IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Grewal v. Khalsa Credit Union,

 

2011 BCSC 648

Date: 20110518

Docket: S070696

Registry: Vancouver

Between:

Sukhwinder K. Grewal

Plaintiff

And

Khalsa Credit Union

Defendant

Before: The Honourable Mr. Justice Goepel

Reasons for Judgment

Counsel for the Plaintiff:

L.J. Mackoff
D.M. Steinbach

Counsel for the Defendant:

S.M. Mitchell
A. Kundi

Place and Date of Trial:

Vancouver, B.C.

February 7-11; 14-18;
21-23, 2011

Place and Date of Judgment:

Vancouver, B.C.

May 18, 2011


 

INTRODUCTION

[1]             The plaintiff, Sukhwinder K. Grewal, commenced work as a teller at the defendant Khalsa Credit Union (“KCU”) on December 1, 1989. Over the years she received several promotions and ultimately became a branch manager. Her employment ended in September 2006. She now seeks damages for wrongful dismissal.

[2]             KCU submits that Ms. Grewal was not dismissed but rather she resigned or abandoned her employment. Alternatively, it submits that if Ms. Grewal was dismissed, she was dismissed for cause. In support of both submissions, KCU relies on Ms. Grewal’s counsel’s letter of September 1, 2006 (the “September 1 Letter”) that KCU says effectively terminated the employment relationship.

[3]             In order to put the September 1 Letter in context, it is necessary to first review in some detail the history of the employment relationship and certain events referenced in the letter.

THE PARTIES

A.       Ms. Grewal

[4]             Ms. Grewal is a native of India. She moved to Canada in March 1988. She completed a teller’s training course and for a short time had part-time employment at the Canadian Imperial Bank of Commerce.

[5]             Ms. Grewal commenced employment at KCU on December 1, 1989, as a teller at the Surrey branch. In 1990, she was transferred to the Vancouver branch. Over time, she moved up through the ranks and in 1999 she became manager of the Vancouver branch.

B.       KCU

[6]             KCU was established in 1986. It has four branches in the Lower Mainland of British Columbia and a fifth branch in Victoria. Its head office is located in the same building as its Surrey branch. Most of its business comes from the Sikh community.

[7]             The Financial Institutions Commission (“FICOM”) regulates credit unions pursuant to the provisions of the Financial Institutions Act, R.S.B.C. 1996, c. 141 (the “FIA”). The FIA authorizes FICOM to put credit unions under supervision and in more extreme cases under administration. In August 1999, FICOM placed KCU under supervision because of operational issues and governance problems. On March 6, 2000, FICOM put KCU under administration and appointed Mr. Jim McQueen interim CEO. KCU continued under administration until January 23, 2001. It remains under supervision.

[8]             When FICOM released KCU from administration in January 2001, KCU appointed Mr. Dalbir Sohi as CEO, a position that he still holds. KCU had initially hired Mr. Sohi as its comptroller in 1991. He remained in that position until 1999 when he became senior manager of operations. As CEO, he oversaw all staff and branch managers, including Ms. Grewal.

BACKGROUND FACTS

A.       Events 2000 – 2005

[9]             As previously mentioned, Ms. Grewal became manager at the Vancouver branch in 1999. In May 2000, an employee of the Vancouver branch brought to Mr. McQueen’s attention certain issues concerning her work. Mr. McQueen hired an outside consultant to review procedures in the Vancouver branch.

[10]         The review concluded that Ms. Grewal had, on a number of occasions, breached KCU’s policies and procedures. She was advised in writing that such conduct was unacceptable and that the breaches had resulted in a loss of trust concerning her ability to carry on with her current position. KCU advised her that they were prepared to provide her with a further opportunity to demonstrate that she was capable of fulfilling the obligations of a branch manager. She was warned that future failures to comply with KCU’s policies and procedures would result in serious disciplinary measures, including termination for cause. She was reassigned from the Vancouver branch to the Abbotsford branch. The reassignment was considered a demotion as the branch in Abbotsford is much smaller than Vancouver.

[11]         Subsequently, Ms. Grewal was appointed manager of the Surrey branch in December 2001. Surrey is the largest KCU branch. She continued in that position until October 24, 2003, when she was reassigned to Abbotsford. She was upset when she was transferred back to Abbotsford because she thought that she had been doing a good job in Surrey. She felt that her good work was not being recognized. She continued as the manager of the Abbotsford branch until October 2005 when she went on disability leave. She then remained off work until August 2006.

[12]         Financial results at both the Surrey and Abbotsford branches improved during Ms. Grewal’s tenure. Loans and deposits increased while delinquencies fell. She met most of her budget targets. Her written performance reviews were generally favourable and she received some increases in her salary.

[13]         During these years, Mr. Sohi wrote Ms. Grewal on several occasions criticizing aspects of her work. The issues he raised were numerous. They included the failure of staff to wear nametags, giving preferred rates on certain loans, failure to spin locks at the end of the day, failure to advise head office of a search warrant, failure to advise head office of the attendance of a FICOM investigator at her branch, late attendance at her office, failure to have regular staff meetings, and arriving late and being disrespectful at a head office staff meeting.

[14]         The criticism in Mr. Sohi’s letters upset Ms. Grewal. She felt much of it was unwarranted. When she received Mr. Sohi’s letters, she often responded by defending her actions. Mr. Sohi considered certain of her responses to be insubordinate and disrespectful.

[15]          Ms. Grewal complained about violations of her privacy. By way of background, Mr. Sohi, on September 15, 2004, had written her about coming into the branch late on two consecutive days. He advised her that if she continued to come late to the branch, the issue would be dealt with severely.

[16]         Ms. Grewal responded in a letter dated September 22, 2004. She advised that on one of the two days she had permission to attend late and that on the other she was late due to traffic congestion. She noted that during her 15 years of employment with KCU, she had never been reprimanded for being tardy. In the last sentence of her letter she wrote:

On another occasion you were verifying my personal information with my staff which is a serious violation of my privacy.

[17]         Ms. Grewal testified that she was told by one of the employees in the branch that Mr. Sohi had been attempting to obtain her licence plate number. She says that by September 2004 she believed that Mr. Sohi was “out to get her” and that his various letters were trying to build a case against her.

[18]         Mr. Sohi wrote to Ms. Grewal on October 27, 2004. He denied ever attempting to verify any personal information about Ms. Grewal from any branch staff member. His letter indicates that he had come to the branch on October 26, 2004, and had asked her about this “so-called personal information”. The letter states that he was told by Ms. Grewal that she did not know and would have to ask the staff member. Mr. Sohi wrote:

I was shocked on hearing your comment of not having any knowledge and accusing me without any proof. I advise you to find out and let me know soon otherwise I would treat the issue without any substance.

