IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | McLeod v. Lifelabs BC LP, |
| 2015 BCSC 1857 |
Date: 20151014
Docket: S150008
Registry:
Vancouver
Between:
Barbara McLeod
Plaintiff
And
Lifelabs BC LP and
Lifelabs BC Inc.
Defendant
Before:
The Honourable Madam Justice Duncan
Reasons for Judgment
Counsel for the Plaintiff: | A. Barker |
Counsel for the Defendant: | G. Heywood B. Hollis |
Place and Dates of Trial: | Vancouver, B.C. June 29-30, 2015 July 2, 2015 |
Place and Date of Judgment: | Vancouver, B.C. October 14, 2015 |
Table of Contents
The Plaintiffs Efforts at Mitigation
[1]
The plaintiff, Barbara McLeod, was employed by the defendant, Lifelabs
BC LP and Lifelabs BC Inc., for 25 ½ years when she was terminated without
cause from her position as process improvement manager.
[2]
There are three issues for determination:
1. The notice period to which the plaintiff is entitled;
2. Whether the plaintiffs efforts to mitigate her damages
were reasonable; and
3. The amount of damages to which the plaintiff is entitled.
The Plaintiffs Background
[3]
The plaintiff is 50 years of age. After high school graduation she
trained as a medical lab technician. She started work in that field in 1986 at
Moose Jaw Hospital. The following year she moved to British Columbia to work as
a medical lab technician at Cowichan District Hospital. On June 26, 1989, the
plaintiff began working for Medical Arts as a hematology medical technician.
Medical Arts eventually became part of Lifelabs, the defendant. It was not
contested by the defendant that the plaintiff was continuously employed by the
defendant or its predecessors from June 26, 1989.
[4]
In 1990, the plaintiff became supervisor of hematology. Six years later
she became operations manager for half of Vancouver Island, half of the Lower
Mainland and all the couriers in the lab system. In 1998, she became operations
manager for Vancouver Island, which had 250 staff, and was responsible for
capital acquisitions and equipment requirements. The plaintiff took a
leadership role in labour relations, representing management at the Labour
Relations Board during a certification process.
[5]
In 2005, the plaintiff earned a designation in Lean Six Sigma, a system
focussed on eliminating or reducing waste, duplication or variation in work
processes. In 2008, she became operations manager of client services,
overseeing five supervisors and about 250 employees. The plaintiff was
responsible for ensuring that quality, safety and all aspects that make for a
good work environment flowed through the supervisor group. The plaintiff
continued to participate in labour relations matters, representing management
in the negotiation process through four out of five collective agreements.
[6]
In 2009, the plaintiff obtained her Masters Certificate in Project Management.
[7]
In 2012, the plaintiff moved to senior manager of line services excellence.
She had no direct reports but was tasked with looking for best practices and
continuous improvement through working with managers. That position had a
national focus and she worked with two counterparts in Ontario to implement
national initiatives. The plaintiff worked on implementing the patient
appointment and wait time system to give patients a better experience through
providing online booking and giving front end staff a more predictable
workload.
[8]
The plaintiff spent most of her time in British Columbia, but travelled
to Ontario as required on national projects. She was involved in work flow
reviews in various patient centres in the province. She was project manager for
Oceanside Integrated Health Centre which required relocating a centre in Parksville
to another location to integrate services. The plaintiff dealt with the media
on behalf of the defendant in the context of a privacy breach.
[9]
The plaintiffs last position with the defendant was as process
improvement manager. She provided a support function for other managers. She
was senior to them in her experience with the defendant although the senior
designation was removed from her title with this position. The plaintiff had no
one reporting to her directly as she did formerly. She said she loved her work
and was happy to continue as process improvement manager until she was 60 or
65.
[10]
In 2005, when the plaintiff was facing change and losing her direct
reports she applied for, and was offered, a position with Vancouver Island
Health but chose to stay with the defendant. She also applied for two jobs in
September 2014. The plaintiff did not want to leave her job but was curious
about opportunities outside her current employment. This was prompted by
unexplained changes to her traditional work portfolio as well as the fact she
did not undergo an annual performance evaluation.
[11]
One of the jobs the plaintiff applied for in the fall of 2014 was
program manager at Broadmead Care Facility and the other was manager for
Cowichan District Hospital. At the time of trial she had only heard back from
one of the two potential employers. She did not know the salary for the
Broadmead job but that did not preclude her from applying. The plaintiff found
the two jobs postings on the websites for the respective organizations.
