Action by the plaintiff for
damages for wrongful dismissal. The plaintiff was employed by the
defendant for almost his entire working life as a personal injury claims
adjuster. On his way to work one day he noticed a reckless
car driving on the highway. When he arrived at work he saw what he
thought was the same car. After bringing this incident to the attention
of his supervisor he looked through the computer records to determine
the driving record of the owner, an employee of the same company. After
noting that the owner had a very poor record, the plaintiff wrote an
anonymous letter to the owner. The letter was discovered to have been
written by the plaintiff and when questioned he initially denied he
wrote the letter, however, after some thought he admitted his
dishonesty. At no time did the plaintiff have any ulterior
motive for these actions and he truly believed what he did was
appropriate given that he had brought it to the attention of his
immediate supervisor who appeared to give approval. As
a result of the dishonesty he demonstrated by searching through the
private computer records and lying to a supervisor he was dismissed.
HELD: Action
allowed. While dishonesty was always a ground for dismissal
the conduct complained of was required to be considered in all the
circumstances. Here the plaintiff lied but did not maintain
the lie for a significant period of time. There was no detrimental
reliance by the defendant on the dishonesty of the plaintiff before the
lie was corrected. The conduct of the plaintiff was better
characterized as a serious mistake in judgement and therefore did not
constitute a breach of his contract of employment. Given that
the plaintiff had minimal prospects for employment based on his age of
56, the length of service to the employer and the fact that he would
have been employed until age 60, as well as the monopoly held by the
defendant in the insurance industry in British Columbia, the plaintiff
was entitled to 24 months notice.
| Counsel
for the Plaintiff: R.H. Hamilton
and N. Mitha.
Counsel for the Defendant: J. Sullivan and S. Wells.
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¶ 1
HARVEY J.:— The plaintiff's action is for damages
for wrongful dismissal.
¶ 2
Counsel for the defendant submits it had just cause to
terminate the employment of the plaintiff, being his dishonest conduct. He
submits as a matter of law dishonesty is always cause for dismissal.
¶ 3
Counsel for the plaintiff submits the plaintiff's actions
are not to be considered in a vacuum beginning on a certain day and
ending a few moments later. He submits it is the entirety of
the plaintiff's conduct which spanned over one month which is to be
considered in this matter before one can conclude whether the plaintiff
was dishonest. He submits upon consideration of this conduct
the plaintiff was honest.
THE FACTS
¶ 4
The plaintiff is presently 56 years of age. He
will be 57 on October 16, 1995.
¶ 5
The plaintiff has spent almost his entire working career in
the insurance industry in personal injury claims adjusting. He
entered employment by I.C.B.C. in January 1974 virtually at its
inception. In 1992, his employment was that of a unit manager
at the South Richmond Claims Centre where he supervised eight or nine
adjusters. He reported directly to the Claims Centre manager,
Mr. Gordon Fleming.
¶ 6
Mr. Fleming's superior was Mr. Barry Ringham. Mr. Ringham's
title is that of manager of claims operations and includes the
supervision of a number of claims centres. While Mr. Ringham had little
direct communication with the plaintiff, what communication he had left
the plaintiff with the impression he was not considered to be in Mr.
Ringham's "good books". It appears this feeling may
have been engendered by reason of what occurred during the plaintiff's
1988 performance review and shortly thereafter with regard to an action
plan.
¶ 7
In the course of his eighteen year working career with
I.C.B.C., the plaintiff served his employer honestly and faithfully. He
had never received any discipline from I.C.B.C. His last
complete performance rating for the year 1991 reads, in part,
"achieving overall job requirements."
¶ 8
The events under consideration in this case commence on July
14, 1992 and end on September 2, 1992 when the plaintiff's employment
with I.C.B.C. was terminated for cause.
¶ 9
On July 14, 1992, the plaintiff was driving to work when he
witnessed a woman driving a white Ford Tempo motor vehicle in an erratic
and dangerous manner. The plaintiff's attention was first
drawn to this vehicle when it approached his vehicle from the rear at a
speed such that he expected his vehicle might be struck. From this point
forward, the plaintiff observed the vehicle, noticing that it changed
lanes, overtook some vehicles, and cut in front of others. At
a point in the driving, the plaintiff was able to note the license plate
number of the vehicle. The plaintiff says he was angry and
upset about the driving of this unknown motorist, considering she
endangered his safety and that of other persons using the highway.
