2007 BCSC 253 Lelievre v. Commerce and Industry Insurance Company of Canada

Before: The Honourable Madam Justice Boyd

Reasons for Judgment

In Chambers

Counsel for the Plaintiff:	R.G. Yeager
Counsel for the Defendant:	R.J. Lesperance
Date and Place of Trial/Hearing:	February 1-2, 2007
	Vancouver, B.C.

Introduction:

[1] The plaintiff, Susan Lelievre (“Lelievre”) seeks damages for the alleged wrongful dismissal from her employment with the defendant on March 19, 2004.

Background:

[2] The plaintiff is currently 56 years of age. She was hired by the defendant company, Commerce and Industry Insurance Company of Canada (“AIG”), on January 5, 1998. To that point she had 21-year history of employment in the insurance industry. Since approximately 1984, her employment had become relatively specialized, being limited to the marketing of Group Insurance and Special Risk products.

[3] In 2001 she was promoted from the position of Sales Representative at the defendant company to the position of Sales Manager for the Western Region which comprised British Columbia, Alberta and Saskatchewan. While she occupied an office at the Vancouver Regional office and supervised one part-time employee there, she reported to no one in that office. Rather she reported directly to the Canadian Regional Director, Ms. Mary Caputo (“Caputo”), in Toronto, Ontario. She was responsible to manage and oversee a premium budget which grew to approximately $6 million. As of 2004, she was paid an annual salary of $56,000 and was eligible for a performance bonus based on her sales production.

[4] Over the years it appears that the plaintiff performed as an average employee although she was never able to earn a performance bonus. In one year she did receive a bonus, not however as a reflection of her performance, but rather as an incentive to expand her market.

[5] Her last annual performance review conducted in May 2003 was again an average review. Caputo conducted the review and signed the documents. The performance goals set out at page 9 of the Performance Review include: to generate $1 million in new annualized premiums in 2003-2004; to maintain 10-12 face to face sales calls per week; to develop six new broker contacts so as to generate at least $100,000 in new business premiums: to continue to be point of contact for the A&HJ and DBG areas for Western Canada; to generate at least 200 quotes in 2003; and to maintain all underwriting and sales service standards. While it is difficult to interpret the weighted score system, the plaintiff’s counsel concedes the review is “neutral”. He highlights the fact there is no specific criticism of the plaintiff set out anywhere on the face of the report.

[6] Caputo and her supervisor, Mr. Puzzo (“Puzzo”), have deposed that a few months later, in the fall of 2003, they began to have concerns about the plaintiff’s job performance and attitude. These concerns were relayed to Ms. MacKay (“MacKay”), the Director of Human Resources. Members of the underwriting team had complained about the plaintiff. The plaintiff was constantly complaining and displaying a very negative attitude towards the company, particularly senior management in New York. She complained to co-workers about her bonus compensation. She voiced her unwillingness to learn the company’s new computer system. It was agreed that Caputo should speak directly with the plaintiff to encourage her to take steps to improve her attitude and overall performance.

[7] In October 2003, the plaintiff attended the company’s regional sales meeting in Toronto. Caputo has deposed that during the course of this meeting the plaintiff was dressed casually rather than in the required business attire. Further, in Caputo’s view, the plaintiff did not appear to be interacting with her co-workers nor did she appear to be paying attention during the meetings.

[8] On the day after the conference, and following their usual pattern, Caputo and the plaintiff met at a private breakfast meeting. In the course of that meeting, Caputo has deposed that she discussed several matters with the plaintiff—specifically that she was not interacting with her co-workers during the meetings; that her attitude was negative; that her casual wear was inappropriate; that she would have to be more supportive of the Underwriting Department; and that her emails criticizing the New York home office were inappropriate and would have to stop. She told her to be more professional with the brokers. She told her that she had the potential to sell over $1 million in business and thus earn a bonus, if she concentrated hard on changing her focus. At discovery, the plaintiff acknowledged this breakfast meeting was held and specifically that Caputo discussed the $1 million performance target at that time. The meeting is not addressed in her affidavits.

