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Docket: |
CA026982 |
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Registry: Vancouver |
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COURT OF APPEAL FOR BRITISH COLUMBIA |
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BETWEEN: |
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ATAMAH SINGH |
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PLAINTIFF |
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AND: |
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BRITISH COLUMBIA HYDRO AND POWER AUTHORITY |
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DEFENDANT |
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Before: |
The Honourable Madam Justice Ryan |
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The Honourable Madam Justice Saunders |
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The Honourable Madam Justice Proudfoot |
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Appellant appearing on his own behalf |
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P.F.J. Lewis |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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April 27, 2001 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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December 4, 2001 |
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Written Reasons by:
Reasons for Judgment of the Honourable Madam Justice Ryan:
INTRODUCTION
[1] On January 17, 1995 British Columbia Hydro and Power Authority ("B.C. Hydro") terminated the employment of the appellant, Atamah Singh, as part of a company-wide reorganization and restructuring operation. At the time of his dismissal Atamah Singh had worked for the corporation for 18 years. Mr. Singh began his employment with B.C. Hydro in 1976 as a janitor. On his departure he held the lower management position of Mail Room Supervisor.
[2] Mr. Singh sued the corporation for wrongful dismissal. He claimed that his termination was a breach of contract which provided employment until retirement; he claimed that his termination was discriminatory on the basis that he was a visible minority in that the respondent had retained employees hired after 1992 in favour of the appellant; he claimed that he was dismissed when he was under medical supervision in contravention of the Employment Standards Act; alternatively, he claimed that if his contract did not provide him with employment until retirement, he had been dismissed without just cause and without reasonable notice.
[3] The respondent conceded that the appellant had been fired without cause under a re-organization plan. The respondent's position was that it had fulfilled its obligations to the appellant when it paid to the appellant a compensation package which reflected 20.5 months of remuneration in lieu of reasonable notice.
[4] The trial judge, on an application under Rule 18A of the Supreme Court Rules, rejected the appellant's claims and awarded the respondent costs.
THE GROUNDS OF APPEAL
[5] Atamah Singh appeals the dismissal of his action. He submitted that the trial judge erred in all of his findings, including the award for costs. He submitted, for the first time in this Court, that his termination from B.C. Hydro was in violation of his equality rights under the Canadian Charter of Rights and Freedoms (the "Charter"). The appellant also sought to file fresh evidence.
FACTUAL BACKGROUND
[6] The evidence revealed that the appellant emigrated from Malaysia, where he was born, to Canada in 1970 after obtaining a Bachelor of Arts in Economics from Punjab University in India in 1969. Mr. Singh worked for two companies doing janitorial work before he obtained the same type of work with B.C. Hydro in 1976.
[7] In 1982 Mr. Singh became part of junior management when he was promoted to the position of Manager of Building Services.
[8] In 1988 B.C. Hydro implemented the Early Retirement Incentive Plan. This plan was designed to reduce the corporation's workforce by offering early retirement to long-term employees with no penalty or reduction in pension packages. Mr. Singh attested that as a result of these workforce reductions, the general atmosphere and morale at B.C. Hydro was low.
[9] On August 11, 1988, Mr. Larry Bell, Chairman of B.C. Hydro, in response to an "employee attitude survey" which revealed that the employees' first concern was job security, issued a circular to all employees entitled "Let's Make It Happen", "Employment Security - A Two-way Commitment." The memorandum stated:
As you know, one of our goals is to be the best employer. In setting that goal we want to create, within the company, a culture that fosters and reinforces everyone's commitment to the achievement of our corporate objectives and ultimately, our mission. This requires our commitment as a company to you but it also requires your commitment to the company.
. . . our employment levels will normally grow when the economy is strong and shrink when it is weak. In the past, when we had a period of sustained growth, our employment level became very high. When a severe recession came, drastic steps had to be taken to reduce employment to a lower level. This was very painful for people and we are committed to taking steps to prevent this happening again.
Commencing this year, each group in Hydro will be required to prepare a five-year manpower plan.
Under these plans base staffing levels will be established above which temporary employees and purchased services will be used to accommodate the demands generated by changing economic conditions. A more coordinated and comprehensive training and career development effort will also form part of the plans. An example of where this concept is already in place is Systems Development where such a plan was developed following receipt of the Stone and Webster Report. To meet the base level of employment established under the plan, we will be hiring engineers into full-time permanent positions, this fall, for the first time since 1980. With these plans in place, we will be in a better position to ensure secure continuing employment for our regular employees.