¶ 10
The plaintiff arrived at the South Richmond Claims Centre at
about 7:45 a.m. at which time he noticed in the parking lot a white Ford
Tempo similar to the vehicle he had observed earlier in the morning. He
noted that the license plate number of the vehicle had the same first
three digits as the license plate number which he had recorded and that
the remaining three numbers were close to those he had recorded. When
he realised that the white Ford Tempo in the parking lot was a vehicle
driven by his immediate superior, Mr. Fleming, it occurred to him the
Ford Tempo vehicle he had observed being driven erratically was one
which was also owned by I.C.B.C. and, in keeping with the hierarchy
within the Corporation, was probably driven by a senior manager. He
was angered that a senior manager of I.C.B.C. would drive in such a
dangerous and erratic manner.
¶ 11
As was often the case, the plaintiff met with Mr. Fleming in
the coffee room. He discussed his concern regarding the
driving he had observed and his belief that the vehicle was probably
being driven by a senior manager of I.C.B.C. During the
course of their discussion Mr. Fleming suggested the names of two women
employees and then a third name, being that of Leona Stewart, a Claims
Centre manager, whom he knew would have been travelling on the highway
at this time. Mr. Fleming recalls the plaintiff looking up
the license number on the I.C.B.C. computer system.
¶ 12
During a coffee break later that morning, Mr. Fleming said
the plaintiff informed him he was going to look up Ms. Stewart's driving
record on the system computer. He recalls being shown the
driving record of Ms. Stewart later in the day. The driving
record disclosed nine driving offences for exceeding the applicable
speed limits within the previous five year period.
¶ 13
The information which the plaintiff accessed was available
to virtually every employee of I.C.B.C. who had the use of a computer
terminal. The information was obtained from the
Superintendent of Motor Vehicles and kept within the computer system for
access by employees of I.C.B.C. in the course of their work.
¶ 14
It is apparent Mr. Fleming was fully aware of the plaintiff
accessing the information from the computer. In
cross-examination, Mr. Fleming was asked whether he considered the use
of the computer to access the information in question constituted a
breach of I.C.B.C.'s code of ethics to which he replied:
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I don't think it did
because it involved a company (I.C.B.C.) vehicle and company
business which is not against the code of ethics.
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¶ 15
I mention in passing I consider Mr. Fleming's evidence in
this regard to be consistent with one provision of the said code
requiring employees to report incidents of abuse of such information.
¶ 16
In a similar vein, the plaintiff says the idea that his
actions in accessing this information might offend I.C.B.C.'s code of
ethics did not occur to him. In his mind, the accessing was
clearly for business purposes as it related to an employee of I.C.B.C.,
operating a vehicle owned by I.C.B.C. on company business.
¶ 17
The plaintiff concluded he should pursue the matter. He
was reluctant to communicate his concern to Mr. Ringham because of what
he considered was their unsatisfactory past relationship. In
his view, leaving the matter for Mr. Fleming would have probably
produced the same result as would the writing of a letter identifying
himself. He decided that he would write an anonymous letter
to the then president of I.C.B.C., Ms. Robyn Allan, in which he
accurately described the erratic and dangerous driving of the woman
motorist but in terms that suggested the letter came from a person not
employed by I.C.B.C. and stated the license plate number of the vehicle
and that it was owned by I.C.B.C.
¶ 18
The plaintiff's attempt at anonymity was destined to fail. He
had forgotten or was unaware that his computer terminal used to access
the information from the computer could be traced as to its location and
the time or times of its use.
¶ 19
The anonymous letter is dated July 15, 1992. I
assume it was received by Ms. Allan on or about that time. The evidence
is silent as to what occurred until August 6, 1992. On that
date, the President's Committee Meeting Minutes indicate that Mr. Derek
Thomas, the Manager of Human Resources, was instructed to review
"the violation of the vehicle and driver's license data
bases". On the following day, Mr. Thomas instructed a
staff computer expert to review the computer monitoring files. This
review indicated that Ms. Stewart's driver files were accessed on July
14, 1992 in such a manner to obtain a license number and a driving
record and that the accesses were made from a terminal located in the
office of the plaintiff with the computer access code being that of the
plaintiff.