[9] One of the main areas of conflict in the evidence concerns a telephone call between Caputo and the plaintiff which occurred in December 2003. According to Caputo, after the October breakfast meeting, the plaintiff’s performance did not improve. Acting in accordance with the company’s policy of gradually escalating warnings of impending disciplinary action, Caputo says she telephoned the plaintiff to specify the areas in which the company expected her to improve. She says she told the plaintiff the telephone call constituted a “first oral warning” and that if there was no improvement in approximately 90 days, her next warning would be in writing. She says that during the telephone call she addressed the same complaints which had been raised at the earlier breakfast meeting in October 2003.

[10] While the plaintiff admits the December 2003 telephone call, she insists that Caputo’s tone was conversational and that no “words of warning” were ever used. She insists that the conversation ended with Caputo issuing no formal warning.

[11] Nevertheless it is significant that in her affidavit of March 29, 2006, the plaintiff essentially concedes that Caputo did at least raise each of the topics alleged: that she should buy some new suits; that she should not discuss the bonus compensation system with others; that she ought to find new brokers; that there was some issue with her writing emails; that she should be a team player; that she should focus on specialty lines; and finally that she should learn to operate the computer system.

[12] While the plaintiff has cast each of the issues in a different light and has set out her reasoning as to why there was no reason for any compliant, I infer that as Caputo raised each issue, Lelievre effectively disagreed with her and stated her own contrary position. For example, dealing with the issue of business attire, she says that while Caputo told her to buy some new suits “to cheer (herself) up” she explained to Caputo that her attire was indeed appropriate since the overall dress code was less formal on the West Coast. In any case she insists that their discussion did not end with any formal direction provided by Caputo nor any issuance of a warning of possible termination if she did not comply.

[13] Notwithstanding the plaintiff’s evidence, I am satisfied, on a balance of probabilities, based on the evidence of Caputo, Puzzo, Mackay and the broker, that in 2003 concerns had indeed developed in each of these areas and that each such concern was addressed directly by Caputo both during the breakfast meeting in October 2003 and during her telephone call with the plaintiff in December 2003. While it is regrettable that Caputo did not see fit to immediately reduce any of the discussions to writing, I nevertheless accept that the December discussion did occur and that it constituted the company’s first verbal notice of reprimand.

[14] Caputo has deposed that following the December 2003 telephone call, the plaintiff’s performance did not improve. Both Puzzo and MacKay corroborate her evidence. Prior to issuing the formal written notice letter, Caputo consulted with both Puzzo and MacKay concerning her plan to do so. She drafted the March 18th letter (‘the First Letter”) specifically to confirm that the matters referred to in the letter had been the subject of the earlier verbal warning in December 2003. Having reviewed the draft letter and having confirmed with Caputo that there had indeed been an earlier verbal warning, MacKay approved the letter as appropriate.

[15] The letter was then forwarded to Mr. Robert Frew (“Frew”), the branch manager of the Vancouver office, for delivery to the plaintiff. Caputo telephoned him and told him that the letter related to Lelievre’s employment and constituted a formal warning to improve her performance.

[16] There is no dispute that in delivering the letter to the plaintiff, Frew was simply acting as Caputo’s agent. Lelievre did not report directly to him and there is no suggestion he had any authority to terminate her employment.

[17] At approximately 8:00 a.m. on March 18, 2004, Frew went to the plaintiff’s private office, closed the door and informed her he had been asked to deliver a letter from Caputo. The plaintiff read the March 18th letter in Frew’s presence and was immediately angry, distraught and upset by its contents. She told Frew the letter was “crap”, “not acceptable”, and that she disagreed with its contents. Frew suggested she review the performance issues raised in the letter and realize the concerns raised were serious ones. A number of times he suggested that she contact Caputo directly by telephone so as to determine how matters could be resolved. Since she continued to be upset he recommended she take some time that day to go home and “cool down”.