This does not mean job security in the sense that job functions and organizations won't change and evolve in future years in response to changing markets, technology and customers needs. Hydro, like any other responsible company, must change in response to these forces.
We can expect cost-effective purchasing of services, technological change and reorganization to continue. However, our commitment to you is that all employees affected by these changes will be given alternative job opportunities without loss of salary. This is the approach we have taken over the past year where Hydro has purchased services, and we have been successful in placing all affected employees who sincerely wanted to stay with Hydro and adapt to new jobs. We fully expect that we can continue to make good on this promise in the future.
Where we have privatized sections of the company, we have committed ourselves to ensuring that employment opportunities continue for the employees involved, and that salaries and benefits are maintained or enhanced. Our record on Mainland Gas and Rail privatization is a clear demonstration of this. In the future certain corporate services, such as C&MS and R&D, may well be privatized. Our commitment to the affected employees is that job opportunities will be provided and existing wages and benefits will be maintained or enhanced.
Now, your commitment to the company. You will all have to be flexible. In some cases the job opportunities may require retraining and/or relocation.
With this commitment from you we will, where changes are necessary, offer as many opportunities as we are able - not just one "take it or leave it" offer.
We will work with you on a cooperative basis to identify your strengths, talents, attitudes and what you want to get out of the job and try to offer training opportunities appropriate for the individual and the company. And we will pay for any such training or relocation. We recognize that productivity in the short term may decline but we are prepared to accept that and be patient, since this is consistent with our commitment to career development over the longer term.
[Emphasis added.]
The next paragraph dealt with the benefits to the employee of relocation should it be necessary. It then continued:
In sum then, our commitment to you, our employees, together with your commitment to flexibility and furthering the objectives of the company equals job security.
The memorandum ended with the names of people to contact should any employee feel that the company was not living up to its commitments.
[10] On examination for discovery Mr. Singh said that he kept this memo along with a number of others in a box in his house. He remembered them, but "they didn't sort of make an impact on me until a month or so" before he went to see his lawyer.
[11] By way of a notice of motion to introduce fresh evidence Mr. Singh presented this Court with documentation that on January 10, 1989 he enrolled in the "CORE" program. In doing so, he gave up his membership in "Mapes" and was no longer covered by the Mapes Collective Agreement. I will return to this evidence later in these reasons.
[12] In November 1989 Mr. Singh accepted a "lateral transfer" to a temporary position as Mail Room Supervisor.
[13] On March 14, 1990, a bulletin entitled "For Your Information", "Flexibility Key to 90-91 Plans" was issued to all employees. The last paragraph stated:
Employment security as outlined in the 1989 policy statement for core staffing remains the base for our staffing commitment. Although some increase in regular employment will be occurring there will be restraints on additions. A temporary hold on regular staff at current levels for the first quarter will be implemented although there will be exceptions for high priority programs. In addition, replacement of vacancies will be authorized as required as will new positions if other positions are made vacant. This is prudent in view of the economic uncertainty. Other requirements will be met with temporary employment and contracting for peak requirements. This flexibility allows employment guarantees for our regular employees.
[14] On June 12, 1990, Mr. Singh's position as Mail Room Supervisor became permanent. He indicated that he took the position at the request of a human resources manager. Mr. Singh maintained that the manager told him that it would be in his best interest to take on a new challenge in order to fulfil his commitment to job rotation. Mr. Singh said that he accepted the position "in order to expand my knowledge of extra skills in different areas."
[15] John Ashurst, Manager of Shared Services for B.C. Hydro, asserted that the change in position was not imposed upon Mr. Singh. Mr. Ashurst said that such interdepartmental transfers were encouraged within B.C. Hydro from time to time as opportunities for managers to gain broader experience within the company.
[16] Over the subsequent few years, further bulletins and policy statements were issued to the employees. They echoed the same sentiments as expressed in the August 11, 1988 memo.