¶ 20
Mr. Thomas instructed Mr. Ringham to interview the plaintiff
on August 14th "to ascertain Mr. Petit's accounting and explanation
of these events". Mr. Ringham was made aware of the
anonymous letter but was not provided with a copy.
¶ 21
Mr. Ringham did not turn the matter over to Mr. Fleming, who
was completing a vacation prior to his retirement, nor did he involve
the new Claims Centre manager recently appointed to that office.
¶ 22
Some time during the late afternoon of Friday, August 14,
1992, Mr. Ringham arrived at the Richmond Claims Centre. Mr.
Ringham arrived at the Claims Centre unannounced. He had not given the
plaintiff advance notice or warning of any kind that he would be
attending upon him for the purpose of investigating events which had
occurred on or about July 15th and July 16th. He proceeded to
the plaintiff's office in the building. The plaintiff was on
the phone at the time and observed Mr. Ringham apparently waiting to see
him.
¶ 23
After entering the plaintiff's office, Mr. Ringham informed
the plaintiff that an anonymous letter had been written to Ms. Allan and
that Leona Stewart's driving record had been accessed from the
plaintiff's computer terminal. He informed the plaintiff that
he considered this to be a serious violation of the code of ethics of
I.C.B.C. Mr. Ringham asked Mr. Petit if anyone else had access to his
computer terminal I.D. and whether he had any reason to access Leona
Stewart's driving record. The plaintiff answered in the
negative to both questions.
¶ 24
Mr. Ringham then asked the plaintiff if he had written an
anonymous letter to the president of I.C.B.C. The plaintiff
denied knowledge of the anonymous letter.
¶ 25
The plaintiff says the matters raised during the meeting
took him by surprise and that he was scared. He became very
apprehensive with the assertion of Mr. Ringham that he was investigating
a serious breach of the code of ethics of I.C.B.C. He had previously
understood the accessing of the computer data was appropriate, the
matter having been discussed openly and candidly by him with his
immediate superior, Mr. Fleming. He was also made
apprehensive by the very presence of Mr. Ringham as his inquisitor.
¶ 26
For these reasons, he says he responded as he did to gain
some time. Shortly after Mr. Ringham left the meeting, he
says he decided that he had to contact him and admit that he had lied. He
searched the Claims Centre premises but was unable to locate Mr. Ringham. He
concluded as it was the end of the working day, Mr. Ringham had probably
left by automobile to drive to his home.
¶ 27
After arriving home, that evening he wrote a letter to Mr.
Ringham in which, inter alia, he admitted he had lied to him in relation
to his responses to the two inquiries made of him, he was extremely
sorry for what he had done, and requested that he be given an
opportunity to discuss the matter further with him.
¶ 28
He did not attempt to communicate with Mr. Ringham by
telephone as I understood his intention to be he wished to meet with Mr.
Ringham for the purpose of delivering the letter to him and "to
discuss the matter further with you if I might". In the
early morning the next day, Saturday, the plaintiff drove to the Ringham
residence in White Rock. He was informed Mr. Ringham was not
home, and was playing golf. The plaintiff left the letter with a member
of Mr. Ringham's family requesting that it be given to him on his
return. Mr. Ringham did not communicate with him during the
weekend.
¶ 29
The plaintiff saw Mr. Ringham next on Monday, August 17,
1992 at the South Richmond Claims Centre. The conversation
focused on the anonymous letter.
¶ 30
Mr. Ringham reported to Mr. Thomas and Mr. H.G. Reid,
Vice-President Claims, by way of his memorandum dated August 17, 1992. In
that memorandum, he stated the following:
|
I asked Gerry if he had
any previous dealings with Leona, any underlying reason to treat
this situation involving a fellow manager in what has been
described as a malicious act. Gerry again replied
that he had only met Leona once, did not really know her, and
simply wanted to get his point across to senior management.
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Gerry did mention
something interesting in his defence. He mentioned that Robyn
Allan had been asking for input from staff i.e. call me, write
in if you have any questions, etc. Gerry mentioned
that he may have been encouraged to do exactly that with this
situation dealing with Leona's driving habits.