[19]         Ms. Grewal did not respond to the October 27 letter. In cross-examination, she said she could not recall Mr. Sohi asking her about the breach of privacy but agreed that he may have asked for particulars. I accept Mr. Sohi’s evidence that he attempted to investigate the alleged breach of privacy but was unable to do so because Ms. Grewal did not provide the information he requested.

[20]         The privacy issue arose again in January 2005. On January 27, 2005, Ms. Grewal spoke to Mr. Sohi concerning a phone call that had been made to her husband’s cell phone. Her husband had reported to her that the call had come from a phone number at KCU’s Surrey branch.

[21]         On February 4, 2005, Ms. Grewal set out her concerns in an email to Mr. Sohi. She noted that the call was to her husband’s personal unlisted phone number. She suggested that the only place this number could have been found was on her cell phone bill, which was mailed to head office. She stated that this was a serious violation of her personal information and asked Mr. Sohi to find out who had made the call and the purpose of the call. In the email, she repeated her previous accusation of a senior official from the credit union attempting to confirm her licence plate number on one of her days off.

[22]         Mr. Sohi responded in a letter dated February 7, 2005. He expressed some surprise at her delay in initially reporting the incident and then not raising it with him personally when she had met with him on January 27. He indicated that in order for him to make inquiries, he required her husband’s cell phone number and the portion of his telephone bill showing the purported call made to him. He also asked her to provide him the name of the senior official who had requested her licence plate number. Ms. Grewal did not supply any of the requested information.

[23]         By March 2005, Ms. Grewal was concerned that her job was in jeopardy. She sought legal counsel. On March 11, 2005, she sent a detailed letter to Mr. Sohi, drafted by her counsel (the “March 11 Letter”).

[24]         The March 11 Letter responded to several of the complaints that Mr. Sohi had made and suggested that some of the criticism was unfounded. It made suggestions as to ways in which KCU’s practises could be improved. Ms. Grewal indicated that she was willing to let the matter of unwarranted invasion of her privacy drop but noted that the larger issue of trust and respect between members of management was extremely important and that activities such as tracing telephone numbers and checking licence plates of managers would only serve to undermine these important qualities of the working relationship. Ms. Grewal sent a copy of the March 11 Letter to Mr. Sohi’s secretary, Jagjit Kaur.

[25]         Mr. Sohi thought the March 11 Letter was insubordinate and a challenge to his authority. He responded on May 13, 2005, and took issue with several specifics of her letter. He noted that he had considered her alleged invasion of privacy but when he had requested details regarding it, she had not responded. He again requested that she provide him the full information in order for him to look into the so-called invasions. She did not provide any further information.

[26]         Matters between Ms. Grewal and Mr. Sohi did not improve after the March 11 Letter. One point of friction was Ms. Grewal’s cell phone bill. KCU paid the first $80 of each monthly cell phone bill. Cell phone bills were initially sent directly to head office for payment. Ms. Grewal was concerned that her personal calls, which were set out on her phone bill, were being reviewed by Mr. Sohi. She redirected the phone bills to her home address and then sent edited copies of the bills to head office. Mr. Sohi advised that KCU would not pay the phone bills unless they were mailed directly to head office.

[27]         Another difficulty arose after a management meeting on April 20, 2005. Ms. Grewal arrived late for the meeting. On April 22, 2005, Mr. Sohi wrote to her advising that her arriving late reflected badly on her. He also noted that he was compelled to stop her from carrying on conversations with another manager during the meeting. He told her that her conduct at the meeting was unprofessional and warned her to desist from such attitude in the future.

[28]         On June 3, 2005, Ms. Grewal responded. She suggested that she had only been a few minutes late, that her conduct had been courteous at all times and that she had never been disruptive.

[29]         Mr. Sohi replied on June 10, 2005. He again suggested that her conduct at the staff meeting was unprofessional. In this letter, he noted that Ms. Grewal had been forwarding copies of her letters to his secretary for filing. He requested that she “provide the reason for this unethical act which again conveys an action of unprofessionalism and insubordination on [her] part”.

[30]         On July 19, 2005, Ms. Grewal responded. She said that she could not agree that sending copies of correspondence to his secretary could in any fashion be described as unethical, unprofessional or insubordinate. She said that it was done solely for the purpose of providing a file copy. She pointedly copied her July 19 letter to Ms. Kaur.

B.       Ms. Grewal’s Mortgage

[31]         A major issue in the litigation concerned the renewal of Ms. Grewal’s personal mortgage on her home. Ms. Grewal initially applied for the mortgage on March 24, 1999. The mortgage was registered on May 3, 1999. The mortgage was for a five-year term with the last payment due on June 1, 2004. Due to an apparent inputting error when the mortgage was entered into KCU’s record system in 1999, it indicated that the mortgage would expire on May 1, 2004, not June 1 as set out in the mortgage agreement.

[32]         The original mortgage was processed through the Vancouver branch while Ms. Grewal was the branch manager. Although she played no role in the approval of her mortgage, the evidence suggests that one of her responsibilities as branch manager was to check the inputting of all mortgages and that she should have caught the inputting error. I note that her failure to do so was of little moment at the time, as there was no way of knowing in 1999 that it would be advantageous to Ms. Grewal that her mortgage expired in May 2004 rather than June 2004.

[33]         However, because of rising interest rates, the expiry date of the mortgage did become a matter of significance in 2004. On March 22, 2004, Ms. Grewal and her husband, in their capacity as members of the credit union, received a computer generated letter from the Vancouver branch advising them that their mortgage was expiring on May 1, 2004 and that KCU was prepared to renew the mortgage subject to current terms and conditions. On March 27, 2004, Ms. Grewal and her husband signed a blank mortgage renewal form which she sent to the Vancouver branch office. On April 5, 2004, the loans officer at the Vancouver branch reserved a renewal rate of 5.65% less a staff discount of 1.5%. The mortgage renewal notice, which is in effect an offer to renew, was completed by the Vancouver branch manager on May 4, 2004. The renewal was then processed and registered.

C.       The “Mortgage Scandal” Memo

[34]         The renewal of the Grewals’ mortgage came to Mr. Sohi’s attention in June 2005. He testified that he came across the mortgage while doing a review of all staff member mortgages. He noted what he considered to be several irregularities with the mortgage. These included the renewal of the mortgage prior to its expiry, no penalty being charged for the early renewal, the acceptance of the renewal by the Grewal’s pre-dating the offer to renew, and the mortgage renewal rate being set after the acceptance of the renewal and prior to the offer to renew being made.

[35]          Mr. Sohi believed the mortgage renewal was evidence of further problems with Ms. Grewal. He was of the opinion that the circumstances surrounding the renewal of the mortgage were completely irregular. He believed that she had received a personal benefit by obtaining a below-market mortgage rate.