[17] A subtle shift in policy was reflected in a January 29, 1992 "For Your Information" bulletin by W.R. Wyman, Chairman and C.E.O. of B.C. Hydro. It was entitled "Changes in Staffing Strategy". The bulletin began by stating:
In 1988, to address specific concerns about employee morale, it was decided to introduce an employment security framework and with it a core staffing strategy. This involved use of long term temporary employees and purchasing of contracted services to meet peak requirements, while maintaining a base number of regular employees to deal with ongoing workload. That was almost four years ago and it is now necessary to modify that approach to deal with the uncertainties that have arisen from the increasing use of temporary employees.
[18] The bulletin advised employees that the corporation would increase its number of regular positions. It said, "The employment security provisions that now apply to regular employees will continue for those employees." The bulletin stated that employees who moved from temporary to regular positions between April and May 1992 would be covered by the same security provisions, but employees appointed to regular positions after that period would not. The reason for this was because, "With a larger ratio of regular employees we cannot realistically provide the same level of employment security. . . ." It continued:
At the same time I want to reassure all employees as to our commitment to manage our resources in a manner that will continue to provide the greatest extent of employment security possible. This means carefully monitoring regular staffing levels to minimize the risk of job loss to regular employees that could result from a requirement to respond to the changing markets, technology, or a weak economy.
[Emphasis in text.]
[19] Mr. Wyman issued another bulletin 12 days later in which he stated, ". . . we fully expect they [regular employees hired before May 1992] will be unaffected even in the event of a severe economic downturn."
[20] On July 26, 1993, B.C. Hydro issued a "Corporate Policy Statement", the subject of which was entitled "Employment Security." It contained these paragraphs:
POLICY:
Base staffing levels will be established, when budgets are prepared, through a human resource planning process. A coordinated training and career development effort will form part of these plans. Management is responsible for meeting fluctuation in work demands above base staffing levels through the use of temporary employees and purchased services.
Where adjustments to job functions and organization structure result in job loss, the affected employees will be offered alternate job opportunities to the extent possible, without reduction in salary and benefits. Such adjustment will be managed in a compassionate and cooperative manner with attention being given to both the needs of the organization and the circumstances of the individual concerned.
Employees are expected to be flexible in terms of adjusting their career paths to adapt to changes within the organization. In some cases, this may require retraining and/or relocation, and if so, B.C. Hydro will assume reasonable costs associated with the transition.
[Emphasis added.]
[21] The next circular was less subtle. In a "For Your Information" bulletin, entitled "The personal impact of change" issued November 9, 1994, the President and C.E.O. of B.C. Hydro, John Sheehan, promised to minimize the impact of re-organization on the staff, but gave no assurances that those who lost their positions would be offered others. The bulletin stated in part:
As our effort to redefine the company unfolds, it is likely a number of duplicate and overlapping positions will be identified. How this may translate in terms of how we organize work and deploy resources is not yet clear. Our intent is to minimize the unnecessary impact on staff but take advantage of efficiency opportunities in the newly structured organization.
Our leadership team will be considering a number of alternatives to layoffs as the restructuring moves ahead. These include retraining for redeployment, taking advantage of positions held open since the "soft freeze" started in May, the release of consultants or contractors where regular staff is available, early retirements and release of temporary staff. Hydro's workforce may well be smaller after the reorganization is implemented, but that will be an outcome of the restructuring; it is not an objective.
. . .
The timetable for our restructuring calls for the structural details of the new organization to be settled by January 1, 1995, and final staffing positions to be completed by March 31.
We are very much aware of your concerns and wish to reassure you they will be addressed as quickly as we possibly can. We will do our best to keep you well informed throughout the process.
[22] In late 1994 and early 1995, approximately 555 of B.C. Hydro's employees were terminated. This figure is comprised of 118 regular management employees, 45 temporary employees and a number of unionized employees. Within the division in which the appellant worked, 13 managers in total lost their jobs.
[23] The appellant had been treated for depression and was absent from work from October 24, 1994 to January 1995 at which time he was returning to work on a gradual basis. Throughout this period the appellant was on salary continuance.
[24] The appellant received his notice of termination on January 17, 1995. The letter was given to him by Mr. Ashurst. In the letter the appellant was provided with two and a half months' notice of termination, offered 18 months' salary, and was advised to seek independent legal advice regarding the terms of his termination. The appellant was not obliged to work during the two and a half month period and elected not to do so.