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¶ 31
Later in the memorandum appears the following:
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I told Gerry that as
this was a serious breach of our code of ethics dealing with
access to information, he was suspended until further notice. I
mentioned to him that details of this situation were to be
discussed at the President's Committee level and decisions made
after the evidence was weighed and carefully considered.
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¶ 32
The memorandum also makes reference to Mr. Ringham's
speaking to Leona Stewart on the morning of July 17, 1992 at which time
she apparently admitted that she was driving a company vehicle on the
highway and morning in question. She is reported to have
stated while she may have been passing or moving in and out of
congestive traffic, she was not speeding or driving in a dangerous
manner.
¶ 33
In his memorandum dated August 17, 1992 to the President's
Committee, Mr. Thomas reports upon Mr. Ringham's investigation and
concludes with the following statement:
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This concludes the
investigation requested. Further discussions will be
held with Mr. Petit once all of the issues have been examined. Suffice
it to say that Mr. Petit's actions constitute a serious breach
of conduct and will be addressed with him once his employment
record has been reviewed.
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¶ 34
Mr. Ringham wanted to fire the plaintiff. His
superiors, including certain members of the President's Committee,
requested him to obtain more information and, particularly, to speak to
Mr. Fleming because of his involvement in the matter according to the
plaintiff. Mr. Fleming was on holiday in the Kelowna area. Mr.
Ringham was able to communicate with him by telephone on August 26,
1992. In a memorandum dated August 26, 1992, Mr. Ringham reports with
regard to his telephone conversation with Mr. Fleming. Towards the end
of that memorandum, the following is stated:
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If all this info from
Gord is accurate, then Gerry certainly lied or distorted the
truth about his discussions with Gord Fleming.
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¶ 35
Mr. Fleming was called as a witness on behalf of the
defendant at trial after Mr. Ringham had given evidence. While there are
some differences between Mr. Fleming's evidence as recorded in the
memorandum prepared by Mr. Ringham and his evidence at trial, including
cross-examination, I did not consider at the time I heard the evidence
of Mr. Fleming, that there were variations of significance. I
was not directed to evidence which would support a characterization of
Mr. Fleming's evidence such as to say that the plaintiff lied or
distorted the truth about his discussions with him. Counsel for the
defendant was not able to direct me to such evidence.
¶ 36
Mr. Ringham had a final interview with the plaintiff with
regard to the events in this matter held at the Newton Claims Centre on
Monday, August 31, 1992. During the course of that interview,
Mr. Ringham asked the plaintiff questions, a number of which related to
determination of the identity of Leona Stewart as the driver of the
I.C.B.C. vehicle on the highway. In the perspective of these
questions, he was asked:
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What was your real
motive or incentive in writing the anonymous letter about Leona?
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¶ 37 His
answer, in part:
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When I took the plate
number down I was upset, I didn't know what I was going to do
with it. I knew I had to do something. I
felt the driver, whoever it was, should be taken to task by
someone. I realized it was wrong when I wrote the
anonymous letter but I did not want to get into a verbal
argument with anyone over this. It had nothing to do
with Leona personally.
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¶ 38
In his handwritten notes made in preparation for his
interview with the plaintiff on August 31, 1992, Mr. Ringham has
included "Go over discussion with Gord Fleming."
¶ 39
Mr. Ringham did not "go over" the telephone
conversation he had with Mr. Fleming, nor make reference to the fact
that he had such a conversation with Mr. Fleming during the course of
the interview on August 31, 1992.
¶ 40
On September 2, 1992, Mr. Ringham informed the plaintiff by
telephone that the decision had been made to terminate his employment
with the Corporation for cause effective that date. A letter
dated September 2, 1992 was forwarded to the plaintiff.
FINDINGS OF FACT
¶ 41
Upon consideration of this evidence, I find the following
facts:
| (a) |
|
the plaintiff had no
ulterior motive in reporting the driving of Leona Stewart to
I.C.B.C. At the material time, he did not know Ms.
Stewart or have any reason to harm her. Further, there is no
evidence to indicate the reporting of the driving of Ms. Stewart
was for any purpose other than to make the defendant aware of
such driving and the driving record of Ms. Stewart;
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| (b) |
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at the time of the
accessing of the information from the computer, the plaintiff
had an honest belief that what he had done was appropriate with
the approval, tacit or otherwise, of his immediate superior, Mr.