The Plaintiffs Remuneration
[12]
At termination the plaintiff earned an annual salary of $108,357.79 and
the defendant matched 6% of her salary through RRSP contributions. The
defendant also paid the plaintiffs Medical Services Plan premiums of $72 per
month and provided her with extended health and dental coverage.
[13]
In addition to her salary and benefits, the plaintiff received an annual
bonus or short-term incentive plan (STIP) from the defendant from 2000 until
her dismissal. In 2014, the bonus was $11,251.29. She regarded it as a
consistent and significant portion of her remuneration.
The Termination
[14]
The plaintiff met with Michelle Hings and Tina Jansen in Victoria on
November 12, 2014. She assumed they were coming to discuss some data she had
compiled or meet with an employee the plaintiff had been dealing with on a
discipline issue. Ms. Hings informed the plaintiff she was going to be
laid off and her last day would be December 31, 2014. The plaintiff was offered
the option to stay at work if she wished. She did not want to leave things in
the hands of someone else so she decided to keep working.
[15]
While the plaintiff entertained suspicions about her employment
situation through 2014 due to changes that had taken place, she was still
devastated. She took pride in working for the defendant and had been with the
company more than half her life. The plaintiff said the defendant had been very
good to her and had helped her to develop into a manager. She understood the
decision to let her go was a business decision.
[16]
The plaintiff was in a car accident on November 24. She sustained
whiplash which prevented her from working full time. After the accident she
worked not less than 5.5 hours per day, a change from her formerly long hours.
The Plaintiffs Job Search
[17]
When the defendant terminated the plaintiff it offered her coaching
sessions with Right Management, an outsourcing company that assists people who
have been displaced or dismissed in obtaining skills to make them more
marketable, assist them with resumes and cover letters and provide them with
other resources to find a new job. The plaintiff began working with Right
Management around November 24. She completed an online skills assessment and
obtained resume coaching in January 2015 to bring her resume up to industry
standards.
[18]
The plaintiff attended an online career expo hosted by Right Management,
and used the companys website to check for job postings. She learned to look
for new opportunities through various online methods such as LinkedIn, craigslist,
Kijiji and Monster as well as on individual websites for BC Transit, BC Ferries
and others. The plaintiff looked for senior management positions in health
care, but looked outside that industry when the skill set in a posting matched
what she had to offer. She did not see a lot of positions on Vancouver Island
advertised through Right Managements website.
[19]
The plaintiff prefers to stay in Victoria or at least on Vancouver
Island. Her son is in Victoria, her sister is in Duncan and she has an aunt in
Campbell River as well as many cousins. The plaintiff knows she may need to
reach out further geographically if her job search on Vancouver Island is
unsuccessful.
[20]
The plaintiff kept a log of jobs she has applied for. She looked more
intensively for work as of April 1 because it is the start of the governments
new fiscal year and she felt senior positions waiting for funding are more
likely to be posted then. As well, prior to April 1 she was still dealing with
the after effects of the car accident and it was painful to spend a lot of time
on the computer.
[21]
In addition to applying for jobs online, the plaintiff spoke to several
people from her former employment, including three doctors and a manager along
with someone who works for the Vancouver Island Health Authority. She sent her
resume to two executive recruiting firms at the suggestion of a former co-worker.
[22]
In terms of following up on the applications she made, the plaintiff
followed the instructions on posting websites to the effect that only
successful candidates would be notified. She felt that was consistent with the
advice she had received from Right Management.
[23]
The plaintiff is not optimistic about her prospects but is hopeful
something will come up. She feels that once someone is over 50 it is difficult
to find work, particularly to break in to senior management at another
organization.
[24]
Counsel for the plaintiff asked her to comment on a report prepared by
Bruce Gillespie, the defence mitigation expert. Mr. Gillespie identified a
number of potential employment opportunities that he thought might be suitable
for the plaintiffs skill set to support his opinion that she should have been
able to find work within about three months of termination.
[25]
The plaintiff articulated a number of reasons she did not pursue the
positions identified in Mr. Gillespies report, which he found through
data mining software. Some of them involved technical testing positions and she
had not been on the testing bench for nearly 18 years so was not qualified to
either test or supervise testing. In addition, none was a senior management
position and all involved substantially lower salaries than what she had been
earning. Some of the jobs were in Vancouver. Some required either a Bachelor of
Science or a Masters degree, and she did not have either. There were several
postings requiring computer expertise in informatics, which the plaintiff does
not have.