[18] I will spend little time reviewing the contents of the March 18th letter. It essentially reiterates the eight performance issues discussed in December 2003, and notes, relative to each matter, that no action had been taken or that little or no improvement had been noted. Thus the letter warns that “(e)ffective immediately, your performance will be closely monitored on an on-going basis.” Finally the letter warns that “Failure to improve your performance to acceptable standards…will result in further action being taken up to and including the termination of your employment.”

[19] After Frew left her office, rather than accept his advice to go home and cool down, the plaintiff authored and sent an email at 9:45 a.m., almost an hour and 45 minutes after her meeting with Frew. The email was directed to Frew with copies to both Caputo and Puzzo. It reads:

I have reviewed the memo from Mary Caputo and resulting warning and it is unacceptable and untrue. I hereby request that Commerce & Industry… dismiss me immediately with the appropriate generous severance that AIG is known for immediately. The documents that I have kept over my tenure contradict the memo in all areas.

I look forward to Head Office’s response. Let me know if you wish me to clean out my office today.

[20] On receiving the email, Frew went to Lelievre’s office to discuss the matter but found she had left the office for the day.

[21] After her arrival home, Lelievre telephoned Caputo’s superior, Puzzo, in New York. She told him about the letter. He told her he would look into the matter and get back to her.

[22] Early the following morning, March 19, 2004, the plaintiff wrote her second email, this time to Puzzo, with a copy to Frew. She had obviously decided not to deal directly with Caputo, her own supervisor, but rather to go over her head and deal with Caputo’s own supervisor. In this email she once again rejects the performance issues raised in Caputo’s March 18th letter. The email reads:

Dear Joe:

I am calmer however, as per our discussion yesterday, this action has been spurned, not by my performance, but rather my unanswered questions as to why the Canadian budget has been heavily and unfairly swung to the Western Region and I still don’t have an answer. The contents of Mary’s probationary memo of March 18th are harassing and have nothing to do with the current issues.

…

Anyway, I will consider any course of action that Management decides that will be in the best interests of everyone, including all our customers and brokers….

[23] Frew read this email and concluded the plaintiff was still clearly rejecting any notion that she needed to improve her performance. She apparently remained fixated on the unfairness of the budget issue.

[24] Later that same morning, Caputo called Frew and asked that as soon as possible, he present a second letter dated March 18th to the plaintiff. The letter was Caputo’s response to the plaintiff’s earlier email of March 18th directed to Frew.

[25] At approximately 8:00 a.m. on March 19th, Frew invited Lelievre to his office. The meeting was witnessed by a Ms. Carolyn Tierney (“Tierney”), a fellow employee, who Frew had asked to be present to witness the meeting, as suggested by Caputo. Frew delivered Caputo’s second letter dated March 18, 2004 to Lelievre (“the Second Letter”). In the Second Letter, Caputo attempts to correct Lelievre’s own characterization of the first letter as a “Dismissal Action”. She notes:

It is not the policy of any AIG Companies to dismiss employees prior to providing them with an opportunity to improve their performance to acceptable standards. This was the purpose of the correspondence you received… .

[26] In the letter, Caputo reassures the plaintiff that she wants her to succeed. She notes however that if she chooses to resign rather than improve, the company would accept her resignation. If she chooses to resign, the letter notes that the company was prepared to offer, on a gratuitous basis, a lump sum payment of $8,827.52, being the equivalent of eight weeks base salary less statutory withholdings. The letter closes with this statement:

Please advise me by close of business Friday, March 19, 2004 if you are prepared to accept the terms of the performance improvement documentation of Thursday, March 18, 2004, or, alternatively, please submit your signed resignation.

[27] Once again, in Frew’s presence, the plaintiff’s response was negative. She made it clear to him that she neither agreed to nor accepted the contents of the Second Letter. Frew recommended she obtain legal advice and he again suggested that she simply call Caputo to resolve their issues.