[36]         Mr. Sohi prepared a memo to the conduct review committee for a meeting to take place on July 23, 2005. The memo was entitled “Re Mortgage Rate Scandal and Irregularities/Exceptions by Abbotsford Branch Manager”. The memo was three pages in length. The first half page of the memo outlined the circumstances of the mortgage renewal and alleged that Ms. Grewal had gained a personal benefit by granting herself a below-market mortgage. The memo noted that the mortgage was renewed at the lowest rate existing between March 27 and June 4, 2005. The balance of the memo referenced numerous other matters that had arisen over the previous few years concerning Ms. Grewal’s conduct, several of which are set out above. The memo indicated that legal counsel had been retained concerning Ms. Grewal’s “conduct, several incidents of insubordinate behaviour, mortgage rate scandal, irregularities and exceptions ... since the warning of June 2000”.

[37]          On July 23, 2005, the conduct review committee and the KCU board of directors discussed Mr. Sohi’s memo. The KCU executive committee discussed the memo on August 3, 2005. At the executive committee meeting, someone suggested that any problems with the mortgage may have arisen from human error or that another employee could be at fault and that Ms. Grewal should be given the opportunity to explain.

D.       Mr. Sohi’s Investigation

[38]         Subsequent to the executive committee meeting of August 3, 2005, Mr. Sohi sought legal advice as to whether he could terminate Ms. Grewal. On September 20, 2005, he received a written legal opinion. The legal opinion recommended that he speak to Ms. Grewal about the renewal of her mortgage before proceeding any further. He says that he thereafter followed the legal advice and took steps to arrange an interview with Ms. Grewal.

[39]         Before Mr. Sohi could meet with Ms. Grewal concerning the mortgage, Ms. Grewal, on October 7, 2005, went on disability leave. She remained off work until August 28, 2006. In emails dated November 28, 2005 and December 12, 2005,  and a letter dated January 24, 2006, Mr. Sohi wrote to Ms. Grewal advising her there were outstanding issues with respect to her mortgage and that he wanted to meet with her in the near future to discuss these irregularities and give her an opportunity to provide an explanation. He noted that she was presently on leave and proposed various options including: meeting her in the next two weeks provided she was feeling physically capable to do so, providing a list of written questions, or deferring the matter until she returned to work. He asked her to contact him at her earliest convenience to let him know the most convenient method of proceeding.

[40]         The November 28, 2005 email was sent to Ms. Grewal’s home email. There is an issue as to whether the December 12, 2005 email was, in fact, sent. The January 24, 2006 letter was sent both to her email and hand delivered. Ms. Grewal did not respond to Mr. Sohi concerning the mortgage. However, in a letter dated January 26, 2006 she did respond to other matters in the January 24 letter.

[41]         In her direct evidence, Ms. Grewal testified that she was not aware of any alleged mortgage irregularities until she returned to work on August 29, 2006. On cross-examination, she stated she may have received the November 28, 2005 email but did not recall. She clearly received the January 24, 2006 letter because she responded to it. That letter in turn referred to the November 28, 2005 email. Given Ms. Grewal’s ongoing concerns about her employment, the suggestion that she did not know there were outstanding issues concerning her mortgage renewal until August 2006 is not plausible. I do not accept her evidence that she first learned of a potential problem with her mortgage when she returned to work on August 29, 2006.

[42]         Mr. Sohi, as will be discussed below, ultimately met with Ms. Grewal on August 31, 2006. Other than a brief discussion with the Vancouver branch manager in June 2005, Mr. Sohi did not interview anyone else involved in the renewal of Ms. Grewal’s mortgage. Ms. Grewal submits that the lack of any additional investigation shows that Mr. Sohi’s investigation was a sham. Mr. Sohi says he wanted to first interview Ms. Grewal before embarking on any additional investigation.

E.       The FICOM Hearings

[43]         As previously noted, KCU had been under supervision since 1999. Its longstanding goal was to be released from supervision. In March 2005 it applied to be released from supervision. When FICOM denied that request KCU appealed.

[44]         The appeal led to a 12-day hearing which commenced in November 2005. The focus of the hearing was KCU’s governance and, in particular, inappropriate decision-making by its board of directors. One of the specific allegations concerned the board’s interference with Mr. Sohi’s efforts to terminate Ms. Grewal.

[45]         Mr. Sohi testified at length at the FICOM hearing. In the course of his testimony, the September 20 Letter from legal counsel providing legal advice concerning the termination of Ms. Grewal was introduced as an exhibit. In the course of this trial, I ruled that because the letter had become an exhibit at the FICOM hearing, solicitor-client privilege in regard to the letter was lost. I ordered the letter disclosed to Ms. Grewal’s counsel. The letter itself did not become an exhibit at this trial but Mr. Sohi was asked questions concerning it.

[46]         The FICOM decision was published on June 14, 2006 and posted on their website. Paragraphs 91-101 of the decision set out the interactions between Mr. Sohi and the board concerning Ms. Grewal and specifically mention the “Mortgage Scandal” memo. Although Ms. Grewal’s name was blacked out throughout most of the decision, FICOM inadvertently failed to do so on one occasion so that a reader of the decision would know that Ms. Grewal was the employee whose conduct was being discussed.

F.       Ms. Grewal’s Return to Work

[47]         By August 2006, Ms. Grewal was able to return to work and it was agreed she would begin work on August 28, 2006. On August 25, 2006, Mr. Sohi sent her an email advising her that there were several matters that he wished to discuss with her including, but not limited to, the issues set out in his earlier emails of November 28, 2005, December 12, 2005 and his letter of January 24, 2006. He asked that she report to head office on August 28, 2006 at 9:00 a.m. in order to discuss the issues raised in his earlier correspondence, as well as to address ongoing concerns and her employment status with KCU.

[48]         Ms. Grewal testified that she did not check her email before returning to work. As the Abbotsford branch was, in fact, closed on August 28, she did not report to work until August 29, at which time she went immediately to the Abbotsford branch. The acting Abbotsford manager then contacted head office. Ms. Grewal was advised to report to head office.

[49]         When Ms. Grewal arrived at head office on August 29, Mr. Sohi gave her a letter attaching copies of his August 25, 2006 email together with the emails of November 28, 2005, December 12, 2005 and the letter of January 24, 2006. He asked that once she had had the chance of considering the correspondence, she meet with him to discuss the issues mentioned therein.

[50]         Later that day, Ms. Grewal sent a handwritten letter to Mr. Sohi in which she advised that she did not believe she was capable of responding to his concerns immediately and required more time to address the issues. She said she should be able to submit her response by Friday, September 1, 2006.

[51]         On August 30, 2006, she again attended at head office. She provided Mr. Sohi with a letter requesting that he provide written questions about the mortgage irregularities. She also advised that in order to prepare her reply she would need to review the mortgage documents. She was then provided with copies of the mortgage documents but no written questions in regard to the irregularities.

