IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130626

Docket: S113391

Registry:
Vancouver

Between:

Terry Hilton

Plaintiff

And

Graham’s Farms
Ltd. and Greenslide Cattle Co. Ltd.

Defendants

Before:
The Honourable Mr. Justice Funt

Reasons for Judgment

Introduction

[1]            
The plaintiff, a 43-year-old forestry worker, was employed as a heli-rigger/bucker
by the defendant Greenslide Cattle Co. Ltd. (“Greenslide”) at the time of his
dismissal on May 12, 2010.  Greenslide’s business operations included
logging and cattle ranching.

[2]            
The plaintiff seeks damages for wrongful dismissal as well as for “mental
distress and aggravated and/or punitive damages”.

[3]            
The Court awards the plaintiff $31,970 for wrongful dismissal but no award
for aggravated or punitive damages.  The amount awarded is the amount otherwise
determined in lieu of an 18-month notice period, $48,000, after deducting
mitigation earnings of $16,030.

[4]            
The action was tried by way of a summary trial under Rule 9-7 of the Supreme
Court Civil Rules, B.C. Reg. 168/2009.  In making factual determinations,
I have been guided by our Court of Appeal’s reasons in Inspiration
Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d)
202.

Uncontested Facts

[5]            
The following facts have been admitted or are otherwise uncontested (I
have tracked the language used by the parties):

(a)       Greenslide
and Graham’s Farms Ltd. (“Graham’s”) were related corporations.

(b)       Graham’s
and Greenslide were in the business of logging and cattle farming.

(c)       
At all material times, James Graham was an officer and director of Graham’s
and Greenslide.  Mr. Graham was the person in charge of the logging
operations.

(d)       In
or about the summer of 1991, the plaintiff commenced employment with Graham’s as
a heli-rigger.

(e)       In
or about 2001, Greenslide assumed the operations of Graham’s, or Greenslide
became a common employer of the plaintiff with Graham’s, at which time the
plaintiff continued to work uninterrupted and in the same manner as he had with
Graham’s.

(f)        
At no time was there a written employment contract between the plaintiff
and the defendant.

(g)       In
or about the summer of 2002, the plaintiff’s position with one or both of Graham’s
and Greenslide was changed to a bucker.  As a bucker, the plaintiff bucked and
limbed logs and performed other related duties as required.

(h)       At
no time during his employment with the defendant did the plaintiff receive any
disciplinary action or warning letters for performance concerns.

(i)         
At no time prior to May 12, 2010 was the plaintiff put on notice that
his job with the defendant was in jeopardy.

(j)        
On May 12, 2010, the plaintiff was at work for the defendant when
he was involved in a disagreement with his co-worker, Anthony Ellis, arising
out of a motor vehicle accident in which they had been involved in 2002, and for
which compensation was promised to the plaintiff by Mr. Ellis (the
“workplace incident”).

(k)       
Mr. Graham witnessed the workplace incident.

(l)         
The plaintiff has a grade 10 education.  After high school, he
portered luggage for houseboats for a year and then worked for a shake-blocking
business for three years, after which he started his employment with Graham’s.

Findings of Fact

[6]            
As part of his affidavit filed in these proceedings, the plaintiff
described the events leading to his termination as follows:

a.       
On or about March 11, 2001, while I was travelling to work in
a vehicle being driven by my co-worker, Anthony Ellis, we were in a motor
vehicle accident (the “Accident”);

b.       
I suffered injuries in the Accident and to compensate for my injuries,
Mr. Ellis agreed in 2003 to convey a property to me which is located in
Malakwa, BC (the “Property”);

c.       
In reliance on Mr. Ellis’ agreement to convey the Property to me,
I performed work on the Property including, but not limited to, clearing
trees, putting in hydro, water lines and a water pump, and in total
I expended approximately $18,600 doing such work on the Property;

d.       
Approximately three months before my dismissal, Mr. Ellis told me
that he would not transfer the Property to me.  As such, I demanded
repayment of the roughly $18,600 that I had put into the Property;

