Pelletier v. Gosal Date:, 2011 BCPC 233

Citation: Pelletier v. Gosal Date: 20110907 2011 BCPC 0233 File No: S66669 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: BERNARD PELLETIER CLAIMANT AND: SARJ GOSAL DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.B. HICKS Appearing in person: B. Pelletier Appearing for the Defendant: K. Birch, Articling Student Place of Hearing: Surrey , B.C. Date of Hearing: July 26, 2011 Date of Judgment: September 7, 2011 [ 1 ] The claimant, Bernard Pelletier, was employed by the defendant as a legal assistant and paralegal for 16 months beginning February 1, 2008.

On June 3, 2009, he was terminated without cause and given two weeks pay in lieu of notice and a sum for vacation entitlement. Mr. Pelletier’s claim is for reasonable notice which he says is six months plus enhanced vacation pay. [ 2 ] The defendant acknowledges Mr. Pelletier is entitled to enhanced notice beyond the two weeks provided but says that this period should be for two months only. [ 3 ] Mr. Pelletier’s gross monthly salary at the time of termination was $6,000.

To bring his claim within the monetary jurisdiction of this court, he seeks $24,000 being equivalent of 4 months notice and $1,000 for enhanced vacation pay. [ 4 ] Mr. Pelletier is 56 years of age. He received a B.A. Degree in Industrial Relations from Laval University in 1979. After working for Canada Post for 9 years during which he became involved in union-related grievance proceedings, he completed the two-year legal assistant program at Capilano College. He then held a temporary position doing legal research at the Worker’s Compensation Board in 1993.

In 1994, he joined the law firm of Patterson & Associates. He worked in the specialized area of Workers’ Compensation Board matters. The plaintiff came to know the defendant at that firm because the defendant practised in this area. In 1999 the defendant left Patterson & Associates and began his own firm specializing in WCB work. In or about 2001 or 2002, Mr. Pelletier left Patterson & Associates. He did some short-term work for a union and some work for one individual client with a claim before the Board. In 2003 and 2005, Mr.

Pelletier appeared before the Workers’ Compensation Board to advocate on two occasions. Beyond this he provided services on a contract basis exclusively to the defendant. This work came to occupy him full time to the point that he declined other work from unions and an opportunity to do further work offered to him by Patterson & Associates. [ 5 ] During these years the defendant’s business grew to include a second lawyer and additional support staff. [ 6 ] In February 2008, Mr.

Pelletier approached the defendant to propose that he become an employee of the defendant’s firm rather than to continue on a purely contract basis. Mr. Pelletier says Mr. Gosal was happy to convert him to employee status and did so on a

verbal basis at the salary earlier noted, with the required deductions to be made by the employer, and with a review of his status to assess how things were proceeding after one year. Mr. Pelletier appears to have viewed this caveat to be in the nature of a performance review, consistent with Mr. Gosal’s practice among his staff. [ 7 ] In his evidence Mr. Gosal contradicted Mr. Pelletier. He said that he was resistant to hiring Mr. Pelletier as an employee. He was not comfortable with Mr. Pelletier working from his home. Nothing really turns on this, however, because Mr. Gosal went ahead and hired Mr.

Pelletier and continued that employment relationship without criticism beyond the one-year review point. [ 8 ] Despite the change in status, Mr. Pelletier’s working circumstances did not change. He had previously worked exclusively from his home and he continued to do so. He collected files from the firm office every two weeks and he drafted written submissions to the Workers’ Compensation Review Tribunal based on the file material. Mr. Gosal said that this is a review stage which seldom hears oral submissions and has a very high rate of rejection of review requests. The submissions prepared by Mr.

Pelletier were reviewed by Mr. Gosal and then formatted on the firm letterhead for delivery to the tribunal. [ 9 ] Mr. Pelletier had very little involvement with a second body, the Workers’ Compensation Appeal Tribunal. This is a body which frequently hears oral submissions and which Mr. Gosal appears before several times each week. [ 10 ] Mr. Pelletier might occasionally ask a staff member to obtain a piece of information but otherwise he had no administrative, managerial or decision-making responsibilities. He did not have direct dealings with clients. [ 11 ] Although Mr.

Pelletier understood his submissions were generally accepted with only cosmetic or grammatical changes, Mr. Gosal said that Mr. Pelletier tended toward a more aggressive tone in the draft submissions and he reviewed the drafts with this in mind, tempering them to a level that he was comfortable with. In my view little turns on this issue because Mr. Gosal used Mr. Pelletier’s services for approximately eight or nine years and was familiar with the style. There is no suggestion Mr. Pelletier’s work product played any role in his termination. [ 12 ] During 2008 Mr. Pelletier took 17 days off as vacation time.