[26]
On cross-examination, the plaintiff agreed she only applied for three
jobs in the first four months after termination. She viewed the opportunities
available to her at that time as limited. The plaintiff agreed the number of
job applications she made increased just before examination for discovery on
May 22. She attributed this to more government opportunities in the new fiscal
year.
[27]
Counsel for the defendant pointed out to the plaintiff one job the
defence expert found and noted in his report. It was for a clinical researcher
with the BC Cancer Agency, a job the plaintiff admittedly missed in her job
search. The plaintiff agreed if she had been aware of the job she would have
applied for it. Further, she acknowledged she had the expert report before the
examination for discovery. While the posting stated a preference for a Masters
degree, the plaintiff agreed she had the skills listed in the job description.
There was another job in Comox identified in the expert report which the
plaintiff knew of by the time of examination for discovery but could not
explain why she did not apply.
[28]
The plaintiff was extensively cross-examined on her networking efforts
after termination. She could not network with people who worked for the
defendant until her termination was announced at the end of December. After
that time she met with three doctors and several other people, but not with any
potential employers or former employees of the defendant now working with the
Vancouver Island Health Authority. She agreed Right Management told her
networking was important but did not recall being told to arrange up to three
meetings per week on an ongoing basis as part of her job search.
[29]
The plaintiff agreed that with her management training and project
management certificate she could look outside the health area to management
generally, but she was mostly focussed on jobs in health care. She acknowledged
that by not considering a move to the Lower Mainland she was reducing her
opportunities but wants to remain on Vancouver Island if possible for family
reasons.
[30]
Counsel for the defendant suggested to the plaintiff that she ignored
the advice of Right Management to follow up on applications. The plaintiff did
not feel it was helpful at the senior manager level to call potential employers
and sound needy but ultimately agreed it would have been useful to contact
people listed as contacts for jobs.
[31]
Defence counsel took the plaintiff through a variety of postings in the
expert report and asked her why she had not applied for them. Her explanations
were similar to those given on direct examination: she felt she did not have
the industry experience or education the posting listed. The plaintiff did
agree that she applied to be a senior project manager to lead and manage large
ministry IT projects without a computer background. She also applied to be the
director of fleet management in response to a posting that listed an academic
requirement she did not have. She said they listed it as ideal and not required.
The Bonus Program a.k.a. STIP
[32]
The plaintiff agreed the terms for STIP potentially changed every year
and she had to sign off on the details for the coming year. She was also aware
that between 2009 and 2014 some of the terms changed and this was noted in the
document she was provided with. She agreed the terms and conditions of STIP
were contractual and one of the requirements was that she be employed at the
time of payout.
[33]
The fiscal year end for STIP is October 31. The plaintiff understood if
she was terminated, the STIP would be pro-rated and to be eligible for STIP she
had to be an employee for three months of the fiscal year. She was terminated
on December 31, 2014 so did not work three months of the 2015 fiscal year. She
did not pay much attention to STIP each year and never took the opportunity to
seek out more information about it.
The Defence Mitigation Expert
[34]
Bruce Gillespie gave expert opinion evidence on job searches, employment
availability and related issues. His report was focussed on the plaintiffs
efforts at mitigation. In Mr. Gillespies opinion, the plaintiff had many
employment opportunities available to her within her area of specialty or where
her skills were easily transferable. He found there were many opportunities
available to her for several months and likely for months to come, based on his
analysis of employment trends and job postings.
[35]
Mr. Gillespie thought the plaintiff had excellent breadth in job
scope and strong credentials, based on her experience in both technical
managerial and project roles than most in her category. In his opinion, based
on his observation of job searchers he has observed or worked with during
significantly worse market conditions over the past 30 years, a moderately
well-managed job search yielded employment offers in a three to five month
period, though there is a period of adjustment immediately after termination
which should be factored in to that analysis.
[36]
Mr. Gillespie testified Right Management would have emphasized
the importance of setting up frequent networking meetings and face to face
meetings with qualified referral sources. I put that comment in quotation marks
because nobody from Right Management testified about the companys dealings
with the plaintiff and the plaintiff did not agree on cross-examination that
she was advised by Right Management to network as extensively as Mr. Gillespie
recommended.