[52]         On August 31, 2006, a meeting took place at head office between Mr. Sohi, two other KCU executives and Ms. Grewal. The initialled notes of that meeting were in evidence. At the meeting, Ms. Grewal was asked a series of questions concerning her mortgage. She did not know the questions in advance. She had, however, sought and received legal advice before attending the meeting.

[53]         The initial questions concerned the circumstances surrounding the set-up of the 1999 mortgage. Ms. Grewal said she was not aware until the interview that the maturity date had been wrongly entered in KCU’s system. She had no recollection as to whether it was a matter she had checked in 1999 when the mortgage was disbursed. She acknowledged that she had not paid a penalty for early renewal of her mortgage. She had no idea whether someone had waived the early renewal penalty.

[54]         Ms. Grewal said she did not know the circumstances the led to the rate for her mortgage renewal. When asked who approved the rate, she said she did not know. When asked which KCU employees had been involved in processing and approving the mortgage renewal, she said she had nothing to say. When it was suggested that she knew that her mortgage matured on June 1, 2004 and not May 1, 2004, she said she had nothing to say about the question. When asked about the conflicting dates on the renewal notice of March 27, 2004, April 5, 2004 and May 4, 2004, she again said she had nothing to say.

[55]         At trial, Ms. Grewal acknowledged that she knew which KCU employees were involved in the renewal. She also explained that the reasons for the conflicting dates on the renewal notice arose because she had signed the renewal form in blank on March 27 and others had subsequently completed the form.

[56]         There is some conflict in the evidence as to what occurred immediately following the meeting. Ms. Grewal says that she asked Mr. Sohi when she would be returning to the Abbotsford branch and that he responded “What makes you think you are going back as branch manager?” She says that Mr. Sohi told her that he would contact her about where she should report to work.

[57]         Mr. Sohi denies that this conversation took place. He says that Ms. Grewal asked for a copy of the minutes of their meeting and he told her that he would need to speak to his legal counsel first. He says that at 5:00 p.m. she told him that he could email her the minutes and then left the office. He says he expected her to report back to work the next day and was surprised when she did not return.

[58]         At the end of the August 31 meeting, Mr. Sohi states that he had not made any determination as to whether the mortgages irregularities were or were not intentional. He testified that he intended to carry on with his investigation but he took no further steps upon receiving the September 1 Letter.

G.      Legal Correspondence

[59]         On September 1, 2006 at approximately 1:00 p.m., the September 1 Letter from Ms. Grewal’s counsel was hand delivered to Mr. Sohi. In the letter, Ms. Grewal’s counsel indicated that the reasons of the FICOM hearing had recently come to his attention. He suggested that an allegation of dishonesty levelled at a senior manager of a financial institution was extraordinarily serious and if untrue, a form of defamation of the most egregious sort. He noted that the FICOM decision stated that in June 2005 Mr. Sohi had raised these allegations with the board and that he had provided a lengthy and detailed report. Ms. Grewal’s counsel also referenced the previous day’s meeting, in which Mr. Sohi had met with Ms. Grewal to discuss the mortgage renewal issue. He stated that the “scandal” was nothing more than a mistake in a Form B with regard to the initial mortgage and that it was clear that Ms. Grewal had done nothing even slightly improper, let alone scandalous.

[60]         The September 1 Letter went on to reference what were described as “serious unwarranted invasions of our client’s privacy, done by you or at your direction over the past year.”  It suggested that Mr. Sohi had levelled petty complaints against Ms. Grewal as an obvious pretext to discipline and dismiss her. The letter then continued:

We demand that within 21 days from the date of this letter you issue a written apology to Mrs. Grewal acknowledging that your actions in going to the board of directors, testifying on oath at the FICOM hearing, levelling this untrue accusation of a mortgage scandal at her and repeatedly making baseless allegations of performance failures in her job as a manager were done by you in bad faith with the intent of injuring Mrs. Grewal and her reputation. You must promise to refrain from any and all such conduct in the future. Clearly, you will need to obtain legal advice in resolving this very serious matter. As Mrs. Grewal’s solicitors we will want to review the apology letter in order to ensure that it addresses all of our client’s concerns regarding her mistreatment at your hands. This letter must be addressed to our client and copies provided to the board of directors of the credit union and to Ms. Jay Mitchell, Deputy Superintendent of Credit Unions and Trusts.

In the event that we receive a timely apology which is satisfactory to our client we have instructions to release you and the credit union from liability for this tortuous conduct. If you choose not to apologize we will commence an action against you and the credit union seeking compensatory and punitive damages.

[61]         The letter was copied to the KCU board of directors and to Ms. Mitchell, the Deputy Superintendent of Credit Unions and Trusts.

[62]         Mr. Sohi found the letter aggressive. He was surprised by its many accusations. He was not prepared to apologize because he did not believe he had done anything wrong.

[63]         No response having been received to the September 1 Letter, Ms. Grewal’s counsel again wrote to Mr. Sohi on September 6, 2006 (the “September 6 Letter”). In the September 6 Letter counsel did not resile from any of the positions taken in the September 1 Letter. He indicated that he had now had the opportunity to discuss the events of August 31 with his client, which only served to confirm his assertion that Mr. Sohi had acted with utmost bad faith towards her. He said that the events of August 31 were intended to humiliate his client and entirely consonant with the “spurious allegations” against his client. The letter noted that Ms. Grewal had not been contacted since the August 31 meeting and asked whether or not Ms. Grewal was terminated and if she was not terminated to advise immediately where she should report to work. This letter was also sent to the KCU board.

[64]         KCU’s counsel responded in a letter dated September 19, 2006 (the “September 19 Letter”). The September 19 Letter denied the various allegations set out in Ms. Grewal’s counsel’s letters of September 1 and September 6. It indicated that the information in those letters was incomplete, inaccurate and based on selective facts. The letter concluded:

There will be no apology from the credit union to Ms. Grewal. The credit union’s enduring patience with Mrs. Grewal’s insubordination, failure to follow policies and procedures and other improper conduct displays the utmost good faith in attempting to secure a workable employment relationship. Ms. Grewal has, however, made this virtually impossible. Your letter itself evidences Ms. Grewal’s ongoing willingness to disclose only partial information, while concealing relevant information even to her own lawyer. Further, it evidences Ms. Grewal’s ongoing willingness to attack her employer, giving our client every reason to seriously consider whether her conduct is compatible with continued employment with the credit union. Nonetheless, the credit union has not terminated Ms. Grewal. The credit union takes the position that the foregoing incidents of Ms. Grewal’s insubordination, refusal to follow policies and procedures and other improper conduct, demonstrates she has acted in a manner that is incompatible with continued employment with the credit union that Ms. Grewal herself has thereby severed the employment relationship and it is clearly her intention not to return.