e.       
From roughly February of 2010 through May 11, 2010, I worked
with Mr. Ellis in the course of my duties with the defendants, without
incident;

f.         
Approximately May 10, 2010, I had a conversation with
Mr. Graham about my situation with Mr. Ellis and how Mr. Ellis
refused to compensate me.  Mr. Graham, suggested that I prepare an
invoice for the amount that I spent on the Property, and give it to
Mr. Ellis.  Mr. Graham supported me in this regard;

g.       
I did prepare an invoice to Mr. Ellis as Mr. Graham encouraged
me to do;

h.       
In the three months since Mr. Ellis had refused to compensate me
for the Accident, I did not raise the issue with him, in anger or
otherwise.  I was disappointed that Mr. Ellis had refused to do what
he told me he would.  However, I am a shy, calm person and did not want to
engage in a confrontation;

i.         
I had not asked Mr. Ellis for the money before May 12, 2010;

j.         
The following events took place on May 12, 2010:

                                    
i.         
My co-worker, Aaron Pilliw, drove me from Malakwa to work at the
defendants’ shop;

                                   
ii.         
Mr. Graham and I drove out to the work site (approximately
20-25 minutes);

                                  
iii.         
We then arrived at the worksite, which was on a lower level than that at
which Mr. Ellis was already working;

                                 
iv.         
I got out of Mr. Graham’s truck and started the excavator
I was to operate and which needed to warm up for at least 15-20 minutes. 
I then went and sat in the truck to keep warm.  Mr. Graham had to go
to the upper level to fuel up, so I asked him if I could give the
letter to Mr. Ellis.  Mr. Graham then took me up to see
Mr. Ellis.  Mr. Graham and I went up and got out of the truck;

                                   
v.         
Mr. Ellis was parked beside the machine and got out of his vehicle
and was fuelling up his machine.  Roughly half-way through him doing so, I [gave]
him the invoice that I had prepared.  He read it while he was fuelling up
his machine.  After he had finished putting the gas cap on his machine, he
jumped off the truck and said the following, or words to the effect “$2,000
worth of labour, that’s bullshit.” Mr. Ellis was clearly agitated by the
invoice and he then walked over by Mr. Graham and I said to [Mr. Ellis],
“nice knowing you,” because I didn’t want to be friends with people like
that.  I then walked away and over to Mr. Graham’s truck (a grey and
silver Dodge), and I just walked back and forth, trying to calm my anxiety
and breathing;

                                 
vi.         
At no time did I swear at Mr. Ellis.

[7]            
Mr. Graham in his affidavit described his understanding of matters
leading to the workplace incident as follows:

11.       For some time prior to May 12, 2010, I had
been aware of an ongoing dispute between Terry and another employee named
Anthony Ellis (“Anthony”).  This dispute had nothing to do with their work at
Greenslide but I understood from Terry that it had to do with a motor
vehicle accident that had occurred some years previously.

12.       Leading up to the incident on May 12, 2010, Terry
told me that he was going to “kick Anthony’s head in”.  Terry told me that he
could not work with Anthony and that I should let Anthony go (which
I took to mean fire him) as he, Terry, had started working for me first.  I told
Terry that I had no cause to let Anthony go.

13.       On May 12, 2010 Terry arrived at the job site
and had with him a letter that he advised me was intended for Anthony.  He
asked to be taken to where Anthony was working in order to give the letter to
him.

14.       I told Terry to deal with it (the letter and the
dispute) after work but he refused to commence work unless and until he had
delivered the letter.

15.       I agreed that I would take Terry to deliver
the letter but I made it absolutely clear that he was only to deliver the
letter and that he was not to discuss it with Anthony or do anything other than
deliver it.