[37]
Mr. Gillespie also recommended face to face contact with key
recruiters, a consistent review of opportunities via the internet and
responding to job advertisements and postings with the objective of setting up
face to face meetings. He opined the plaintiff needed to move away from
sporadic low value activities, such as virtual job fairs and random searching
of the websites of major employers, to those that would engage others in a face
to face setting. Essentially, Mr. Gillespie said most jobs are in the
hidden market and are only available to people who network and go outside
traditional job search methodologies.
[38]
On cross-examination, Mr. Gillespie explained that he used a data
mining program to search for the jobs he included in the report both in the
table and the appendix to the report. It is a subscription-based service so it
is not available free of charge to job seekers. He acknowledged that on close
examination, some of the positions he listed were duplicates, either because
they were copied twice by accident or because the data mining program used two
sources to get one posting. As an example, data mining could locate a job
through an employment website as well as directly through the organizations
website. Mr. Gillespie did not agree that this affected his report, as he
probably underestimated the number of jobs available in any event.
[39]
Mr. Gillespie testified there were two fluctuations in job
availability, one at Christmas and one in the summer period. The provincial
government has been under a hiring freeze for a number of years. He did not
agree there could be a correlation between the fiscal year and postings and he
did not agree there were any postings in the provincial government which were
available to internal applicants only, although internal candidates might have
a better level of viewing jobs than external candidates. He did not see the
plaintiffs age as a negative. He is familiar with studies done in the area
which conclude there is no significant impact on employment until the age of
60. Those studies were not in evidence before me.
[40]
Many of the postings Mr. Gillespie listed in his report were for
non-supervisory positions. He included reference to them because in his view,
the job you want is not always there and you may have to take something at
lower pay and a lower classification level. Mr. Gillespie agreed he
included a job in his report that paid $14.90 per hour, substantially less than
the plaintiff earned. He justified its inclusion to substantiate his conclusion
that there are jobs in the plaintiffs sector but ultimately he agreed it was
one job he could have filtered out. His intent was to look at activity in a
sector rather than compensation.
Michelle Hings
[41]
Ms. Hings is the director of client services for the defendant. The
defendant is a national company and the largest provider of diagnostic testing services
in British Columbia. It is the fourth largest provider of those services in the
world. The corporate structure includes 50 to 60 directors in Canada, 9 or 10
senior vice presidents and then the CEO.
[42]
Ms. Hings has known the plaintiff for over a decade in various
roles. Latterly the plaintiff was one of Ms. Hings direct reports as the
process improvement manager. Managers are below the director level.
[43]
The plaintiff did not have direct reports of her own as process
improvement manager, although in past roles she has had people reporting to
her. She provided assistance for other managers in various capacities and
worked with Human Resources. The plaintiff was terminated because the defendant
bought BC Biomedical Laboratories and integrated the two companies. Many of the
plaintiffs functions were to be moved to other departments.
[44]
Ms. Hings testified the defendant does not have senior managers.
Directors are on the senior leadership team and managers are the next level
down. She acknowledged agreeing at examination for discovery that the plaintiff
was like a senior manager and senior to the other managers in the
organizational structure. She explained the plaintiff was a senior manager
until 2012 and then became a process improvement manager. Ms. Hings
thought it was a title change rather than a demotion.
[45]
Ms. Hings agreed the annual bonus document did not specify a person
might be ineligible for a bonus if he or she was terminated. The board has sole
discretion over the bonus plan in terms of how much people will get and how it
is administered. The current plan is more or less the same as the 2014 plan,
with a few changes. All managers would get different bonuses based on the
personal performance portion of the annual bonus document.
Reliability and Credibility
[46]
Counsel for the defendant urged me to find the plaintiffs credibility
was suspect. He cited a number of examples, such as the plaintiffs surprise at
being terminated when she had detected changes in her responsibilities and had
actually looked for other jobs while still in the defendants employ. Counsel
also pointed out the inconsistency in the plaintiffs account of which
employment websites she accessed along with other similar considerations.
[47]
Overall I found the plaintiff gave her evidence in a credible and
forthright manner. While there were discrepancies in her account of which
employment websites she had accessed and a pronounced spike in her job search
around the time of examination for discovery, I conclude that she gave an
honest and reliable account of her work history, her termination and the
resulting job search.
[48]
As to the defendants witnesses, while I found Ms. Hings was
credible, she was caught in an inconsistency concerning whether the plaintiff
was a senior manager or simply a manager. It was clear from the plaintiffs
employment history that at one point she had been called a senior manager. That
title was removed during reorganization. Ms. Hings tried to downplay the
significance of the senior manager designation but she was clearly
uncomfortable when confronted with the inconsistency in her evidence from
examination for discovery on this point.