[28] Shortly after the meeting, at 8:25 a.m., the plaintiff sent an email to Caputo, with copies to Frew and Puzzo, confirming what she had just told Frew. She notes:

This letter is to advise that your terms are not acceptable to me.

[29] In the email she further addresses and refutes each of the eight issues raised in both Caputo’s First and Second Letters. Finally, she closes the email with this statement:

An 8-week offer is only two weeks over the minimum required by B.C. law. As I am a Manager with many years of experience and have brought the Western Region on to the map again, I don’t’ see any figure less than six months as being acceptable under the circumstances.

[30] This email was followed by another email at 8:38 a.m. which the plaintiff directed to Mr. MacMillan, the President of AIG Canada. She notes:

Just a quick note to say that my termination is being negotiated today and this is my last day with AIG. Sadly, this is due to irreconcilable differences between Mary Caputo and myself.

I’ve enjoyed working for you, although from afar. AIG is a good company overall. The Vancouver team has been wonderful and I feel sorry that Bob has to be the messenger in this circumstances… .

[31] Then at 8:42 a.m., the plaintiff sent another email to various co-workers in the Toronto office, stating:

Just a note to say that this will be my last day with AIF and I really enjoyed working with you over the last six years. Take care and all the best.

[32] One of those Toronto co-workers forwarded the email to Caputo.

[33] One of the main conflicts in the defendant’s own evidence concerns Frew’s telephone call with Caputo on the morning of March 19th. By this point in time Caputo had received a copy of the email Lelievre had forwarded to one of the Toronto staff members, announcing this was her last day of work. There is no evidence Frew was aware of that email.

[34] According to Frew, during his telephone conversation with Caputo, he told her it was his impression that Lelievre was resigning. On discovery he makes it clear that in forming this impression he was relying on his own interpretation of Lelievre’s “oral and body language” and the contents of her email, emphatically rejecting the performance issues raised by Caputo and demanding a proper severance package.

[35] Significantly, Caputo’s recollection of the conversation is quite different. She notes:

I told him that I had seen copies of emails to some co-workers where the Plaintiff stated that she was leaving and that it was her last day at AIG. Bob did call me stating that the Plaintiff was packing up her desk and I asked him if she was packing up to leave or just to take some time off to think about things? I did state to Bob if she was packing to leave AIG, I assumed she was in fact resigning. Bob called back saying that she was leaving AIG and she wanted to know if she could keep her company car until Monday seeing that she did not have a car.

[36] Apparently working on the assumption that the plaintiff had chosen to reject the performance review and to leave the defendant’s employ, Frew went to Lelievre’s office and delivered his own handwritten note to her. There is no evidence that Frew ever saw Lelievre packing up her office before delivering this note. It reads:

Susan,

Here are the items that you need to leave with me by the end of the day: (list follows)

[37] There is no dispute that Frew assisted Lelievre to pack up her belongings. He retrieved from her the items listed in the handwritten note and he assisted her to carry various personal items to her company car. In the course of their dealings with each other, the plaintiff asked Frew whether she could keep the company car over the weekend so as to properly clean it. Frew said he would have to check with Caputo. He called Caputo who responded that if Lelievre was ending her employment, she was required to return the company car that day. This information was relayed to Lelievre.

[38] Lelievre did not return to work the following Monday, March 22, 2004. Nor did she contact anyone at the company. On March 23, 2004 Caputo wrote a third letter to the plaintiff, confirming that she had removed her personal belongings from the office and returned the company car on March 19th. In this letter she notes that Lelievre had not returned to work on Monday March 22^nd and states:

Please review the contents of our correspondence of March 18, 2004, and you will note that your employment with the Accident and Health Division was not terminated. From your actions of March 19, 2004, together with the fact that you have neither shown up for work, nor contacted anyone in the office since then, it would appear that you have chosen to resign your position. If this is the case, we would appreciate your written confirmation at your earliest convenience.

