonus if they had worked during the notice period and to show the basis for assessing the amount of the bonus: Nicholls v.

Columbia Taping Tools Ltd., 2013 BCSC 2201 at para. 268 . [ 43 ] Generally, an employee is not entitled to a discretionary bonus on termination: Nicholls v. Columbia Taping Tools Ltd. , 2013 BCSC 2201 . The onus is on the employee to persuade the Court that, had they worked during the notice period, they would have been entitled to the bonus. [ 44 ] In Becker v. Optic Zoo Networks Ltd., 2017 BCSC 2041 at paras. 51-61 [ Becker ], the Court set out a process for how to interpret the wording of a contract to determine if an employee was contractually entitled to commission, by considering the contract as a whole.

In Becker , the employee became eligible for commission when services were provided and were triggered by billing the customer. In the result, the employee was entitled to commissions they earned as the effective cause of service contracts/revenue for the company. [ 45 ] The Court must assess whether the bonus is “integral” to the employee’s compensation by considering the following factors from Gillies v. Goldman Sachs Canada Inc., 2000 BCSC 355 [ Gillies ]: 1. A bonus is received each year although in different amounts; 2. Bonuses are required to remain competitive with other employers; 3.

Bonuses were historically awarded and the employer had never exercised his discretion against the employee; and 4. The bonus constituted a significant component of the employee’s overall compensation. [ 46 ] The Employment Agreement, read as a whole, entitles the Plaintiff to bonuses, if the employer decides to put in place a bonus structure for that year. Here, a Variable Compensation Plan was put in place by the Defendant for the 2022 fiscal year that would have applied for the period between August 1 and December 31, 2021.

The difficulty is that the Plaintiff attempted to challenge it, and so it was not signed. Nonetheless, a Variable Compensation Plan was in place on the Defendant’s part. [ 47 ] The Supreme Court of Canada, in Matthews v. Ocean Nutrition Canada Ltd ., 2020 SCC 26 at para. 55 [ Matthews ], affirmed a two-step test for determining whether damages for breach of an implied term to provide reasonable notice includes bonuses as follows: …Would the employee have been entitled to the bonus or benefit as part of their compensation during the reasonable notice period?

If so, do the terms of the employment contract or bonus plan unambiguously take away or limit that common law right? [ 48 ] In Matthews , the Court asked at this stage but for the employee’s dismissal would they have received their bonus payment? Here, the Defendant had made a proposal. The Plaintiff did not accept it, and sought to continue negotiations. [ 49 ] If the Plaintiff had signed the 2022 Variable Compensation Plan, she would have been entitled to the bonus.

The previous year’s Variable Compensation Plan contained a term that stated, if she was terminated, she would have received a percentage based on the target achieved before the termination date. If the Plaintiff had continued to work for the Defendant, I find it more likely than not, that the parties would have agreed to a Variable Compensation Plan, and the Plaintiff would have received a bonus. [ 50 ] In Piron , a negotiated bonus was awarded despite the employee’s termination. However, it was found that the amount of the bonus was subject to negotiation to reflect the employee’s contribution to projects.

The contract of employment contained an oral term contemplating that a bonus would be paid and set out the process of negotiation. [ 51 ] In Piron , the employer argued the bonuses were discretionary, but the Court of Appeal found they were a “significant part” of the employee’s remuneration. The Court of Appeal found, at para. 22, that "the employment contract entitled [the employee] to be compensated by way of a bonus in addition to his hourly wages".

Though the amount was "subject to negotiation", there was general agreement that it should "fairly reflect the responsibility undertaken" by the employee, and it was anticipated that the amount would be determined after a "process of negotiation" between the parties. I find that is the case here. [ 52 ] The Employment Agreement defines the Plaintiff’s remuneration as including a “base salary”, which implies that there will be additional income through other means, such as bonuses.

The bonus that the Plaintiff could be expected to receive constituted a "significant part" of her remuneration with the Defendant. [ 53 ] The Plaintiff says her total earnings in 2021, of approximately $115,000, were lower than she anticipated in 2022 because she was promoted to Sales Manager mid-year, and so the bonus only covered part of the year. The Plaintiff’s evidence was that the Variable Compensation Plan structure may have equaled roughly 50% of her base salary. The Defendant’s submission was that bonuses for the year in which the Plaintiff was terminated would have been significantly less.

Though the bonus the Plaintiff may have been entitled to is not known, it is reasonable to presume any bonus would have constituted a significant portion of the Plaintiff’s total remuneration

package. Finding [54] On consideration of the Employment Agreement as a whole, the bonus was integral to the Plaintiff’s compensation based on herposition as a Sales Manager and the structure of remuneration as including a base salary plus a bonus.

The bonus in this case meets thecriteria as set out in Gillies and Piron. [55] I find that the Plaintiff is entitled to a bonus, based on the Variable Compensation Plan proposed by the Defendant in Novemberof 2021, which was a flat rate of $5,000 from August 1 to October 31, then based on a target-based system from November 1, 2021 to thePlaintiff’s termination on January 13, 2022. The amount for the target-based period will be determined based on the Plaintiff’sperformance during that time. Aggravated Damages [56] The Plaintiff claims aggravated damages based on the manner of her dismissal.