Fleming. In this regard, I accept that part of Mr.
Fleming's evidence which I have quoted, supra, related to this
aspect of the matter. I find, therefore, that when
the plaintiff accessed the information from the computer, he did
not think that anything that he was doing was in breach of the
implied term of his contract of employment or in any way a
breach of the I.C.B.C. code of ethics;
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| (c) |
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on the late afternoon
of Friday, August 14, 1992 when the plaintiff was confronted by
Mr. Ringham at his office in the Claims Centre, I accept he was
surprised, scared and apprehensive;
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| (d) |
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following that meeting
the plaintiff did attempt to find Mr. Ringham in the Claims
Centre premises for the purpose of correcting his lies and
express his remorse for what had occurred; and,
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| (e) |
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the reason the
plaintiff did not attempt to telephone or otherwise communicate
with Mr. Ringham Friday evening was because he wished to meet
with him personally to deliver a letter hoping he would then be
given an opportunity to discuss the matter further with him.
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¶ 42
With regard to this last finding of fact, I am satisfied
upon consideration of the evidence bearing upon this question, the
plaintiff did not use the time interval to reflect upon what he had done
and to craft a letter to best serve his interests realizing that it
would eventually be determined he must be the person who accessed the
information and wrote the anonymous letter. In this regard,
if he had been able to find Mr. Ringham before he left the Claims Centre
premises shortly after the meeting, I am satisfied he would have then
told him what he later put in his letter.
THE LAW
¶ 43
There is no dispute as to the applicable law where
dishonesty is alleged as the cause for dismissal. In this
regard, as Hollinrake J.A. stated in McPhillips v. The British Columbia
Ferry Corporation (1994), 94 B.C.L.R. (2d) 1:
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Dishonesty is always
cause for dismissal because it is a breach of the condition of
faithful service. It is the employer's choice whether
to dismiss or forgive.
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¶ 44
Counsel differ, however, in their respective submissions as
to what evidence can properly be considered to determine what is
dishonesty or dishonest conduct. Put simply, counsel for the
defendant submits when the plaintiff lied to Mr. Ringham during the
meeting which occurred during the late afternoon of August 14, 1992, he
was guilty of dishonest conduct, the Rubicon was crossed, and that
nothing the plaintiff did thereafter or could have done would operate to
change the characterization of his conduct. He submits
whatever the plaintiff did subsequently, to explain his dishonest
conduct would only be relevant to I.C.B.C.'s decision whether to dismiss
or forgive.
¶ 45
In this regard, counsel for the defendant submits that if
the plaintiff had been able to find and communicate with Mr. Ringham at
the Claims Centre within minutes after the end of their meeting on
August 14, 1992, and had admitted his lies, such conduct on the
plaintiff's part would have made no difference in law to the defendant's
position.
¶ 46
Counsel for the plaintiff describes this approach as
"examining the plaintiff's conduct in a vacuum" and submits
that it ignores the direction of the courts such as, for example,
provided by the direction of the British Columbia Court of Appeal in
Jewitt v. Prism Resources (1980), 30 B.C.L.R. 43 at 54 where Taggart J.A.
said the following:
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It is for the trial
judge on the evidence before him, drawing such inferences as
that evidence warrants to determine whether there was cause for
the dismissal of the employee...There was little divergence in
their testimony on the principal matters in issue and,
consequently the judge was not faced with difficult questions of
credibility. He was, however, faced with the
difficult problem of assessing the character of the appellant
and the reasonableness of the actions of Mr. MacDonald on
learning that his signature had been traced. Here the trial
judge enjoys an advantage that this court does not for he saw
and heard those two men and it is on the basis of their
testimony and the inferences that may be drawn from it that the
central issue in this case must be decided.
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¶ 47
In the particular circumstances of this case, the court was
considering whether there were reasonable grounds for the defendant to
see a revelation of character which justified dismissal.
¶ 48
In keeping with the position of counsel for the defendant,
related to the scope of evidence to be considered when determining what
is dishonesty or dishonest conduct, I consider it useful to refer
briefly to the history of this action before trial.