If you do not return to work or contact us by the close of business Friday, March 26, 2004. We shall process your resignation documentation and forward monies owing to your bank account.

[39] Lelievre did not respond to this letter. Ultimately the plaintiff received two cheques in the sum of $2,206.88, representing two weeks of salary for the period March 25-April 9, 2004, although she did not attend for work on those dates.

Issues:

1. Was the plaintiff’s employment terminated by the defendant or did she resign?

2. If the plaintiff’s employment was terminated by the defendant, what is the period of reasonable notice?

3. Did the plaintiff make a reasonable effort to mitigate her loss by looking for similar or alternative employment?

Parties’ Positions:

[40] The plaintiff’s position is that she was placed in a position where she either accepted the terms of the First Letter without discussion or explanation, or she would be deemed to have resigned. She says that Caputo’s letter “came out of the blue” and that accordingly she found the contents of the letter confusing and did not understand what was happening. Nevertheless, she says the defendant company provided her with a strict chronological time frame in which to respond—that is by the end of the business day on March 19, 2004.

[41] In responding to Caputo’s letter she says that there never was any clear and unequivocal resignation on her part. Rather she says she made two requests of her employer: (i) to dismiss her with an appropriate severance; and (ii) to let her know if she was required to clean out her office. She says she placed herself in the hands of her employer on both counts. Yet before the expiry of the deadline imposed by the employer (close of business on March 19th) she says Frew erroneously concluded she was resigning and relayed that information to Caputo. When Frew delivered the handwritten note to her on the morning of March 19th, instructing her to clean out her office and return all of the company property in her possession, she says she deduced the employer had decided to terminate her employment.

[42] In contrast, the defendant says that what occurred here amounted to a progressive disciplinary process regarding an employee who was not meeting the employer’s expectations. The defendant says that none of Caputo’s letters created any unilateral changes in the employee’s employment contract. In response to each such letter, the employee repeatedly made it clear she had no intention of considering the issues raised or working with the employer in achieving the goals set. Before Frew delivered the handwritten note setting out the items to be returned, the employer says the plaintiff sent out emails to various co-workers, setting out her clear decision to resign and to leave the company’s employ. In all of the circumstances, the defendant says it is clear the plaintiff resigned her employment and was not terminated.

Analysis:

[43] I should note at the outset that the parties are agreed (a) there was no constructive dismissal of the plaintiff; and (b) there was no cause for dismissal. Thus the narrow issue is whether the plaintiff resigned her position or whether her employment was terminated.

1. Did the plaintiff resign or was her employment terminated?

[44] It is impossible, on the basis of the evidence before the Court, to make any considered finding regarding the merits of Lelievre’s complaint concerning the distribution of the 2004 bonus goals. Nevertheless, whatever the merits of that complaint may be, I reject the plaintiff’s suggestion that the disciplinary process which Caputo initiated was without foundation but rather was purely manufactured in response to the plaintiff questioning the budget numbers in early 2004.

[45] I reject the notion that the plaintiff was “blindsided” by the First Letter or that the letter was part of a Machiavellian scheme on the defendant’s part to manufacture a foundation for termination of her employment.

[46] Given the plaintiff’s reaction to the First letter, which she characterized in an email as “Dismissal Action”, Caputo wrote the Second Letter, reassuring Lelievre that the company wanted her to succeed and urging her to take advantage of the opportunity for improvement. During both the meeting of March 18th and 19th, Frew repeatedly urged the plaintiff to telephone Caputo and resolve matters. Instead, throughout, Lelievre took the position there were no performance issues, that the contents of both letters were “crap” “untrue” and “unfair” and then effectively commenced her own negotiations for an acceptable severance package.