[49]
I found Mr. Gillespies expert report at first blush supported the
defence contention that there were dozens of jobs available for which the
plaintiff was qualified. After cross-examination, however, it is clear Mr. Gillespie
did not take care to ensure that duplicate postings or jobs which were clearly
unsuitable for the plaintiff, either due to the low wage or to her lack of
qualifications, were culled from the report. I do not find the report was
calculated to make it look like there were more jobs for the plaintiffs
qualifications than was actually the case, but the duplication and lack of care
reduce the weight I might otherwise put on Mr. Gillespies opinion and his
evidence at trial.
Notice Period
[50]
In the absence of contractual terms concerning termination, an employee
is entitled to reasonable notice or pay in lieu of notice if she is dismissed
without cause. The amount of notice is case specific. There are four main
factors to consider in arriving at an appropriate notice period: the character
of the employment, the length of service, the employees age and the
availability of similar employment, having regard to the employees experience,
training and qualifications: Bardal v. Globe & Mail Ltd. (1960), 24
D.L.R. (2d) 140.
[51]
The plaintiff is 50. She believes her age will be a factor in securing
employment commensurate with her position with the defendant. This belief has
support in the jurisprudence, notwithstanding Mr. Gillespies optimism
that it is not difficult to find work until one attains the age of 60.
[52]
The plaintiff has worked for 25.5 years for the defendant. While she
lost the title of senior manager as a result of reorganization several years
before termination, the plaintiff was senior in her years of experience and
service to the other managers in the organizational chart. The fact that she
had no direct reports at the time of termination matters not, as her role was
to support the other managers, not front line supervisors as in the past.
[53]
The plaintiff seeks notice in the range of 20 to 24 months, citing a
number of cases involving individuals of roughly the same age and duration of employment:
·
Fraser v. Kelowna (City), 1993 CarswellBC 1192 (BCSC) – a
59-year-old manager with 23 years of service and a 60-year-old assistant
manager with 22 years of service were awarded 24 months notice, based on their
many years of service and level responsibility.
·
Bell v. Itzak Walton Killam Hospital for Children, 1986
CarswellNS 114 (NSSC) – a 54-year-old director of a hospital pharmacy with 26
years of service was awarded a notice period of 24 months.
·
Halliday v. Hanover Kitchens (Canada) Inc., 1997
CarswellOnt 4642 (OSCJ) – a 55-year-old national sales manager with 28 years of
service was awarded a notice period of 24 months.
·
Miller v. ICO Canada Inc., 2005 CarswellAlta 397 (ABCQB) –
a 51-year-old special project supervisor with 30 years of experience was
awarded a notice period of 22 months based on the considerable responsibility
and authority that went with his position.
·
Trudeau-Linley v. Plummer Memorial Public Hospital, 1993
CarswellOnt 867 (OntCJ) – the 46-year-old plaintiff was awarded a 22-month
notice period. She was dismissed after 20.5 years, had broad knowledge of
hospital operations and there were limited options for employment in a similar
capacity as Quality Assurance Co-ordinator.
·
Bastow v. Woodward Stores Ltd., 1992 CarswellBC 887 (BCSC)
– a 57-year-old assistant store operations manager who had 23 years of service
was awarded a 20 month notice period. She had a highly responsible job with
doubtful prospects for finding similar alternative employment.
[54]
The defendant does not dispute the plaintiffs long and valuable
service, but maintains a notice period of 20 to 24 months is reserved for
individuals in higher managerial roles than the one the plaintiff held. The
defendant suggests 15 to 18 months is an appropriate notice period, less the
eight weeks notice the plaintiff received at the end of her employment by way
of working notice. The defendant has cited a number of authorities, of which
the following provide some assistance in this case:
·
Lacouvee v. McGavin Foods Ltd., [1993] B.C.J. No. 467
– the plaintiff was 54 years old at termination with 30 years of service. He
had significant supervisory responsibilities. The court awarded a notice period
of 18 months.