He requested those days off and no issue was taken with those requests. It is on this basis that he claims enhanced vacation entitlement. [ 13 ] Mr. Pelletier says that he was always assured that there was plenty of work. He understood the employment was open-ended and long-term. There is no suggestion on the evidence that the passage of one year led to any kind of negative review of his performance or other work circumstances. Mr. Pelletier had seen the firm expand during his years as a contractor and felt that he had had a part to play in that success. [ 14 ] Mr.

Pelletier acknowledged that he sought a raise from Mr. Gosal not long before his termination. [ 15 ] On June 3, 2009, the defendant told the plaintiff that his services were no longer required and he was terminated. Mr. Gosal stated in evidence that he decided to take the firm in a different direction, one in which the staff would work from the office and have greater involvement with the clients. He pointed out that his clients could not afford expensive legal services.

He had just increased his own hourly rate from $150 to $175 per hour, which he said was the first increase in his hourly rate that he had ever instituted and that Mr. Pelletier had asked for a share of that increase. Mr. Gosal stated that he felt he could not meet Mr. Pelletier’s salary expectations. [ 16 ] Mr. Pelletier has given evidence about efforts he made to find other work in his specialized field. He said that his work as a paralegal had been exclusively in the Workers’ Compensation Board area and so he did not have an easily transferrable skill set.

He contacted unions, some lawyers and several employers who had practices or who might potentially have need of a person with his knowledge and skills in this area. He pointed out his bilingual facility. Mr. Pelletier was cross-examined about law firms which he approached and those which he did not. Exhibit 1, pages I through W are emails documenting Mr. Pelletier’s efforts. He also made some telephone calls. [ 17 ] The only ads which Mr.

Pelletier saw for work in his area were those placed by the defendant, one shortly after he was terminated and one in January 2010. [ 18 ] Having not achieved success in finding employment by December 2009, Mr. Pelletier investigated the prospects of moving to Mexico and entering the real estate business there. Although he travelled to Mexico to investigate that possibility, it was not successful. Mr. Pelletier continued to seek work here without success. [ 19 ] Mr. Pelletier explained that he did not re-engage as a contractor as he had done before joining Mr.

Gosal’s firm as an employee because he did not have clients or the financial wherewithal to get such a business up and running. Unions, lawyers and other businesses which he approached all had the services which they required already in place. One potential employer invited Mr. Pelletier to contact him again in June of 2010. Mr. Pelletier did not do so because by then his circumstances had changed. [ 20 ] In May 2010, Mr. Pelletier sold his condominium here and moved to Mexico. In September of this year, he will open a bar and restaurant business in Mexico with a partner. [ 21 ] In his evidence Mr.

Gosal pointed out that most workers and employees appearing before the Workers’ Compensation Tribunals are represented by non-lawyers, often from the Workers’ Advisers Office or the Employers’ Advisers Office. This is permitted under the Legal Profession Act . Mr. Pelletier had appeared in this role in the past. However, he did not do so when working for Mr. Gosal who preferred to provide the services to his clients himself. [ 22 ] A small percentage of workers retain lawyers to assist them and Mr. Gosal was one of a small group of lawyers who did such work for employees.

His practice was almost exclusively in that area. [ 23 ] The central issue in this case is the determination of a reasonable notice period following termination of Mr. Pelletier’s employment. No issue is taken with the proposition that his termination was wrongful based on just two weeks pay in lieu of notice.

The defendant has acknowledged that he believes an appropriate notice period is two months. [24] A

summary of the principle factors to be considered in these circumstances was set out by the Ontario High Court in Bardal v.The Globe and Mail Ltd. (1960), (ON SC), 24 D.L.R. (2d) 140 at page 145. At paragraph 21, the court stated thefollowing: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice mustbe decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant,the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of theservant. [25] That

summary has been adopted by courts in this province in cases such as Mackie v. West Coast Engineering Group Ltd., 2009BCSC 1775 , 2009 B.C.S.C. 1775 (see paragraph 4). In that decision, the court stated that the factors set out in Bardal “...mustbe weighed in the particular circumstances of each case and no one factor should be given disproportionate weight.” [26] The determination of a fit notice period is not to be resolved by the application of a mathematical rule of thumb or formula but bya balanced consideration of these factors in the particular circumstances (see Mackie v.

West Coast, supra, at paragraph 38). [27] I have reviewed all of the cases provided by both parties. The cases provided by the claimant are recent decisions of superiorcourts in this province which include reference to the applicable principles noted earlier and compendiums of other decisions from courtsin British Columbia. The authorities provided by the defendant are all from other provinces.