We hope that this answers the issues raised in your letters. If your client wishes to commence an action against our client, as you suggested, we have instructions to accept service.

[65]         On September 22, 2006, Ms. Grewal`s counsel responded. He denied that Ms. Grewal had severed the employment relationship and reiterated that she was ready, willing and able to continue her employment.

H.       Search For New Employment

[66]         Following the end of her employment, Ms. Grewal made several attempts to find new jobs in the financial services sector. She says her job search was hindered for several reasons including her limited work experience with a single small credit union, her poor English language skills  and the circumstances of her departure from her employer. She made lists of various contacts who she knew and she saw several individuals to seek their assistance in finding new employment. She looked for jobs at various websites and did make some online applications. She says she came across few suitable positions.

[67]         Ultimately, Ms. Grewal abandoned her search for new employment. She took and passed the mortgage brokers course and has, since June 2007, worked as a mortgage broker.

POSITION OF THE PARTIES

A.       Ms. Grewal

[68]         Ms. Grewal submits that she is entitled to 24 months’ notice less earnings made in mitigation plus a significant award for punitive damages.

[69]         Ms. Grewal submits that an employer carries the burden of proving just cause on a balance of probabilities. She submits that the so-called “mortgage scandal” was an invention of Mr. Sohi from its inception, created to justify her termination. She submits that Mr. Sohi targeted Ms. Grewal throughout. She asks the Court to disbelieve his evidence that he came across the alleged mortgage irregularities while conducting a profitability analysis of staff mortgages. She submits that there is no evidence to support that contention. She says the Court should find that he intentionally went to Ms. Grewal’s mortgage file in the hopes of discovering something that could form the basis for cause to dismiss her.

[70]         In support of her submissions, Ms. Grewal notes that Mr. Sohi conducted no independent investigation into the alleged mortgage scandal. He did not interview any witnesses or make inquiries of the credit union employees who were identified on the mortgage documents. She submits that a review of the mortgage documents does not provide any basis to suspect wrongdoing on her part.

[71]         Ms. Grewal rejects the suggestion that she resigned from her employment. She submits that consulting a lawyer concerning employment is not grounds for dismissal and that the September 1 Letter cannot be viewed as a repudiation of the employment contract. She submits that in the circumstances of this case, the September 1 Letter cannot constitute a resignation. To hold otherwise would establish a rule that no matter what sort of false allegations are made against an employee, the employee is not entitled to seek legal advice or threaten an action for deliberate tortuous conduct directed against her employer without facing the risk that she will be deemed to have voluntarily terminated the contract of employment. She submits she had the right to seek a remedy for deliberate dishonest conduct leading to false allegations being levelled against her.

[72]         Ms. Grewal also notes that her counsel’s letters of September 6 and September 22, 2006 indicated that she was ready, willing and able to return to her management duties and was awaiting word as to where to report. She submits that in the circumstances of this case, not only was there no clear communication of an intention to resign, there was, in fact, an unequivocal affirmation of her willingness to continue her employment as branch manager.

[73]         Ms. Grewal further submits the September 1 Letter cannot be considered a repudiation of the contract of employment. She says to accede to the submission that the letter is a repudiation of the contract of employment would be to condone dishonest behaviour and deny an employee affected by such conduct recourse to legal services without first losing her job. Such a result, she submits, is simply not just.

[74]         Ms. Grewal further submits that, to the extent that KCU alleges that her accumulated conduct establishes cause, in the circumstances of this case cause does not exist. She denies any insubordination or failure to follow work policies. In any event, she submits that KCU had condoned the now criticized conduct.

B.       KCU

[75]         KCU denies that it dismissed Ms. Grewal on August 31. Rather, it submits that Ms. Grewal effectively resigned or abandoned her employment on or about September 1, 2006.

[76]         KCU’s position is that the September 1 Letter was tantamount to resignation. The September 1 Letter threatened legal action, which is incompatible with continued employment and provides just cause for dismissal without notice. It submits that her conduct was inconsistent with continued employment and demonstrated an intention to bring the employment relationship to an end.

[77]         KCU further submits that if Ms. Grewal was dismissed on August 31, KCU had cause to do so. Ms. Grewal’s lack of candour at the meeting of August 31 concerning her mortgage was a serious act of insubordination giving rise to cause for dismissal. In the circumstances, KCU had a legitimate right to make inquiries concerning the circumstances involving the creation and renewal of the plaintiff’s mortgage. Ms. Grewal’s subsequent failure to cooperate in that investigation was therefore cause for dismissal.

[78]         KCU submits that the renewal of Ms. Grewal`s mortgage raised legitimate concerns and warranted an investigation. It submits that Mr. Sohi sought, received and followed legal advice in regard to his investigation of the renewal and that the decision not to interview others before Ms. Grewal was a reasonable approach to the investigation. KCU denies that there was any breach of Ms. Grewal’s privacy or that Mr. Sohi targeted Ms. Grewal.

[79]         KCU further submits that it can rely on the cumulative acts of misconduct through to August 31, 2006 to justify her dismissal. It submits that the cumulative effect of Ms. Grewal’s actions is sufficient to establish just cause. In this regard, it points to a pattern of increasing insubordination and insolence directed at Mr. Sohi from late 2004 onward. It submits that Ms. Grewal repeatedly refused clear and reasonable directions from her employer. KCU submits that the various acts of insubordination, when considered together, reveal a pattern of defiance and disrespect towards Mr. Sohi that gives rise to just cause for dismissal.

[80]         KCU submits that Ms. Grewal’s bad conduct culminated in the September 1 Letter. It submits that  the September 1 Letter, which was copied to the KCU board, made her continued employment impossible.

FINDINGS OF FACT

[81]          The parties view the events leading up to the end of Ms. Grewal’s employment through very different lenses. Both parties challenge the others’ credibility. Given the number of years that have passed since the central events in this litigation took place, it is not surprising that there are some inconsistencies in the evidence of each party. The failure to recall precise dates or what occurred at a specific meeting can be explained by the passage of time. Other evidentiary lapses are not so easily explained.

[82]         For instance, in her direct examination, Ms. Grewal testified that she did not know of any difficulties with regard to the renewal of her mortgage until she returned to work in August 2006. In cross-examination, she acknowledged receipt of the letter of January 24, 2006 and agreed that she had been told of problems with the mortgage prior to her return to work. I find that Ms. Grewal was aware of issues concerning the mortgage prior to her return to work.

[83]         In her direct evidence Ms. Grewal denied that she had ever sought work outside the credit union prior to September 1, 2006. She had given similar evidence on her examination for discovery. She also denied that she had indicated to Mr. Sohi in November 2004, January 2005 or in October 2005 that she was considering working elsewhere.