16.       I did take Terry in my
work truck to the location where Anthony was working and let him go to deliver
the letter to Anthony who was working on a piece of logging machinery.  Anthony
came down from the machine and was given the letter by Terry.  I was
observing this from approximately 15 metres away where I was standing
beside my vehicle.  There appeared to be some verbal confrontation between
Terry and Anthony and it appeared that Terry was hollering at and threatening
Anthony.  Anthony clambered back up on his machine to get away from Terry.  At
no time did I hear Anthony raise his voice.  I walked over to Terry
and told him to stop.  Terry then stated “Well, it’s been good working for you,
but I guess it’s over”.

[8]            
As part of the plaintiff’s case, the plaintiff placed in evidence the
complete transcript of the examination for discovery of Mr. Graham.  In
his examination for discovery, Mr. Graham described the workplace incident
and his reason for dismissing the plaintiff as follows:

Q         Okay. And why was notice or severance not
provided to Mr. Hilton?

A          Because I believe it was a very
legitimate reason why we dismissed him.

Q Okay.  And what was that reason, in your
mind?

A For violence in the workplace,

Q         What violence, in specific, are you referring
to?

A          Going after another employee.

Q         By “going after” —

A          Verbally and physically.

Q         Okay.  What did he physically do?

A          He went over — he ran over to the guy that
was on the machine and was very violent and verbally abusive.

Q         And how was he violent?

A          Well, I figured he was going to thump
the other operator.  The other operator climbed up on his machine.

Q         And by “thump” you mean hit?

A          Yeah.

Q And you said he was violent.  How was he
violent?

A That’s what I mean.  And he was
verbally abusive, I guess you could call it.

Q         And we’ll talk in more detail about this.  I want
to flesh this out.  So what did he do that was specifically violent?

A          Well, I figured — well, what did he do
or what did he do leading up to it?

Q         Specifically the violence you’re referring to.
I want to know what that was.

A          He was angry.

Q         Okay.

A          He was hollering at the guy on the machine,
on the loader.

Q         Okay.

A          He went to give him a piece of paper and he
handed him the paper, but I thought he was maybe going to punch him at the
same time.  I wasn’t sure what was happening.

Q         Did he punch him?

A          No, he didn’t.  The
operator climbed back on his machine.

(my
emphasis)

[9]            
It is not disputed that Mr. Graham knew that the plaintiff had a
dispute with Mr. Ellis and that he accompanied the plaintiff to where Mr. Ellis
was working at the time of the workplace incident.  It was certainly
foreseeable that a heated exchange might occur.  In his affidavit, Mr. Graham
contemplates this.  In the end, I find that there was a heated verbal exchange. 
There was no physical violence.  An affidavit of Mr. Ellis was not
submitted.  If Mr. Ellis had felt physically threatened, I expect an
affidavit to this effect would have been tendered by the defendants.

[10]        
In support of his claim for additional damages for “mental distress and
aggravated and/or punitive damages”, the plaintiff pleaded:

a.         The workplace
incident caused the Plaintiff a great deal of stress, a racing heartbeat and
difficulty breathing, such that he believed that he required immediate medical
attention;

b.         At
approximately 9:30am-9:45am on May 12, 2010, the plaintiff advised Mr. Graham
that he required medical attention and intended to go to the hospital right away;
and

c.         Mr. Graham immediately
advised the Plaintiff that if he left work to attend at the hospital, his
employment would be terminated effective immediately.  As a result of this
ultimatum and out of fear of losing his job, the plaintiff told Mr. Graham
that he would attempt to work the remainder of the day.  At approximately
9:50am, Mr. Graham advised the plaintiff that he did not want him to
continue to work; ….

[11]        
On a balance of probabilities, the pleaded facts on this issue are not
supported by the evidence.  From Mr. Graham’s affidavit and examination
for discovery, I find that if Mr. Graham had been aware that the
plaintiff needed medical attention, he would have reacted quickly to assist the
plaintiff.