REASONS FOR JUDGMENT
[25] The question posed by the appellant at trial was whether the memoranda, to which I have referred in the passages above, formed a contractual term between the appellant and respondent for lifetime employment.
[26] The trial judge began with a statement of the law by McLachlin J. (as she then was) in Rahemtulla v. Vanfed Credit Union (1984), 51 B.C.L.R. 200 (B.C.S.C.). In that case McLachlin J. dealt with the nature of a contract of employment and the implications of a policy manual reviewed by the employee prior to her termination. McLachlin J. said at p. 207:
However, quite apart from this, if the terms of the policy manual are to be binding, it must be concluded that they have contractual force. The usual elements of a contract must be established: a concluded agreement, consideration, and contractual intention.
[27] The trial judge also quoted from the reasons for judgment of the trial court, the Court of Appeal for Manitoba, and the Supreme Court of Canada in the 1997 case of Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, 152 D.L.R. (4th) 1; appealed from (1995), C.C.E.L. (2d) 41 (Man. C.A.). In that case Mr. Wallace was recruited by Logan, a manager of United Grain Growers Ltd. ("United"), to work as a salesman for a wholly-owned subsidiary of United, Public Press. Mr. Wallace had 25 years of experience working for a competitor and had the experience United wanted. Mr. Wallace was concerned about leaving secure employment for another job. He was assured by Logan that if he performed as expected he could continue to work for United until retirement. Wallace worked for Public Press for 14 years and was the top salesman when he was summarily dismissed. Wallace was 59 years of age at the time. Wallace claimed that he had a fixed-term contract for employment until retirement. He was unsuccessful on this point at trial and in the Court of Appeal. When his case reached the Supreme Court of Canada, Iacobucci J., speaking for the majority said this at para. 72:
The appellant submitted that the courts below erred in rejecting his claim that he had a fixed-term contract for employment until retirement. The learned trial judge exhaustively reviewed all of the circumstances surrounding Wallace's hiring and concluded that there was insufficient evidence to support his claim. The Court of Appeal accepted the facts as they were found by the trial judge and agreed with his conclusion. In light of these concurrent findings of fact, I see no palpable error or other reason to interfere with the conclusion of the courts below.
[28] In the case at bar the trial judge noted the principles enunciated by Lockwood J. in the trial decision of Wallace reported at [1993] 7 W.W.R. 525. Lockwood J. wrote at p. 536:
In my view, the making of a fixed-term contract, whilst not inconceivable, would happen rarely, if at all. A skilled employee may wish to better himself by moving to other employment. A company may wish to rid itself of an employee either for cause or without cause. In the latter event, it would have to compensate the former employee. In the present case, with 20 years still to go before retirement at 65, it is unlikely that either side would have wanted to limit itself to a fixed-term contract. I agree with counsel for the defendant that such contract would be so special in nature that it would have to be worded in very explicit terms.
[29] The trial judge in the case at bar then moved to what was said regarding Wallace in the Court of Appeal. In that court, Scott C.J.M said this, at paras. 66-67:
He [the trial judge] accepted Wallace's evidence that he wanted a guarantee of security, and that this was his main reason for moving from his former employment to Public Press. Wallace testified that he was assured that if he did "no wrong" he could "expect to continue to work for the defendant until retirement."
Nonetheless the trial judge concluded that there was no binding fixed-term contract to the age of retirement. I think he was correct in doing so. General expressions of inducement such as found by the trial judge are rarely intended or accepted as creating binding legal obligations. I am in entire agreement with Lockwood J.'s view that "such a contract would be so special in nature that it would have to be worded in very explicit terms" . . . and, I would add, most certainly in writing.
[30] The trial judge in the case at bar summed up his analysis and conclusion on this issue in the following way, at para. 35:
In order for a statement or arrangement as between employer and employee to have contractual force, there must be, in my view, an intention to contract, mutual consideration, and offer and acceptance, including a communication of that acceptance. Policy manuals and, in this case, memoranda from the employer, particularly those distributed years after his employment has commenced, can only be given contractual effect in very specific and stringent conditions. In my respectful view, those conditions do not exist in this case. The expressions contained within the various memoranda are qualified. They are qualified in a manner of expectation and in a temporal sense. There is no commitment in express words, and certainly not in the express language referred to in the authorities to which I have referred, which would give expression and force to such a formidable term as a provision for lifetime job security.