[47] It was in these circumstances that Frew delivered his handwritten note between 8:00 a.m. and 9:00 a.m. on March 19, 2004. Frew had witnessed Lelievre’s response to the two Caputo letters. In my view, his impression that Lelievre had no intention of capitulating to Caputo’s demands was not unreasonable. When he spoke to Caputo on the morning of March 19th, Caputo had already received copies of her emails to her co-workers announcing it was her last day. I accept Frew told Caputo that it was his impression Lelievre was resigning. When Caputo asked Frew whether Lelievre was resigning, I accept that he honestly responded that this was his impression. Lelievre was clearly angry and distraught and in that state of mind, she had penned her emails to the Canadian president and various co-workers in Toronto announcing that March 19th was her last day at work.

[48] The issue is whether in these circumstances, Frew’s delivery of the handwritten note to Lelievre, requesting that she deliver up possession of certain company property, constituted notice of her termination or to the contrary, an implied acceptance of her notice of resignation?

[49] The defendant says that in all of the circumstances, given Lelievre’s clear rejection of the Caputo letters, together with her “verbal and body language”, Frew’s impression that Lelievre had resigned was not unreasonable. However there is no suggestion on the defendant’s part that in delivering the handwritten note to Lelievre, the defendant was sufficiently accepting Lelievre’s offer of resignation.

[50] Indeed the defendant appears to have realized, shortly after Lelievre’s departure, that the characterization of Lelievre’s departure on March 19th posed some problems. Lelievre had never delivered any formal notice of resignation. However Frew had given her a handwritten note requesting the return of certain company property. Frew had specifically requested that Caputo consider Lelievre’s request to retain the company car over the weekend, which request Caputo had denied. Thus, disingenuously in my view, Caputo crafted her letter of March 23, 2004 which reads:

We have been advised that, during the afternoon of Friday, March 19, 2004, you removed all of your personal belonging from your office and returned your company car. In addition, you did not show up for work on Monday, March 22, 2004, nor did you contact anyone to advise that you were not available for work.

Please review the contents of our correspondence of March 18, 2004, and you will note that your employment ….was not terminated. From your actions of March 19, 2004, together with the fact that you have neither shown up for work, nor contacted anyone in the office since then, it would appear that you have chosen to resign your position. If this is the case, we would appreciate your written confirmation at your earliest convenience.

If you do not return to work or contact us by close of business Friday, March 26, 2004, we shall process your resignation documentation and forward monies owing to your bank account.

[51] The issue is, in all of these circumstances, can it be said that Lelievre did resign? A resignation must be clear and unequivocal to be effective. The test for determining whether an employee has resigned their position is an objective one, meaning the court must be satisfied given all the surrounding circumstances, that a reasonable person would understand by the plaintiff’s actions, that they had resigned. (Assouline v. Ogivar Inc., [1991] B.C.J. No. 3419; Cox v. Victoria Plywood Cooperative Assoc. [1993] B.C.J. No. 2788)

[52] However the law is clear that where an emotionally upset and angry employee exclaims “I quit”, the issue of whether he/she has resigned is not clear cut. The law recognizes that such utterances may not constitute a valid resignation. Nor should such a declaration be accepted without question by the employer. Rather the onus is on the employer to not accept such a spontaneous declaration without proper deliberation (Cox).

[53] While Frew’s impression of Lelievre’s resignation may have been sincere, I reject the notion that it was his own impression of Lelievre’s actions, rather than Caputo’s, which triggered the delivery of his handwritten note. Rather I accept that it was Caputo who formed the impression Lelievre was resigning, having read Lelievre’s email to a co-worker in Toronto.

[54] Central to Caputo’s justification of the resignation theory is her evidence that Frew informed her Lelievre was in the process of packing up her office. That being the case, Caputo says she told Frew that if Lelievre was indeed packing up her office, then in her view, she was resigning. (As I have already noted, this evidence conflicts directly with Frew’s evidence who never saw Lelievre packing up prior to deliver of the handwritten note). The delivery of the handwritten letter followed.