[12]        
Mr. Graham and the plaintiff had a long, productive and supportive
relationship of almost 20 years.  There was no evidence of any past ill will by
Mr. Graham towards the plaintiff and the events of May 12, 2010 were
not such that Mr. Graham would wish the plaintiff physical harm or
distress.  The Greenslide operation was a small one, with the special relationships
of a logging crew working in the bush together.  For example, Mr. Graham
in his affidavit stated:

Terry worked well when he was
working, however he did have some personal issues including alcohol
consumption.  Such problems necessitated other members of the crew, or later on
in the employment relationship, myself having to rouse him from bed to get up
for work.  Several of the other employees refused to pick Terry up in the
morning because of the difficulty in getting Terry out of the house and to
work.  On many occasions I myself would have to pick Terry up in the morning. 
There were also days when [his] beginning work had to be put off until he was
feeling well enough and clear headed enough to safely begin work.  This type of
performance is not particularly unusual in this type of job and Terry was not
unique in this behavior.  My job as an employer was to work with him and to
ensure that when he did commence work, he was capable of doing his work with
safety for himself and fellow employees.  I did not and would not have
dismissed him for this shortcoming in his work performance.

[13]        
Mr. Graham is also clear in his evidence that he was, quite
properly, extremely concerned about safety at the work site, with measures in
place to address medical emergencies.  If the plaintiff had made his physical
distress clear, I expect an affidavit to this effect by another worker
present at the time, such as Mr. Pilliw or Mr. Wright, would have
been tendered.

[14]        
The plaintiff’s affidavit evidence on what he told Mr. Graham is
also not particularly firm.  In this regard, the plaintiff swears:

However, I was very stressed by the confrontation and
felt like I was experiencing a heart attack.  I had a great deal of
stress, a racing heartbeat and difficulty breathing, and I felt I needed
immediate medical attention; and

Mr. Graham sat and talked to
Mr. Ellis for roughly four or five minutes and then Mr. Graham and
I went down the hill.  I was feeling anxious and stressed and at
approximately 9:30am-9:45am, I told Mr. Graham that “I might
not be able to work.  I might need medical attention”, or words to that
effect.  [my emphasis]

[15]        
After his dismissal, the plaintiff was emotionally distraught and it
took a couple of months before he could look for work on July 19, 2010.  (I
have noted the one exception of May 15, 2010 when the plaintiff worked for
one day for Windy River Contracting and made approximately $170.)  During this
period, after his dismissal and before July 19, 2010, the plaintiff
obtained employment insurance benefits based on medical grounds.  (The evidence
on this aspect was not entirely satisfactory.  Counsel argued that it related
to distress caused by the plaintiff’s termination, accentuated by the fact that
he suffered from depression.)

[16]        
After July 19, 2010, the plaintiff sought work from various
sources.  The plaintiff found some work in Alberta and in our province.

[17]        
The plaintiff’s jobs and approximate income after July 19, 2010
were:

(a)           
June 2011 – his brother employed him for approximately four to five
weeks in Calgary (approximately $2,400);

(b)           
July 27-November 12, 2011 – Boulder Construction AB Inc.,
Edmonton (approximately $13,460);

(c)           
February 21 to
March 2, 2012 – Aberco Construction Ltd., St. Albert (approximately $2,400).

[18]        
On March 2, 2012, the plaintiff suffered a broken leg and was
unable to work for five months.

[19]        
With respect to the plaintiff possibly returning to work for the
defendants, the defendants in their Application Response, submitted:

(a)           
The defendants advised Mr. Hilton to contact Mr. Graham when he
felt he was ready to discuss resuming his job and he did not do so; and

(b)           
If the dismissal of Mr. Hilton was not for cause, Mr. Hilton
should have been able to secure alternative employment with similar pay and
benefits within one or two months.

[20]        
At his examination for discovery on the aspect of the plaintiff
returning to work, Mr. Graham swore:

Q.        … And why did he call you?

A.         He called me to tell me that he was going to
a course in Kamloops, and that’s where it was for the stress and some kind of a
rehabilitation course for three months.  But he did ask me, he said, “I have to
go for a course for three months but can I have my job back?”  And I said,
“Well, go to your course.  Right now you can’t have your job back, but go to
your course and give me a call back when you’re done your course.”