The Plaintiff argues that the manner of herdismissal and the Defendant's breach of the obligation of good faith, attracts an award of aggravated damages. In particular, that herdismissal occurred while she was housesitting abroad, left her scrambling to secure alternate medical insurance coverage, andexacerbated her known illness.

The Plaintiff further argues that the Defendant’s actions (suggesting she had resigned, or should be placedon paid or unpaid leave) were in bad faith, unfair, and caused her significant distress. [57] The Defendant argues that aggravated damages are an exceptional remedy and only justified where, per Honda Canada Inc. v.Keays, 2008 SCC 39 at para. 59 [Honda], (

a) an employer engaged in conduct that was unfair or in bad faith; and (

b) the manner ofdismissal caused the employee mental distress. An employee seeking to recover aggravated damages must establish that they sufferedcompensable damages as a result of the breach: Lau v. Royal Bank of Canada, 2017 BCCA 253 at para. 17 [Lau]; see also Goetz v.Instow Enterprises Ltd., 2021 BCSC 709 at para. 109. [58] Conduct found to have constituted a breach of the employer's duty of good faith and fair dealing includes being untruthful,misleading or unduly insensitive in the course of dismissal, or attacking the employee's reputation with declarations made at the time ofdismissal: Wallace v.

United Grain Growers Ltd., (SCC), [1997] 3 S.C.R. 701 at para. 98; Honda, at para. 59. [59] A plaintiff must prove something beyond the normal distress and hurt feelings that invariably accompany the loss ofemployment: Cottrill v. Utopia Day Spas and Salons Ltd., 2018 BCCA 383 at paras. 14-15 [Cottrill]; Quach v. Mitrux Services Ltd.,2020 BCCA 25 at paras. 26-27. In Cottrill, the Court of Appeal found the trial judge had erred in an award of aggravated damages, as theplaintiff had not provided sufficient evidence to establish her claim of mental distress.

The Court stated, at para. 18, that the evidencerequired to support an aggravated damages claim must show “a serious and prolonged disruption that transcends ordinary emotionalupset or distress”. [60] Conduct can be insensitive, but not amount to the “unduly insensitive" conduct required to ground a claim in aggravateddamages: Sitton v. Wheaton Pontiac Buick GMC (Nanaimo Ltd.), 2010 BCSC 353. The fact that an employer could have handled thetermination better does not, in itself, ground an aggravated damages claim: at paras. 79, 81, 86. [61] In Vernon v.

British Columbia (Housing and Social Development, Liquor Distribution Branch), 2012 BCSC 133 at paras. 211,373, 377, the employer terminated a long-time employee at a meeting by calling the employee's conduct shameful and saying that theemployee was an embarrassment. The employee was given a short timeline to resign or be put on unpaid leave pending their termination.The employee was not formally terminated until a month later.

Cumulatively, this conduct warranted an award of aggravated damages. [62] The Defendant argues that they acted in good faith, and that the manner and circumstances of the Plaintiff’s termination do notrise to the level of aggravated damages. The Defendant appeared, understandably, to flounder in their initial response to the Plaintiff’sPowerPoint presentation.

The PowerPoint presentation presented mixed messages that the Plaintiff was unhappy and wanted to leave herrole with the company, and conversely, wanted to stay with the company, but in a role she suggested they create for her. [63] The Plaintiff said she was “blindsided” by the termination because she had been a high performing Sales Manager. The Plaintiffsays she has suffered anxiety and has had to go on medication as a result of her termination.

The Plaintiff says that the Defendant toldformer colleagues she had resigned causing her embarrassment. [64] I find that the Defendant’s conduct in the manner of termination does not rise to the level of conduct required to support a claimof aggravated damages. In the two weeks after the PowerPoint presentation, the Defendant struggled with how to respond. They were notunduly sensitive. I find that the anxiety the Plaintiff suffered was of the normal level for someone who has been terminated, has to searchfor alternative employment, and alternative health insurance.

Summary [65] I find that the Plaintiff’s period of employment is two years and nine months. I find that the Termination Provision is valid andenforceable and it adopts the standards in the ESA. Per s. 63 of the ESA, the amount of notice required is two weeks. [66] The Plaintiff is entitled to a bonus. The parties contemplated that the bonus was a significant part of the Plaintiff’s remunerationas a Sales Manager. The amount of the bonus shall be calculated based on the Variable Compensation Plan presented by the Defendant inNovember 2021.

[ 67 ] The Defendant’s conduct does not meet the standard necessary for aggravated damages. The Defendant initially struggled with how to respond to the Plaintiff’s PowerPoint presentation. I do not find that the Defendant acted in bad faith or was unfair or unduly insensitive in the manner of the Plaintiff’s termination. Costs [ 68 ] The results here are split. As the Defendant had more success in its arguments, per the fee scale for matters proceeding through the Fast Track Litigation process, the Plaintiff should pay to the Defendant 25% of costs set at $8,000, plus a similar percentage of disbursements, per R. 15-1 of the Supreme Court Civil Rules . “A. Walkem J.”