¶ 49
On December 2, 1994, the defendant applied under Rule 18A to
dismiss the plaintiff's claim. At that time, counsel for the
defendant submitted there was just cause for the termination of the
plaintiff's employment based upon the lie or lies by the plaintiff to
his superior, Barry Ringham, at a meeting on August 14, 1992 because a
lie is a breach of the condition of faithful service and
"dishonesty is always cause for dismissal".
¶ 50
In oral reasons for judgment, Sigurdson J., after citing the
passage from Jewitt, supra, said:
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I have concluded after
much reflection that this case is not appropriate for
determination under Rule 18A because I have concluded that I am
unable to find on the evidence before me all of the facts that
are necessary to decide this application under Rule 18A.
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¶ 51 His
Lordship went on to comment that:
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... cross examination
and the ability to assess the demeanor of the key witnesses
would be necessary.
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¶ 52
The defendant, maintaining its position at law that the
admissions in the form of lies on the part of the plaintiff were in
themselves sufficient to support its application for a summary judgment
under Rule 18A, applied for leave to appeal to the British Columbia
Court of Appeal. The application for leave to appeal was
heard by Mr. Justice Legg on February 17, 1995. Mr. Justice
Legg delivered written reasons for judgment dated February 24, 1995 in
which he stated the following:
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The summary trial
judge's reasons show that he was concerned over specific facts
which he could not ascertain on the material before him and that
it was necessary to review the credibility of the key witnesses.
Further, because of the timing of the defendant's application
under Rule 18A, the trial judge did not have the opportunity
which was available to the trial judge in Inspiration Management
to hear cross-examination of the key witnesses on their
affidavits.
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...
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In my opinion, the
circumstances to which I have referred indicate that the
appellant's argument that the summary trial judge erred, does
not have sufficient merit to warrant the exercise of my
discretion to grant leave to appeal.
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¶ 53
In my view, the decisions of Sigurdson J. and Legg J.A. lend
some support to the submission of counsel for the plaintiff that the
issue requiring determination is not as narrow in scope as submitted by
counsel for the defendant. In this regard, what is
"dishonesty" or "dishonest conduct" or,
alternatively, "a revelation of character to justify
dismissal", are descriptive terms. I refer to the
judgment of Southin J.A. in Durand v. Quaker Oats (l990), 32 CCEL 63:
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The learned judge below
called what the respondent did deceptive, dishonest, and
bordering on insubordinate. Those terms are descriptive. They
do not come, in my opinion, to grips with the issue.
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¶ 54
I find the applicable law does not require me to consider
the plaintiff's conduct in isolation at a given point in time but rather
to consider whether the plaintiff's actions, taken in their entirety and
in context, constitute a fundamental breach of the contract of
employment.
¶ 55
Here it is common ground the plaintiff lied but he did not
maintain that lie. If such had been his course of conduct, it
is conceded by counsel for the plaintiff this action must fail. That
was not his course of action. I have accepted his evidence
that shortly after the meeting in question he attempted to find Mr.
Ringham at the Claims Centre to tell him the truth and, when he could
not do so, his intention remained to communicate with him at the
earliest reasonable opportunity to deliver a letter telling the truth
and with the expectation of further conversation with him taking place. There
was no reliance to its detriment by the defendant upon the falsehoods
before they were fully corrected.
¶ 56
It is trite to say the authorities to which I was referred
are dependent upon their particular facts and circumstances. In
McPhillips, supra, for example, the plaintiff was charged with theft
from his employer.
¶ 57
I make no attempt to explain or rationalize the conduct of
the plaintiff. In my view, the attempt at anonymity related
to the letter to the then President of I.C.B.C., Robyn Allan, was
ill-advised if not foolish on his part. I accept the
plaintiff's evidence that he had an honest belief he did nothing wrong
in accessing the main computer. Mr. Fleming's evidence is supportive of
this position. In this regard, I am not satisfied this
conduct on the part of the plaintiff constituted a serious breach of the
code of ethics of the defendant, either as alleged or at all.
¶ 58
More importantly, an employee lying to a supervisor is
always serious and may, depending upon the subsequent conduct of the
employee, constitute dishonesty or dishonest conduct warranting
termination of the contract of employment or some form of punishment
short of termination.