Q.        Is that exactly what you said to him?

A.         Yeah.  And then
we would reconsider, we’d look at it again.

[21]        
The plaintiff in his affidavit swore that on May 15, 2010 he spoke
with Mr. Graham:

35.       The next time I spoke with Mr. Graham after my
dismissal was when he called me on Saturday, May 15, 2010.  The events
which occurred are as follows:

a.   During the
call, Mr. Graham told me that he wanted me to phone Mr. Ellis and try
to resolve our issue through mediation.  I agreed to do so, and called
Mr. Ellis and asked him if he would go through mediation.  He advised me
that he was going to countersue against me, [to] which I [replied] “okay,
Anthony,” and “See you later”, or words to that effect;

b.   I then
phoned Mr. Graham back and let him know what Anthony had said; and

c.   After the
discussion of May 15^th, Mr. Graham and I did not discuss
me coming back to work with the Defendants.

36.       Mr. Graham never
mentioned anything about me coming back to work.

[22]        
Any return to work would have occurred after the expiration of the
defendants’ view of the reasonable notice period.  Practically speaking, unless
Mr. Ellis had left Greenslide, it is unlikely that Mr. Graham would
have offered to rehire the plaintiff.

[23]        
At the time of his dismissal, the plaintiff was earning approximately
$31,400 annually (2004-2009 average), with 6% vacation pay included, and he
enjoyed a comprehensive benefits package.  I have estimated the annual value to
be $32,000.

Analysis

(a)           
Just Cause

[24]        
The defendants pleaded that the cause for the plaintiff’s dismissal was: 
“… the Plaintiff continued to threaten the co-worker at which time the Defendant
intervened in order to protect the safety of the workers”.

[25]        
As described above, the Court finds that there was a heated exchange
between the plaintiff and Mr. Ellis.  There was no physical violence or
evidence of Mr. Ellis feeling physically threatened.  Mr. Graham
could have avoided the heated exchange by not allowing the plaintiff to deliver
the letter to Mr. Ellis on the job site.  As Mr. Graham swears in his
affidavit:  “Leading up to the incident on May 12, 2010, Terry told me that
he was going to ‘kick Anthony’s head in’.”  Accordingly, it was entirely
foreseeable that there would be a heated exchange between the plaintiff and
Mr. Ellis.

[26]        
Mr. Graham did warn the plaintiff to do no more than deliver the
letter.  The plaintiff disobeyed Mr. Graham in this regard.  One instance
of disobedience of the nature described, especially by an almost twenty-year
employee, does not constitute just cause.

[27]        
In Leung v. Doppler Industries Inc., [1995] B.C.J. No. 690
(S.C.), aff’d [1997] B.C.J. No. 382 (C.A.), Saunders J. (as she then
was) stated:

[26]      Just cause is conduct
on the part of the employee incompatible with his or her duties, conduct which
goes to the root of the contract with the result that the employment
relationship is too fractured to expect the employer to provide a second
chance.

[28]        
A reprimand or a suspension are two of several possible alternative
punishments that were available to Mr. Graham which would have been more
proportionate to the plaintiff’s one-time disobedience.

(b)           
General Damages in Lieu of Notice

[29]        
In considering an award of general damages, I have been guided by the
Supreme Court of Canada’s decision in Honda Canada Inc. v. Keays, 2008
SCC 39, and the authorities to which the majority’s reasons refer.

[30]        
The key factors to consider are:

(a)       the
character of the employment;

(b)       the
length of the employee’s service;

(c)       the
age of the employee; and

(d)       the
availability of similar employment, based on experience, training and
qualifications.

[31]        
The significance of relevant factors is to be determined on a case-by-case
basis and that there is no catalogue as to what is reasonable notice in
particular classes of cases (Honda, at paras. 27-29, 31).