[Emphasis added.]
[31] As I read it, the sentence - "They are qualified in a manner of expectation and in a temporal sense" - is the trial judge's acceptance of B.C. Hydro's argument that the language in the memorandum of August 1988 was meant to express the company's intention to use its best efforts to provide job security within the duration of the five-year manpower plans prepared by B.C. Hydro.
THE FIRST GROUND OF APPEAL
Do the memoranda constitute a contractual offer of lifetime employment?
[32] In determining whether the memoranda constituted a contractual offer of lifetime employment the trial judge correctly adverted to the statement of the law found in The Law of Contracts, 4th ed., by Waddams where the author stated, at p. 105:
The principle function of the law of contracts is to protect reasonable expectations engendered by promises. It follows that the law is not so much concerned to carry out the will of the promisor as to protect the expectation of the promisee. This is not, however, to say that the will of the promisor is irrelevant. Every definition of contract, whether based on agreement or on promise, includes a consensual element. But the test of whether a promise is made, or of whether assent is manifested to a bargain, does not and should not depend on an enquiry into the actual state of mind of the promisor, but on how the promisor's conduct would strike a reasonable person in the position of the promisee.
[33] The trial judge posed his threshold question - "[D]oes the language of the memoranda . . . form a contractual term between the plaintiff and the defendant?" - and answered it in the negative. In my view he was correct.
[34] The August memo expressed a belief that B.C. Hydro expected to fulfill its promise of job security to the employees. While the memorandum articulated a positive and determined expectation that the company would provide job security to its employees, no reasonable person in the position of a B.C. Hydro employee would conclude that the pledge was intended to form a part of his or her contract of employment.
[35] It is not just the language of the memoranda, but the context in which they were published which persuades me that this is so. The memoranda were issued regularly and changed in depth of commitment throughout the years. The trial judge noted that these memoranda were sent to all of the employees at B.C. Hydro. Would a reasonable person infer that B.C. Hydro was, through a system of office memoranda offering lifetime employment to all of its employees? Such a significant step would be offered in clear terms with provisions for the employees to plainly acknowledge their acceptance of a change in their contracts of employment.
[36] For these reasons I would not disturb the conclusion of the trial judge that the memoranda do not reveal an intention to have the corporation's assurances to the employees become terms of their employment contracts.
[37] In my view this conclusion disposes of the first ground of appeal. I should note here, however, that the trial judge went on to decide that the evidence did not reveal that Mr. Singh had consented, at any time, to an alteration in the terms of his employment contract. At the hearing of this appeal, the appellant submitted a document entitled "PDM II Employee Change of Status" which he apparently signed on January 10, 1989. In a box marked "DESCRIPTION OF CHANGE" are the words, "ENROLL EMPLOYEE IN CORE". Mr. Singh submitted that this demonstrated that he had given up membership in Mapes in favour of CORE and that he did so in reliance on the promises set out in the memoranda. Given my acceptance of the trial judge's finding that the memoranda did not constitute an amendment, or an offer to amend, the appellant's employment contract, a finding in his favour on this point would make no difference to this ground of appeal. I would therefore admit the fresh evidence, but dismiss this ground of appeal.
THE SECOND GROUND OF APPEAL
Did the trial judge err in failing to refer to evidence led at trial by the appellant?
[38] The evidence in this case revealed that in 1991 a joint venture had been struck between B.C. Hydro and a company known as ABB, which involved numerous unionized B.C. Hydro employees being transferred to a new joint-venture company. In a memorandum dated May 28, 1991, B.C. Hydro advised its employees that "the same employment security protection as currently exists at Hydro" would be extended for a period of time to those who joined the joint venture.
[39] The appellant argued that this was a contractual term offered to the joint-venture employees and that it was therefore proof that job security was a contractual term with the other employees at B.C. Hydro.
[40] Mr. Ashurst testified that the joint-venture employees had a very specific contract with B.C. Hydro which provided for their re-hire when the joint-venture dissolved. The employees were in fact re-hired by B.C. Hydro when the joint venture dissolved. Mr. Ashurst said that once they returned in 1994, they had the same job protection as everyone else at B.C. Hydro.