¶ 59
In keeping with the particular circumstances here and the
findings of fact which I have made, I consider the conduct of the
plaintiff on August 14, 1992, while initially having the appearance of
dishonesty, when more properly considered, is better characterized as a
serious mistake in judgment, which mistake he immediately realized was
the wrong thing to have done and which he tried to correct by telling
the truth at the first available opportunity. Insofar
as the character of the plaintiff can be gleaned from his conduct, in my
view it cannot be said the evidence here reveals any want of character.
¶ 60
For these reasons, I am not satisfied the plaintiff's
actions taken in the proper context constitute dishonesty or dishonest
conduct such as to constitute a fundamental breach of his contract of
employment with the defendant.
¶ 61
I answer the first question for determination by finding
that the defendant did not have just cause to terminate the employment
of the plaintiff.
DAMAGES
1. What are the
Damages to Which the Plaintiff is Entitled?
¶ 62 Counsel
for the plaintiff submits the circumstances here make it an exceptional
case and that consideration should be given to a notice period to age
60, taking the plaintiff to what was his planned retirement age, there
being an implied term of his employment with the defendant extending to
that time, subject to a deduction for the contingency of mitigation. Alternatively,
he submits a much more extensive notice period should be determined as
applicable, such as the 33 months awarded by Hood J. in Dedildal v. Tod
Mountain Development Ltd. (May 4, l995) Kamloops 999 (B.C.S.C.). Finally,
he submits there should be an award for aggravated damages.
¶ 63
Counsel for the defendant submits the appropriate notice
period is l6-l8 months to be reduced by two month's salary the plaintiff
received, in error, after his termination.
¶ 64
He submits there is no evidence to support a submission
there was an implied term of the contract of employment that the
plaintiff would have employment with the Corporation to age 60. He
submits as well there is no support for either a much more extended
notice period or aggravated damages in keeping with the approach taken
by Hood J. in Dedildal supra.
¶ 65
I do not consider it necessary to set out further the
submissions of counsel.
¶ 66
Upon consideration of the particular facts here, I accept
the submission that upon dismissal from his employment the plaintiff
would have minimal prospects of finding similar or any employment in the
monopolistic industry of automobile insurance. I do not find
it necessary, as counsel for the defendant submits, to have expert
evidence "as to the ability of the plaintiff to find comparable
employment". In my view, there is not by reason of the
monopoly of this industry enjoyed by the defendant in this province any
realistic prospect of such employment being available, particularly with
private insurance adjusters. Furthermore, as Hood J. commented in
Dedildal supra, where a groundless accusation of dishonesty is made it
is not a "clean firing."
¶ 67
In this perspective, of the factors to be considered, I find
particular emphasis must be placed upon "the availability of
similar employment" (see Ansari v. British Columbia Hydro &
Power Authority, (1986) 2 B.C.L.R. (2d) 33, aff'd. [1986] B.C.J. No.
3006, 55 B.C.L.R. (2d) xxxiii).
¶ 68
I reject the submission of counsel for the plaintiff. There
should be an implied term to the contract of employment that the
plaintiff would have employment with the defendant to age 60. While
such may have been the mutual expectation of the parties it would have
been the right of the defendant at all times to terminate an employee
such as the plaintiff for cause or upon the payment of reasonable
notice.
¶ 69
I reject as well the submission of counsel for the plaintiff
there should be a more extensive notice period such as the 33 months
awarded by Hood J. in Dedildal supra, or a combination of a more
conventional notice period within an award of aggravated damages. I
find Dedildal supra to be distinguishable on its facts from this case. In
Dedildal Hood J. found the allegations in the pleadings to be
"spurious, vexatious and malicious" noting that the
counterclaim of the plaintiff was abandoned on the morning of trial. The
action proceeded on the basis of the alleged dishonesty of the plaintiff
with an unfounded allegation that he had misappropriated $750,000. There
were also allegations at trial of the alleged incompetency of the
plaintiff.
¶ 70
For these reasons I conclude what is reasonable notice here,
emphasizing the availability of similar employment factor in Ansari, is
24 months, the rough upper limit for such notice.
¶ 71
I was informed the calculation of pension loss is to be left
for determination by counsel.
¶ 72
The plaintiff has entitlement to costs. Counsel
for the plaintiff may wish to address this question by way of a formal
submission. With the advent of long vacation counsel may wish
to address this question by way of submissions in writing.
HARVEY J.