[32]        
In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, the
Supreme Court of Canada described two key purposes for an award of damages in
lieu of notice:

(a)   to
provide financial support while the employee looks for new work; and

(b)   to
compensate for the time the employee has invested in the employer’s business.

[33]        
At the time of his dismissal, Mr. Hilton was 41 years old and had
worked for the defendant for 19 years.  Although the nature of logging
operations may involve sporadic periods of inactivity (such as those caused by
forest fires or economic conditions), the defendants have admitted that the
plaintiff worked “uninterrupted” for the defendants over the 19 years. 
The character of the employment was not unique but would require an individual
with physical strength and ruggedness.  Similar employment positions would
certainly exist, but with significant competition for such positions.

[34]        
The plaintiff’s “personal issues” as described by Mr. Graham in his
affidavit would likely make securing employment more difficult.  I note that
there is some evidence that the plaintiff did seek and undergo counselling.  The
plaintiff’s evidence does not provide a record of the success, if any, of
counselling, nor the plaintiff’s success in changing his ways.  I view the
plaintiff’s personal issues as a neutral factor.

[35]        
Without considering the plaintiff’s personal issues, given the factors
discussed in Honda, I find that 18 months’ pay is the appropriate substitute
in damages for the defendants’ failure to provide a reasonable notice period.

(c)           
Mitigation

[36]        
The defendants’ pleaded that the plaintiff failed to mitigate his
damages.  The onus is on the defendants to show on a balance of probabilities
that the plaintiff failed to mitigate his damages.  The plaintiff’s sudden
termination after 19 years of service makes the initial period of
approximately two months when the plaintiff did not work (other than the one
day for Windy River) reasonable in the circumstances in light of the importance
that employment has in an individual’s life.  See McKinley v. BC Tel,
[2001] 2 S.C.R. 161, at paras. 53-56.

[37]        
As I have found, after July 19, 2010, the plaintiff was active in
seeking work and did obtain work, but not until June 2011 when he moved to
Alberta.  He had mitigation earnings from May 10, 2010 to
November 11, 2011 of approximately $16,030 ($170 + $2,400 + $13,460).

(d)           
Aggravated Damages

[38]        
In Honda, the majority states (at para. 57) that damages
from the manner of dismissal will be awarded where the employee proves that the
unfair or bad faith manner of dismissal caused mental distress that was
reasonably foreseeable by the parties.  Examples of such employer conduct
include:

[59]      Examples of conduct in
dismissal resulting in compensable damages are attacking the employee’s
reputation by declarations made at the time of dismissal, misrepresentation
regarding the reason for the decision, or dismissal meant to deprive the
employee of a pension benefit or other right, permanent status for instance
(see also the examples in [Wallace v. United Grain Growers Ltd., [1997]
3 S.C.R. 701], at paras. 99-100).

[39]        
On the facts at bar, the plaintiff disobeyed Mr. Graham by allowing
himself to enter into a heated exchange with Mr. Ellis.  Mr. Graham
then overreacted by dismissing the plaintiff when a lesser punishment would
have been appropriate.  The evidence does not support the plaintiff’s assertion
that Mr. Graham, on behalf of the defendants, dismissed the plaintiff at a
time that Mr. Graham knew that the plaintiff was in need of medical
attention or that if the plaintiff left work to seek medical attention he would
be dismissed.

(e)           
Punitive Damages

[40]        
In Honda, the majority states (at para. 62) that “punitive
damages are restricted to advertent wrongful acts that are so malicious and
outrageous that they are deserving of punishment on their own”.  On the facts,
the defendants did not partake in any such conduct.  As noted, Mr. Graham
overreacted in dismissing the plaintiff, but Mr. Graham’s overreaction was
neither malicious nor outrageous.

cONCLUSION

[41]        
The plaintiff is awarded $31,970 in damages, with interest, for which
the defendants are jointly and severally liable.

[42]        
Unless there are matters of which I am not aware, the plaintiff is
entitled to party and party costs in accordance with Appendix B.

_____________ “Funt J.”______________
Funt J.