[41] Neither this Court nor the trial judge had the benefit of examining the contract which was said to have been made between the joint-venture employees and B.C. Hydro. Even if we had, the terms of the contract could make no difference to the interpretation of the memoranda we were asked to examine in this case. The memoranda must stand for interpretation on their own.
[42] At trial, Mr. Singh argued that B.C. Hydro breached his contract of employment when his position was terminated in 1995. He alleged that B.C. Hydro favoured the former joint-venture employees who were re-hired after 1994, by retaining them when the company terminated the appellant's position in 1995. The suggestion was that this was contrary to the memoranda issued by B.C. Hydro distinguishing between the job security of employees hired before and after 1994. The trial judge did not refer to this argument in his reasons for judgment. Having found against the appellant on the interpretation of the memoranda, it was unnecessary for him to do so.
[43] Given that I have upheld the trial judge's reasons pertaining to the first ground of appeal, I would dismiss this ground of appeal accordingly.
THE THIRD GROUND OF APPEAL
Did the respondent discriminate against the appellant when it terminated his position?
[44] The appellant asserted discrimination based on an allegation that the respondent offered certain former joint-venture employees relocation back to B.C. Hydro at roughly the same time he was dismissed from the company. The trial judge held that on the basis of the affidavit evidence that the process followed was a systematic one which did not exercise discriminatory conduct. I am unable to say that the trial judge was wrong in reaching this conclusion.
[45] The appellant attempted to raise the Charter in support of his argument of discrimination. The Charter applies to actions of the state. I am doubtful that it applies to the situation in the case at bar. In any event it is not open to the appellant to raise this issue in this Court, having failed to raise it at the trial level. An appellate court should not decide an issue put before it for the first time unless it is satisfied that it has all the facts necessary to decide the issue. I am not satisfied that we do. I would dismiss this ground of appeal.
THE FOURTH GROUND OF APPEAL
Did the trial judge err in holding that the notice period of 20.5 months was reasonable?
[46] In concluding that the notice period was reasonable, the trial judge said this, at paras. 43-44:
With respect to the period of reasonable notice, the third issue posed, the seminal case with respect to the standard to be applied is Bardal v. Globe and Mail Ltd., [1960] O.W.N. 253, 24 D.L.R. (2d) 140 (Ont. H.Ct.J.). In that decision, Chief Justice McRuer wrote the following at 145:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.
In my respectful view, having reviewed the various cases to which I have been referred, in my view, there is nothing in the present case that would take this case out of the general upper limit referred to in some of those authorities. That general range is 18 to 24 months, given the background of this particular plaintiff. In my view, the notice given, which amounts to 20.5 months, was reasonable in the circumstances of this case.
[47] In finding that there was nothing in the present case to take it out of the general upper limit, the trial judge failed to refer to the promises of job security and the termination of the appellant on his return to work after a two-month absence for medical reasons. The passage I have quoted demonstrates that the trial judge did not take these factors into account. In my view he should have done so.
[48] In the Wallace case in the Supreme Court of Canada Iacobucci J. said this about promises of job security at paras. 84-87:
Several cases have specifically examined the presence of a promise of job security: see e.g. Makhija v. Lakefield Research (1983), 14 C.C.E.L. 131 (Ont. H.C.), affirmed by the Ontario Court of Appeal (1986), 14 C.C.E.L. xxxi; Mutch v. Norman Wade Co. (1987), 17 B.C.L.R. (2d) 185 (S.C.). In particular, I note that the British Columbia Court of Appeal recently adopted this approach in Robertson v. Weavexx Corp. (1997), 25 C.C.E.L. (2d) 264. The facts of this case were very similar to those currently before this Court. Writing for the court, Goldie J.A. stated at pp. 271-72:
Also part of the inducement to the respondent in making the move he did was, no doubt, the discussions as to long term employment. . . . As I have concluded, those discussions lacked contractual force in terms of the respondent's assertion of a fixed term contract but nevertheless, they were and are, in my opinion, significant on the issue of reasonable notice.
In my opinion, such inducements are properly included among the considerations which tend to lengthen the amount of notice required. I concur with the comments of Christie et al., [Employment Law in Canada, 2nd ed. (Toronto: Butterworths, 1993)], and recognize that there is a need to safeguard the employee's reliance and expectation interests in inducement situations. I note, however, that not all inducements will carry equal weight when determining the appropriate period of notice. The significance of the inducement in question will vary with the circumstances of the particular case and its effect, if any, on the notice period is a matter best left to the discretion of the trial judge.