·
Polak v. Surrey Memorial Hospital Society, [1996] B.C.J. No. 131
– the 51-year-old plaintiff had 22 years of service when her employment was
terminated. She was an accounts receivable manager. The court found the
appropriate amount of notice to be 17 months;
·
Lewis v. Lehigh Northwest Cement Ltd., 2008 BCSC 542 – the
plaintiff was nearly 60, had been employed for nearly 26 years and was the
Manager, Process Computer Systems which involved substantial duties and
responsibilities at a cement plant beyond what the plaintiff in the case before
me had in her portfolio. He was awarded a notice period of 22 months.
·
Hooge v. Gillwood Remanufacturing Inc., 2014 BCSC 11 – the
57-year-old plaintiff was terminated from his position as production manager
after 36 years of service. He had a grade 12 education and spent his entire
working life in a particular sector of the wood manufacturing industry, which
limited his options for future employment. The notice period was 18 months.
·
George v. Cowichan Tribes, 2015 BCSC 513 – the plaintiff
was dismissed at age 55 after 33 years of service. She was in a supervisory
position over six managers who in term had teams of social workers. She also
had budget responsibilities. The court determined the notice period to be 20
months.
[55]
Taking into account the plaintiffs age at termination, her years of service
and the position she occupied at termination, I find a reasonable notice period
to be 18 months. The plaintiff did not have as broad a scope of duties,
including budget responsibilities, as other individuals of similar age who
received longer notice periods.
The Plaintiffs Efforts at Mitigation
[56]
The duty to mitigate is articulated in Forshaw v. Aluminex Extrusions
Ltd. (1989), 39 B.C.L.R. (2d) 140 at para. 17:
The duty to "act
reasonably", in seeking and accepting alternate employment, cannot be a duty
to take such steps as will reduce the claim against the defaulting former
employer, but must be a duty to take such steps as a reasonable person in the
dismissed employee’s position would take in his own interests – to
maintain his income and his position in his industry, trade or profession. The
question whether or not the employee has acted reasonably must be judged in
relation to his own position, and not in relation to that of the employer who
has wrongfully dismissed him. The former employer cannot have any right to
expect that the former employee will accept lower paying alternate employment
with doubtful prospects, and then sue for the difference between what he makes
in that work and what he would have made had he received the notice to which he
was entitled.
[57]
To satisfy the court that the plaintiff failed to mitigate, the
defendant must show not only that the plaintiff failed to take steps to
mitigate but also that had the plaintiff taken those steps he or she could
likely have found equivalent employment: Smith v. Aker Kvaerner Canada Inc.,
2005 BCSC 117, at para. 32.
[58]
The onus is not a light one and is not discharged simply by the
defendant cross-examining the plaintiff on possible jobs, such as the ones
unearthed by Mr. Gillespie using his data mining software. As I noted
earlier in these reasons, many of the job postings in Mr. Gillespies
report were duplicates. Some offered hourly wages far below what the plaintiff
earned at termination. Others were for jobs she was not currently qualified to
do, such as a lab technician. As the plaintiff said, she has not been on the
bench in a number of years and her experience and trained is geared more
towards the managerial side of things at this point in her career.
[59]
Mr. Gillespies opinion about what an individual looking for a job
should be doing was illuminating, and may well guide the plaintiff in her
future endeavours, but it reflected what someone would do in a perfect world
with a perfect job coach. It also reflected a level of intensity and a focus on
hidden jobs that was not apparent in the training the plaintiff received from
Right Management. Nobody from Right Management testified about what exactly the
plaintiff was instructed to do in order to find work. The defendant relies on
what Mr. Gillespie said Right Management would have told the plaintiff,
based on his experience.
[60]
The plaintiff took the training offered by the defendant through Right
Management, participated in online work expos and followed other suggestions
from her coach at Right Management. It took her some time to recover from her
job loss and the car accident that occurred very shortly after her termination.
The plaintiff was not obliged, at this early stage of her job search, to accept
a low paying job outside her preferred area of Vancouver Island. While she has
looked for work primarily in the health care field, she has also expanded her
horizons to jobs where her management training and credentials would serve her
well and perhaps make up for her lack of a graduate degree, which many of the
postings referred to by Mr. Gillespie listed as a preferred qualification.
In all the circumstances I am not persuaded the defendant has discharged the
onus of showing the plaintiff failed to mitigate.
Damages
[61]
Is the plaintiff entitled to the bonus?