[55] While Frew has not said so, in all of the circumstances, I infer that he delivered the handwritten note on Caputo’s instructions, after Caputo received copies of the email Lelievre had delivered to the co-worker in Toronto. The fact that Frew’s delivery of the handwritten notice followed from Caputo’s instructions is consistent with his latter actions in first confirming Caputo’s instructions, before responding to Lelievre’s request to keep the company car over the weekend. Frew was effectively Lelievre’s messenger.

[56] Thus, on a review of all of the evidence, I find that Frew’s delivery of the handwritten note on March 19^th constituted Caputo’s acceptance of what she believed was Lelievre’s resignation. After the weekend and on further review, I find that either Caputo realized her error or that error was identified by the Human Resources Department. Accordingly, the March 22nd was delivered. I have already characterized the letter as disingenuous. The letter purports to express surprise that Lelievre had not returned to work on Monday, March 21st and that if she failed to return to work by the following Friday, her departure would be characterized as a resignation.

[57] I find that while Lelievre had certainly signalled an intention to resign, all of her actions occurred while she was in a state of emotional upset. She had made a series of statements, all emotionally charged, declaring her upset, her intention to leave the company’s employ, her expectation of a proper severance package, and that March 19^th would be her last day at work.

[58] Even assuming that her emails to staff appeared to announce her resignation, that in my view does not end the matter. It remains that she never formally advised any member of her immediate management team that she intended to resign. Neither Puzzo nor Caputo responded to her emails. Mackay, the Human Resources director, apparently guiding the course of events from the sidelines, did not step in.

[59] Caputo was well aware of Lelievre’s emotional state. At least four members of management knew they had an angry, hostile senior employee on their hands. Yet despite the carefully escalating performance reviews, no one stepped in to properly outline Lelievre’s options to her.

[60] From the company’s point of view, her options were twofold: to accept Caputo’s performance demands or to accept termination effective at the close of business on Friday, March 19th.

[61] However, the plaintiff’s options were actually much broader. She could chose to continue to work (as she was in fact doing on the morning of March 19th) awaiting the company’s response to her emails. She could chose to accept Caputo’s performance demands without discussion. She could chose to leave the matter unresolved and refuse to tender her resignation by the close of business on March 19th, thus leaving it to the company to decide whether to take further action.

[62] All of these actions were foreclosed when Frew delivered his letter on the morning of March 19th. I do not interpret Frew’s letter as the company’s letter of termination. Rather I find that Frew’s letter constitutes the defendant company’s acceptance of what it believed was the plaintiff’s own earlier intemperate offer of resignation. Yet there was never any proper deliberation by the employer. There was no proper consideration of the situation by her immediate supervisor or any human resources personnel.

[63] As the Court noted in Tolman v. Gearmatic Co. Ltd. (1986), 14 C.C.E.L. 195 where an employee expressed an intention to resign, “unless the employer acted to its detriment on the expressing of the intention to resign, the plaintiff remained free to change his mind.”

[64] Here, I am satisfied that in spite of what appears to have been Lelievre’s expression of her intention to resign (albeit to co- workers and persons other than her immediate supervisor), the plaintiff was also free to change her mind. However before she fully considered her position and made any formal decision to resign, the defendant did indeed act to its detriment. By demanding the return of all company property, including keys and office passes and supervising a signing off on her computer account, the defendant effectively terminated her access to place of work. At the defendant’s request the company car was also relinquished. In all of these circumstances, I find that the defendant did indeed terminate the plaintiff’s employment without reasonable notice.

2. What is the correct period of notice?

[65] The parties are in agreement that the primary factors to be taken into account when deciding what is the reasonable period of notice are the length of service of the employee, the character of the employment, the age of the employee, and the availability of similar employment having regard to the experience, training and qualifications of the employee (Bardal v. Globe and Mail Ltd. (1969) 24 D.L.R. (2d) 140 (Ont. H.C.).

[66] The plaintiff’s position is that as a 53-year-old senior manager with six years experience at the company, working in a specialized field of the insurance industry with limited alternative employment opportunities, she was entitled to 10-12 months notice of termination. The defence position is that an appropriate range of notice is 4-6 months.