I found the claimant’s cases the mostuseful. [28] I note the trend in British Columbia is to reflect a notice period in which the character of the work, either a senior position orjunior position is not given undue weight in the absence of an evidentiary foundation to establish that factor to require predominance in aparticular circumstance. The effect of this is to enhance notice periods for junior positions to ensure that people holding those positionsare treated equally (see Bavaro v. North American Tea, Coffee and Herbs Trading Co. Inc., 2000 BCSC 419 , 2000 B.C.S.C.419 at paragraph 16). [29] Mr.

Pelletier did not hold a managerial, supervisory or decision-making position and did not oversee a budget. He did, however,bring a particular skill, knowledge and extensive experience in Mr. Gosal’s specific practice area. His work was well known to Mr.Gosal. They had worked together at Patterson & Associates and Mr. Pelletier had provided virtually full time work on a contract basis toMr. Gosal before Mr. Gosal agreed to hire him as an employee. There is nothing to suggest that his work was not of value to Mr. Gosal. In fact the evidence is that Mr.

Gosal advertised to hire a trained paralegal or legal assistant just days after terminating Mr. Pelletier(exhibit 1, page H). [30] I conclude that although Mr. Pelletier did not hold a management or supervisory position, his services and skill were neverthelesssignificant to Mr. Gosal. The evidence does not support a moderating of the notice period based on the character of his employment. [31] Mr. Pelletier has stated that his ability to find other employment was restricted by the narrow focus of his practice experience inworkers’ compensation matters. [32] Mr.

Pelletier substantially focussed his job search efforts to potential employers working in that area. It would be entirelyexpected that he would search for new employment in the area he knew best. However, Mr. Pelletier did himself a disservice by notexpanding his search parameters to include other areas of legal practice. Although there is no evidence presented about job opportunitiesin other practice areas, I believe I can take notice that paralegal services are utilised beyond workers’ compensation matters. Nosignificant effort was made by Mr. Pelletier to search in those areas.

He has not explained what, if any, enquiries he might have made todetermine the courses or other training that he might undertake to make himself an attractive candidate for other paralegal positionsbeyond the relatively narrow scope and relatively small number of potential employers practising in the workers’ compensation field. [33] Mr. Pelletier was about 54 years of age at the time of his termination. Despite his age, I would view Mr. Pelletier’s experience tobe a potentially valuable asset to an employer.

On the other hand, that experience might come with a salary expectation which coulddiscourage a potential employer. No evidence was led in this area. [34] No two cases are precisely alike. I found references to the following cases in the materials provided to be helpful in assessingMr. Pelletier’s circumstances. In Bavaro v. North American Tea, supra, a 35-year old production manager earning $60,000 andterminated after 13 months was awarded six months notice. MacLean v.

Newnes, 2001 BCSC 1515 , 2001 B.C.S.C. 1515,involved a 48-year old library record systems coordinator with no management or supervisory duties terminated after 29 months whowas awarded six months notice. Shin v. TBC Teletheatre B.C., 2009 BCCA 18 , 2009 B.C.C.A. 18 involved a 44-year oldmarketing manager terminated after one and one-half years who received six months notice. Shore v. Ladner Downes (1997), (BC SC), 28 C.C.E.L. (2d) 151 (B.C.S.C.) involved a 32-year old computer programmer employed for nine months.

Hereceived 5 months notice. [35] In considering the factors earlier referred to in the circumstances of Mr. Pelletier, I have determined that he is entitled to fourmonths notice. [36] In reaching this conclusion I have taken account of Mr. Pelletier’s failure to mitigate his loss bearing in mind the unnecessarilynarrow search parameters Mr. Pelletier used. I have factored against this his age and experience. In my view no further factoring ofmitigation into the outcome is required. [37] On this basis, Mr.

Pelletier would be entitled to an award of $24,000 less $2,836.36 by way of the two weeks notice provided ontermination. Mr. Pelletier would be entitled to judgement against the defendant in the amount of $21,163.64 reflecting a proper noticeperiod.

[ 38 ]

Section 58 of the Employment Standards Act entitles Mr. Pelletier to at least 4% of his total wages as vacation pay. The evidence is not sufficient to justify an enhanced entitlement beyond this level. He is entitled to $960.00 vacation pay based on a 4-month notice period. He will have judgment in the total amount of $22,123.64. [ 39 ] Mr. Pelletier is further entitled to the filing fee of $156 and the service fee of $60 totalling $216. [ 40 ] The defendant has proposed payment be made in four equal instalments, no matter what the notice period is determined to be.

I therefore order the defendant pay the judgment in four equal instalments of $5,584.91. The first payment is to be made on October 1, 2011, and thereafter the same amount on the first of each month until fully paid. ________________________________ The Honourable Judge M.B. Hicks Provincial Court of British Columbia