[84]         However, in cross-examination, when confronted with a document that indicated she had sought a position as a loans officer at another financial institution in June 2006, she acknowledged that her answer that she had not sought work elsewhere prior to September 2006 was not correct. She continued, however, to deny ever speaking to Mr. Sohi about seeking work elsewhere.

[85]         Mr. Sohi made notes of the November 2004 and January 2005 conversations shortly after they took place. In his July 23, 2005 memo to the conduct review committee, Mr. Sohi noted that Ms. Grewal had advised him on November 17, 2004 that she had applied for a job with other institutions and on January 28, 2005 she had told him that she had given his name as a reference and that he may be getting calls from them. In his letter of October 26, 2005 to Ms. Grewal, Mr. Sohi noted that she had told him in their recent telephone conversation that she was considering not returning to the credit union. Unlike other occasions when she had written to correct statements of Mr. Sohi, Ms. Grewal did not respond to or correct his October 26, 2005 letter.

[86]         I do not accept Ms. Grewal’s evidence that she had not advised Mr. Sohi in 2004 and 2005 that she was considering not returning to the credit union and was seeking work elsewhere. Mr. Sohi’s contemporaneous notes of those conversations were made long before any litigation was contemplated. I accept his evidence that those conversations took place.

[87]         I also prefer Mr. Sohi’s evidence over that of Ms. Grewal’s concerning the alleged privacy violations. Ms. Grewal raised those issues based on information given to her by her husband and another employee at the Abbotsford branch. Those parties were not called to verify the incidents. Mr. Sohi denied that he had ever violated her privacy. The contemporary correspondence shows that when those matters were brought to his attention, he sought further information from Ms. Grewal concerning them. In particular, he attended at the Abbotsford branch in October 2005 and Ms. Grewal was unable or unwilling to tell him the name of the employee who had advised her that someone was checking her license plate.

[88]          I find that Mr. Sohi was justified in conducting the mortgage investigation. There were irregularities on the face of the documentation which raised questions that required an explanation. At the same time, I agree with plaintiff’s counsel that it was inappropriate to describe the circumstances surrounding the mortgage as a “scandal” in the July 23, 2005 memo. While that may have been the view of Mr. Sohi, he certainly did not have sufficient facts at that time to reach such a conclusion or represent it as such to the committee.

[89]         While Mr. Sohi may well have personally concluded in July 2005 that Ms. Grewal’s conduct warranted termination, he did not act on that view. Rather, he sought legal advice and was advised that the circumstances surrounding the mortgage renewal had to be investigated. To that end, he set out to interview Ms. Grewal. The delay in conducting the investigation was not caused by Mr. Sohi’s reticence, but rather Ms. Grewal’s refusal or failure to take any steps to meet with Mr. Sohi in spite of his repeated requests to do so.

[90]         Ms. Grewal suggests that the mortgage investigation was a sham. She says that if Mr. Sohi was carrying out a bona fide investigation, he would have interviewed the other employees who were involved in her mortgage. Mr. Sohi says he did not intend the investigation to end with his interview of Ms. Grewal but he wished to interview her first before speaking to the other employees.

[91]         Mr. Sohi says the investigation was carried out pursuant to the legal advice he had received. The legal advice was disclosed to plaintiff’s counsel. If Mr. Sohi followed a course other than that set out in the legal advice, one would expect that plaintiff’s counsel would have put the contrary legal advice to Mr. Sohi and sought his explanation as to why he was not following his lawyer’s recommendations.

[92]         I find that the mortgage investigation was not a sham and that Mr. Sohi was properly entitled to embark on such an investigation once the mortgage renewal documents came to his attention. I find that in carrying out his investigation, Mr. Sohi followed the legal advice he had received.

[93]         It is of little matter whether Mr. Sohi came across the documents by chance or deliberately. When a credit union manager borrows money from her own credit union, she cannot expect that those documents will not be examined by senior management. This is particularly so at a credit union which has long been under supervision.

[94]         I do accept Ms. Grewal’s evidence that when she left KCU on August 31, 2006 she understood that she would be contacted about where and when she should report to work and that she was not required to return to work on September 1, 2006. Her evidence is consistent with comments in the September 6 Letter. In this regard, I also note that the September 19 Letter does not suggest that Ms. Grewal abandoned her employment by failing to attend after August 31, 2006.

DISCUSSION

A.       Overview

[95]         The major issue in this litigation is whether Ms. Grewal resigned or was dismissed from her employment. If she was dismissed, the question is whether she was dismissed for cause.

[96]         Different legal tests apply when determining whether an employee resigned or was dismissed. The finding of dismissal is based on an objective test: whether the acts of the employer objectively viewed amount to a dismissal. A finding of resignation, however, requires an application of both a subjective and objective test: whether the employee intended to resign and whether the employee’s words and acts, objectively viewed, support a finding that she resigned. The tests were summarized in Beggs v. Westport Foods Ltd., 2011 BCCA 76 at paras. 36-37:

[36]      It is common ground that both a dismissal by an employer and a voluntary resignation by an employee require a clear and unequivocal act by the party seeking to end the employment relationship. There is a distinction, however, in the tests to be met in order to establish each of these methods for ending the employment relationship. A finding of dismissal must be based on an objective test: whether the acts of the employer, objectively viewed, amount to a dismissal. A finding of resignation requires the application of both a subjective and objective test: whether the employee intended to resign and whether the employee’s words and acts, objectively viewed, support a finding that she resigned.

[37]      David Harris summarizes the distinction between the two methods in his text Wrongful Dismissal, loose-leaf (consulted on 13 January 2011), (Toronto: Thompson Canada Ltd. 1989) at pages 3-4, 3-5 and 3-9:

§3.0 Dismissal

Summary: Dismissal is a matter of substance, not form. It is effective when it leaves no reasonable doubt in the mind of the employee that his or her employment has already come to an end or will end on a set date

...

The crucial factor in assessing the effectiveness of a dismissal is the clarity with which it was communicated to the employee. Mr. Justice Macfarlane of the British Columbia Court of Appeal stated the law in this regard as follows in Kalaman v. Singer Valve Co. (1997), 31 C.C.E.L. (2d) 1, 93 B.C.A.C. 93, 151 W.A.C. 93, 38 B.C.L.R. (3d) 331, [1998] 2 W.W.R. 112, 97 C.L.L.C. 210-017, 1997 Carswell BC 1459, [1997] B.C.J. No. 1393:

A notice must be specific and unequivocal such that a reasonable person will be led to the clear understanding that his or her employment is at an end at some date certain in the future. Whether a purported notice is specific and unequivocal is a matter to be determined on an objective basis in all the circumstances of each case. (p. 11 [C.C.E.L.]; emphasis added)

...