In the instant case, the trial judge found that UGG went to great lengths to relieve Wallace's fears about jeopardizing his existing secure employment and to entice him into joining their company. At p. 172 the trial judge stated:
The [respondent] wanted a man with the skills of the [appellant] and to get him was prepared to accommodate his demands. . . . I have found that there was no fixed-term contract. However, there was, in the assurance given to him, a guarantee of security, provided he gave the [respondent] no cause to dismiss him. [Emphasis added.]
In addition to the promise that he could continue to work for the company until retirement, UGG also offered several assurances with respect to fair treatment. Further, despite the fact that the company only had salary arrangements with their existing employees, they assured Wallace that they would implement a commission basis for him. Although the trial judge did not make specific reference to the inducement factor in his analysis of reasonable notice, I believe that, in the circumstances of this case, these inducements, in particular the guarantee of job security, are factors which support his decision to award damages at the high end of the scale.
[49] Iacobucci J. continued at para. 88 with a discussion of "bad faith". He said:
The appellant urged this Court to recognize the ability of a dismissed employee to sue in contract or alternatively in tort for "bad faith discharge". Although I have rejected both as avenues for recovery, by no means do I condone the behaviour of employers who subject employees to callous and insensitive treatment in their dismissal, showing no regard for their welfare. Rather, I believe that such bad faith conduct in the manner of dismissal is another factor that is properly compensated for by an addition to the notice period.
[50] Specifically referring to the termination of an employee returning from sick leave, Iacobucci J. said this, at paras. 100-101:
In Corbin [v. Standard Life Assurance Co. (1995), 15 C.C.E.L. (2d) 71], the New Brunswick Court of Appeal expressed its displeasure over the conduct of an employer who made the decision to fire the employee when he was on disability leave, suffering from a major depression. The employee advised the manager as to when he would be returning to duty and informed him that he was taking a two-week vacation. He was fired immediately upon his return to work. . . . [The court turned to another example where an employee learned he had been fired by reading it in the newspaper.]
These examples by no means exhaust the list of possible types of bad faith or unfair dealing in the manner of dismissal. However, all are indicative of the type of conduct that ought to merit compensation by way of an addition to the notice period. I note that, depending upon the circumstances of the individual case, not all acts of bad faith or unfair dealing will be equally injurious and thus, the amount by which the notice period is extended will vary. Furthermore, I do not intend to advocate anything akin to an automatic claim for damages under this heading in every case of dismissal. In each case, the trial judge must examine the nature of the bad faith conduct and its impact in the circumstances.
[51] In this case B.C. Hydro knew that Mr. Singh had been ill but was making an effort to fulfill his duties to the company by returning to work on a gradual basis. It was during that time of struggle for Mr. Singh that the company chose to let him go.
[52] I am of the view that these factors are significant in this case. The respondent, through the memoranda I have outlined, fostered a climate of job security in its workplace. By allaying the employees' fears that they would lose their employment in troubled times, B.C. Hydro could expect a happier and more productive workforce. It was only just before the appellant's position was terminated that the company memoranda ceased promising job security. For his part, knowing that the company had a stated policy of relocating its long-time employees in times of re-organization, Mr. Singh would have had little motivation to find other employment. The company provided an inducement to stay and weather the storm. Further, the termination of Mr. Singh's position at a time when, having suffered medical problems, he was attempting to return to work, was obviously injurious to him.
[53] In my view the circumstances of this case are exceptional. Mr. Singh was repeatedly assured that his employment with B.C. Hydro was secure. After a difficult illness he was making an effort to fulfill his responsibilities to the company by returning to work on a gradual basis when his position was abruptly terminated. In my view these factors, along with those referred to by the trial judge, entitle Mr. Singh to a notice period of 27 months.
[54] I would set aside the order of the trial judge dismissing the appellant's action and award him the value of 27 months' salary in lieu of notice.
[55] In light of the appellant's partial success, I would set aside the order of costs in the court below. Each party should bear its own costs of the trial. The appellant will have his costs in this Court.
"The Honourable Madam Justice Ryan"
I AGREE:
"The Honourable Madam Justice Saunders"
I AGREE:
"The Honourable Madam Justice Proudfoot"