[62]
The plaintiff received an annual bonus, or STIP, from the defendant
annually since 2000. The STIP contract stated:
TERMINATION OF EMPLOYMENT
In the case of termination of
employment due to voluntary resignation up to and including the pay-out date in
January 2015, all rights to the STIP award will be forfeited. In case of
termination of employment due to retirement or involuntary termination, the
STIP award will be prorated based on the actual number of full months worked
during the 2014 fiscal year, provided the participant had completed at least
three (3) full months of employment during the 2014 fiscal year. An employee
who is terminated in the 2014 fiscal year will have no eligibility for a STIP
award in any future fiscal year.
[63]
Identical language appears in the 2015 STIP contract.
[64]
The plaintiffs position is that she has received an annual bonus every
year since 2000. The amount of the bonus was about 10% of her base salary. If
she had continued her employment, she would have continued to earn bonuses. The
plaintiff argues the bonus language does not specify that a without cause
dismissal will terminate any entitlements to a bonus, even if it is a wrongful
termination. The termination date should be interpreted to mean the lawful termination
date, whether decided by the parties or by litigation, throughout the
agreement.
[65]
To put it another way, the plaintiff says if the defendant intended that
entitlement to STIP should end upon a wrongful termination, the language must
be clear and unambiguous and leave no doubt that a wrongful termination
extinguishes the right to a bonus. The plan is far from clear in this regard.
The plaintiff submits in the absence of express language ousting the
presumption that the plaintiff is entitled to whatever benefits she would have
received during the proper notice period, she should receive her future STIP
benefits.
[66]
The defendant submits the contractual language is clear. The plaintiff
was involuntarily terminated and would only receive a prorated STIP award based
on the actual number of months worked, provided she worked at least three full
months during the 2015 fiscal year. Since the plaintiff only worked two months
of the 2015 fiscal year – November and December 2014 – she is not entitled to
prorated STIP for 2015.
[67]
I find the contract language the defendant relies on to disentitle the
plaintiff from receiving STIP to be vague and inconsistent. While the drafters
may well have intended to disentitle employees who are wrongfully terminated
from collecting STIP during any notice period, whether a consensual one or one
determined by a court, the wording of the clause is far from ambiguous.
Terminated and termination are not defined terms and the qualifier
involuntary is used inconsistently.
[68]
In Gillies v. Goldman Sachs Canada Inc., 2000 BCSC 355, Skipp J.
determined a bonus was an integral part of the plaintiffs compensation, based
on four factors:
1. A bonus was received each year although in different
amounts;
2. Bonuses were required to remain competitive with other
employers;
3. Bonuses were historically awarded and the employer had
never exercised his discretion against the employee;
4. The bonus constituted a significant component of the
employees overall compensation.
[69]
A similar result prevailed in Szczypiorkowski v. Coast Capital
Savings Credit Union, 2011 BCSC 1376 where Mr. Justice B.D. MacKenzie
held that had the plaintiff not been wrongfully dismissed, he would have been
employed and entitled to his bonus. The bonus was awarded on the basis of a
five-year average for the duration of the notice period.
[70]
On the evidence before me, the plaintiff had routinely received a bonus
since 2000. The amount varied from year to year, but it was a significant
portion of her compensation. While the defendant reserved the right to
determine whether or not a bonus would be awarded, the plaintiff was never
denied one and there was evidence the employer was continuing with the STIP
plan for the next fiscal year. Finally, Ms. Hings did not necessarily
agree the bonuses were awarded to keep the defendant competitive, but common
sense dictates that a bonus in the range regularly awarded to the plaintiff
would be an incentive to someone with her qualifications.
[71]
I find the plaintiff is entitled to her bonus on a prorated scale to the
end of the 18-month notice period. The amount will be based on an average of
the last five years which counsel for the plaintiff has calculated to be
$11,505.88 or $958.82.
Summary
[72]
The plaintiff is entitled to the following damages based on an 18-month
notice period:
| $162,536.76 | based on $9,029.82 per month base base salary |
| 8,146.44 | based on $452.58 per month for RRSP contributions |
| 17,258.76 | based on $958.82 per month as prorated bonus |
| 1,296.00 | based on $72.00 per month for MSP premiums |
| 267.08 | for out-of-pocket expenses incurred to replace MSP |
TOTAL: | $189,505.04 |
|
[73]
The award is reduced by $16,670.43 for the base salary paid for eight
weeks and for the $4,640.68 lump sum paid for loss of benefits for a total of
$168,193.93.
[74]
Unless there are matters I am not aware of, the plaintiff is entitled to
her costs of trial at Scale B.
Duncan J.
__________________________________
The
Honourable Madam Justice Duncan