[67] While the plaintiff was described as a manager, I note that she supervised but one part-time employee who was an administrative assistant. She had no other supervisory of managerial responsibilities and her job was essentially that of a sales manager.

[68] In all of these circumstances, including her age and years of service and adopting the guideline set out in Linsdell v. Squamish WK Enterprises, 2003 BCSC 188, I am satisfied that it is appropriate to set reasonable notice at one month per year of employment. I find that the plaintiff was entitled to six months’ notice of termination of her employment. From that period should be deducted the two weeks of pay she received following her departure.

3. Wallace Damages

[69] The plaintiff submits that the company’s treatment of her was insensitive. In particular she relies on the fact that she was dismissed by Frew, rather than by her own supervisor; that she was faced with letters threatening dismissal with no opportunity to respond directly and discuss matters with the employer; that she was initially advised she could consider her position until the close of business and then was dismissed precipitously at the outset of the day. Further she insists that here the employer was effectively attempting to “engineer a departure without cost”. In these circumstances, she submits the Court should award what have come to be known as Wallace damages, that is damages to reflect the aggravating circumstances surrounding the wrongful dismissal (Wallace v. United Grain Growers Ltd. (1997), 3 S.C.R. 701). She seeks a further three months notice on top of the six months reasonable notice awarded.

[70] Wallace damages are restricted to the manner of dismissal and not the dismissal itself. Here I am not persuaded there are any grounds for such damages.

[71] While the defendant clearly blundered in responding to the plaintiff’s indications of her plan to resign, the company never, in my view, treated her improperly or insensitively. I have already rejected the notion that her dismissal was planned or orchestrated. I have also rejected her insistence that there were no performance issues. As I have noted the company did follow a progressive performance review and she was provided with gradually escalating warning—all of which she chose to reject.

[72] In his direct dealings with the plaintiff, I am satisfied that Frew acted sensitively and privately and did what he could to offer some support. Unfortunately as the Vancouver office manager, he could offer little concrete help. Nor was he able to offer any constructive criticism or assistance in the plaintiff’s dispute with the Toronto office. Finally, there is no evidence that the manner of her dismissal in any way hampered her efforts to find alternative employment.

Mitigation of Damages:

[73] The defence position is that the plaintiff did not make any reasonable efforts to find alternative employment. Approximately four months after her termination she sent three brief emails to three insurance industry employers inquiring about the availability of work. There is no evidence of any other effort to find similar or alternative employment.

[74] Her position is that she only wrote to three insurance industry employers since her opportunities for employment as a Group Insurance and Special Risk sales manager was restricted to those three companies.

[75] Relying on Caputo’s own evidence regarding the many opportunities in the insurance industry concerning an individual with Lelievre’s background, I find that her actual employment opportunities went well beyond the three companies she approached. More significantly, I note Lelievre has effectively admitted on discovery that she deliberately chose not to look for other employment, being content to rely on her husband to support her. When asked to explain why she did nothing to pursue employment other than to send out the three emails, she responded “I have a husband…So I wasn’t starving at that point”.

[76] In my view, the defendant has met the onus of proving that the plaintiff did not act reasonably and take such steps as a reasonable persons in the plaintiff’s position would have taken in her own interest in order to maintain her income and her employment. In all of these circumstances I will reduce the period of notice to three months. The two weeks’ pay should be deducted from this period of notice.

Costs:

[77] Since I am not aware of whatever offers of settlement may have been exchanged here, I will make no order for costs. I leave it to the parties to resolve the matter between themselves. In the event this issue cannot be resolved, the parties ought to contact the Registry in order to make further submissions relating to costs.

“M.E. Boyd, J.”
The Honourable Madam Justice M.E. Boyd

Citation:	*Lelievre v. Commerce and Industry Insurance Company of Canada,*
	2007 BCSC 253