§3.0A Dismissal versus Voluntary Resignation

Summary: The test for voluntary resignation (as opposed to dismissal) is objective, focusing on the perceptions of a “reasonable employer” of the intentions of the employee based on what the employee actually says or does or, in some cases, on what he or she fails to say or do. Among the relevant circumstances are the employee’s state of mind, any ambiguities in relation to the conduct which is alleged to constitute “resignation” and, to a certain degree, the employee’s timely retraction, or attempted retraction, of his or her “resignation.”

[Emphasis added.]

B.       Did Ms. Grewal Resign?

[97]         KCU submits that the September 1 Letter was an ultimatum to the employer to “apologize or else”. It relies on Larsen v. Airarms Fasteners and Industrial Ltd., [1999] B.C.J. No. 883 (S.C.); Billows v. Carnac Forest Products Ltd., 2003 BCSC 1352; and Kirby v. Amalgamated Income Limited Partnership, 2009 BCSC 1044, as authority that ultimatums of this nature are tantamount to resignation.

[98]         In the September 19 Letter, KCU took the position that Ms. Grewal had severed the employment relationship. Such a conclusion is not consistent with the surrounding facts. Ms. Grewal had only just returned to work on August 29. At no time did she indicate that she intended to resign. Indeed, on August 31 she inquired of Mr. Sohi when she would be returning to work. That she still intended to work for the credit union was confirmed in her counsel’s letters of September 6 and 22. The September 1 Letter did not contain words that amounted to an express resignation and her subsequent conduct does not support an intention to resign. Ms. Grewal did not demonstrate a clear and unequivocal intention to end the employment relationship.

[99]         I find that Ms. Grewal did not resign her employment.

C.       Termination for Cause

[100]     I find that Ms. Grewal was dismissed by the September 19 Letter. That letter made clear that Ms. Grewal’s employment was terminated. The question is whether she was terminated for cause.

[101]     Generally, absent a fixed term contract or contractual notice provision, it is an implied term of the employment contract that an employer may dismiss an employee by giving the employee reasonable notice or payment in lieu. However, if the employer shows cause, the employee may be dismissed without notice or payment in lieu: Ansari v. British Columbia Hydro and Power Authority (1986), 2 B.C.L.R. (2d) 33 at 36 (S.C.), aff'd (1986), 55 B.C.L.R. (2d) xxxiii (C.A.) (“Ansari”).

[102]     In Adams v. Fairmont Hotels & Resorts Inc., 2009 BCSC 681, the defendant terminated the plaintiff without notice and alleged just cause. Madam Justice Wedge set out the applicable legal principles concerning just cause for termination at paras. 276 - 283:

[276] In general, just cause is employee behaviour that, viewed in all the circumstances, is seriously incompatible with the employee's duties; it is conduct which goes to the root of the contract and fundamentally strikes at the employment relationship: Panton v. Everywoman's Health Centre Society (1988), 2000 BCCA 621 at para. 28,82 B.C.L.R. (3d) 364.

[277] Conduct amounting to insubordination sufficient to establish cause for dismissal was described half a century ago by Lord Evershed in the oft-cited decision of Laws v. London Chronicle (Indicator Newspapers), Ltd., [1959] 2 All E.R. 285 at 287 (Eng. C.A.):

[S]ince a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is, no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard - a complete disregard - of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master and that, unless he does so, the relationship is, so to speak, struck at fundamentally

[278] As noted in Laws, insubordination will not constitute cause unless the employer establishes that the employee breached an "essential condition of the contract of service". That may occur, said the Court in of Appeal in Panton at para. 33, where the employee has wilfully defied a "clear and unequivocal" instruction or refused "to carry out a policy or procedure well known by the employee to be central to the fulfilment of the employer's objectives".

[279] The Court in Panton also cited its earlier decision in Stein v. British Columbia (Housing Management Commission) (1992), 65 B.C.L.R. (2d) 181, 41 C.C.E.L. 213 (C.A.) where, after citing Laws, Southin J.A. said the following at 4:

I begin with the proposition that an employer has a right to determine how his business shall be conducted. He may lay down any procedures he thinks advisable so long as they are neither contrary to law nor dishonest nor dangerous to the health of the employees and are within the ambit of the job for which any particular employee was hired. It is not for the employee nor for the court to consider the wisdom of the procedures. The employer is the boss and it is an essential implied term of every employment contract that, subject to the limitations I have expressed, the employee must obey the orders given to him.

[280] More recently, the Supreme Court of Canada in McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161, considered whether, and in what circumstances, a single instance of employee misconduct will justify dismissal. The narrow issue in McKinley was whether an employer was justified in terminating an employee for a single act of dishonesty.

[281] The Court concluded that in order to establish just cause based on an isolated incident of misconduct, the employer must demonstrate that the employee has, by reason of the misconduct, repudiated the employment contract or one of its essential conditions. The Court said: "... [A]n employee's misconduct does not inherently justify dismissal without notice unless it is 'so grievous' that it intimates the employee's abandonment of the intention to remain part of the employment relationship": McKinley at para. 33.

[282] The Court went on to say that in order to determine whether repudiation has occurred, both the circumstances surrounding the alleged misconduct and the degree of misconduct must be carefully examined. Mr. Justice Iacobucci, writing for the Court, described this analysis as "the contextual approach" to just cause for termination of an employee. The contextual approach includes an examination of the category of misconduct and its possible consequences, all of the circumstances surrounding the misconduct, the nature of the particular employment contract and the status of the employee: McKinley at para. 33.

[283] While the narrow issue in McKinley concerned employee theft, it has broader application as a result of the Court's endorsement of the "contextual approach" to the question of whether an employee has repudiated his or her contract of employment. In each case, the nature of the alleged misconduct and all of the relevant circumstances surrounding the misconduct must be considered. Further, as noted by the Court in McKinley, the contextual approach leaves the trier of fact with discretion as to whether a particular act of misconduct necessarily gives rise to just cause.

[103]     In Chan v. Ling, 2006 BCSC 1243 at para. 28, Dillon J. summarized circumstances in which an employer may terminate an employee for cause:

[28]      An employer has just cause to summarily dismiss an employee if he has been guilty of serious misconduct, habitual neglect of duty, incompetence, conduct incompatible with his duties or prejudicial to the employer’s business, or wilful disobedience to the employer’s orders in a matter of substance (Port Arthur Shipbuilding Co. v. Arthurs (1967), 62 D.L.R. (2d) 342 at 348 (Ont. C.A.), rev’d on other grounds, [1969] S.C.R. 85). An employer has the right to set reasonable directions or procedures and to expect that employees will follow them (Stein v. British Columbia (Housing Management Commission) (1992), 65 B.C.L.R. (2d) 181 (C.A.); Billows v. Canarc Forest Products Ltd. (2003), 27 C.C.E.L. (3d) 188 at 203 (B.C.S.C.)). Insubordination by failure to follow procedures can be cause for dismissal (Candy v. C.H.E. Pharmacy Inc. (1997), 31 B.C.L.R. (3d) 12 at 16 (C.A.); Aeichele v. Jim Pattison Industries Ltd. (1992), 44 C.C.E.L. 296 at 302 (B.C.S.C.) [Aeichele]). The diversion of company funds for personal purposes in a deceptive and devious manner may justify dismissal despite the fact that no monetary damage has resulted to the company as this conduct represents a complete breakdown of trust (Christensen v. McDougall (2001), 14 C.C.E.L. (3d) 44 at para. 69 (Ont. Sup. Ct.)).

[104]     In this case, KCU submits that Ms. Grewal’s continuing course of unsatisfactory conduct which culminated in the September 1 Letter justifies dismissal for cause. It submits that Ms. Grewal constantly failed to follow directions and procedures and was insubordinate. It points to the copying of correspondence to Mr. Sohi’s secretary after she was specifically ordered not to do so. It says that Ms. Grewal had an obligation to cooperate in the mortgage investigation and failed to do so. When ultimately questioned concerning the mortgage, she did not fully disclose the information that was known to her:  Obeng v. Canada Safeway Limited, 2009 BCSC 8.

[105]     Taken by themselves, and without regard for the September 1 Letter, I find that Ms. Grewal’s conduct had not yet reached the point where KCU had cause to dismiss her. As of September 1, Mr. Sohi had not completed his investigation into the mortgage. Whether that investigation would have uncovered sufficient evidence to justify her dismissal is not something I need determine.

[106]     However, the September 1 Letter tips the balance. The language of the letter was disrespectful and inflammatory. The accusations were serious and covered most aspects of her working relationship. The letter demanded that her superior, Mr. Sohi, acknowledge that he had acted in bad faith with the intent of injuring Ms. Grewal and her reputation. Mr. Sohi had to apologize for his conduct, the apology had to be in terms acceptable to Ms. Grewal’s counsel and he had to refrain from future criticism of her performance.

[107]     The September 1 Letter was not substantiated by the facts. It alleged serious unwarranted invasions of Ms. Grewal’s privacy, none of which have been proven. Further, it suggested that Mr. Sohi has been levelling petty complaints against Ms. Grewal as a pretext to discipline and dismiss her as an employee.

[108]     However, based on the evidence at trial, I find that most if not all of the criticisms of Ms. Grewal had some substance to them. While I have found that the use of the word “scandal” in regard to the mortgage was a clear overstatement, Mr. Sohi did not dismiss Ms. Grewal because of the mortgage. Rather, he gave Ms. Grewal an opportunity to explain the circumstances surrounding the mortgage. The letter says that Mr. Sohi intentionally set out to destroy her reputation by making false allegations. I find as a fact that he did not.

[109]      The September 1 Letter was sent not only to Mr. Sohi, but also to the board of directors and the credit union regulator. The letter was obviously intended to do serious damage to Mr. Sohi. The criticism of Mr. Sohi was disrespectful in tone and language and was irreconcilable with Ms. Grewal’s continued employment.

[110]     As noted in McKinley v. BC Tel, [2001] 2 S.C.R. 161, Ms. Grewal’s conduct must be assessed within a contextual approach. The September 1 Letter cannot be considered in a vacuum. It was the culmination of a litany of ongoing difficulties in the employment relationship. While the prior matters in themselves may not have justified termination, KCU was entitled to consider her past misconduct in determining whether it had just cause for dismissal: Nossal v. Better Business Bureau of Metropolitan Toronto Inc. (1985), 19 D.L.R. (4th) 547 (Ont. C.A.).

[111]     Ms. Grewal was the branch manager of the credit union. She was in a position of trust and responsibility. In order for her to perform her duties, it was essential she retain the confidence of her superiors. The September 1 Letter permanently undermined the employment relationship and made it impossible for Ms. Grewal and Mr. Sohi to continue working together. In the totality of the circumstances, the September 1 Letter constituted just cause for dismissal:  Van Der Meij v. Victoria Immigrant and Refugee Centre Society, 2008 BCSC 954 at para. 60. I find that KCU had just cause to terminate Ms. Grewal.

D.       Damages

[112]     Given my conclusion that Ms. Grewal was dismissed for cause, it is not necessary to assess damages. I have, however, decided to do so in order to assist the parties if this matter proceeds further.

i. Period of Reasonable Notice

[113]     In Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 326, the Supreme Court of Canada affirmed that the factors to be considered in determining reasonable notice are the character of employment, the length of service of the employee, the age of the employee and the availability of similar employment having regard to the experience, training and qualifications of the employee.

[114]     Absent exceptional circumstances, 18 to 24 months is the upper limit for reasonable notice: Ansari. The upper limit of 24 months is generally reserved for employees in senior management positions: Burry v. Unitel Communications Inc. (1997), 46 B.C.L.R. (3d) 349 (C.A.).

[115]     Ms. Grewal worked for KCU for almost 17 years. While she held an important position in the credit union, KCU itself is a relatively small financial institution. Her counsel submits that the minimum notice period would be in the order of 15 months. Taking all of the appropriate factors into consideration, I find that reasonable notice in the circumstances of this case would be 16 months.

ii. Mitigation

[116]     Ms. Grewal had a duty to take reasonable steps to mitigate her loss. The onus is on KCU to show that had she taken reasonable steps to mitigate she likely would have obtained alternative employment:  Michaels v. Red Deer College, [1976] 2 S.C.R. 324.

[117]     The manner in which Ms. Grewal’s employment ended made it most difficult for her to find another position in the financial industry sector. Her language limitations did not make her the most attractive of possible candidates. Her decision to begin a new career as a mortgage broker was in the circumstances she faced reasonable. I find that KCU has failed to meet the onus upon it to establish that Ms. Grewal failed to take reasonable steps to mitigate her loss. I would not reduce the award for failure to mitigate.

iii. Punitive Damages

[118]     Ms. Grewal’s claim for punitive damages is premised on her submission that KCU violated its duty of good faith and fair dealing in a most egregious fashion. In my findings of fact, I have rejected that submission. I find that KCU had legitimate concerns about Ms. Grewal. Even if others conclude that those concerns did not justify her dismissal, the concerns were such that KCU’s investigation was justified and an award of punitive damages is not warranted.

SUMMARY

[119]     I find Ms. Grewal was dismissed for cause. If I had found otherwise, she would have been entitled to 16 months’ notice less those sums that she earned during the notice period.

[120]     The action is dismissed. KCU is entitled to its costs on Scale B.

“R.B.T. Goepel J.”

________________________________________

The Honourable Mr. Justice Richard B.T. Goepel