Rowbotham v. Addison et al.

2000 BCSC 0218 Citation: Rowbotham v. Addison et al. 2000 BCSC 0218 Date: 20000207 Docket No.: S1034 Registry: Powell River IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: FLORENCE ROWBOTHAM PLAINTIFF AND: DR. C.A. ADDISON, DR. W.H. BARKLEY, DR. C.N. BONSOR, DR. R.J. BROWETT, DR. S.R. BURNS, DR. B.K. CUTLER, DR. H.L. DOUGAN, DR. G.P. HUMAN, DR. J.W. LYNSKY, DR. B.M. MCDONALD, DR. F. MURPHY, AND DR. D.R. TOOLE, DOING BUSINESS AS THE MEDICAL CLINIC ASSOCIATION DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE J.T. EDWARDS Counsel for the Plaintiff: Ian Fleming Counsel for the Defendants: Michael R. Giroday Dates and Place of Hearing: January 26, 27 and 28, 2000 Powell River, BC [1] The plaintiff was an accounts receivable clerk at the Medical Clinic Associates in Powell River where she had been employed for about 18 years. BACKGROUND [2] The circumstances of this case are partially set out in an investigation report of the B.C. Human Rights Commission dated January 22, 1999. That report included the following background: The Complainant was born on December 28, 1937. She began working for the Respondent as an Accounts Receivable Clerk in August 1979. The Respondent operates a medical clinic in Powell River, B.C. On or about May 1997, the Complainant went on sick leave because a medical condition in her right hand, carpal tunnel syndrome, made it too painful for her to perform her job. The Complainant's physician considered that the "carpal tunnel syndrome arose directly out of Mrs. Rowbotham's work environment. The repetitive nature of her job (typing and filing) was a continued stress to the elbow.." The Complainant underwent surgery on September 29, 1997 to alleviate or correct the condition. On December 20, 1997, the Complainant met with Mr. John Rae, the Respondent's Manager, and presented him with a note from her doctor, Dr. Jeff Lynskey, confirming that beginning on January 5, 1998, she was able to return to her job, with some restrictions. Dr. Lynskey's note specified that the Complainant was to be restricted to typing twice daily for 20 minutes at a time and with light lifting only, for a duration of three to four hours daily, three times a week. The Complainant did not return to her employment with the Respondent, and subsequently has filed a law suit for wrongful dismissal against the Respondent. [3] That report was a result of a complaint filed by the plaintiff on October 5, 1998 alleging that John Rae, the business manager of the defendants, had discriminated against her because of her age and because of her physical size. At the time the plaintiff tried to return to work she was 60 years old, was 5'4", and weighed over 190 pounds. [4] On December 18, 1997, she attempted to return to work and was told by Mr. Rae that her old job was gone as a result of a reorganization. She was offered an alternative sorting old files and records in the basement of the clinic building. The offer was at the same rate of pay and with the same benefits as she enjoyed prior to the sick leave. However she had the feeling she was being dismissed when she declined the basement offer. [5] Her family doctor who, incidentally, is an associate at the clinic, gave her a note on December 18, 1997, that she was allowed to return to work with restricted typing and light lifting. The note indicated that she could start work on January 5, 1998 for 3 or 4 hours, 3 times a week. At this time she had taken medical leave from May 5, 1997 to December 31, 1997. [6] Prior to her attempted return to the clinic there had been no complaints about her work and she got along well with the doctors and staff at the clinic. [7] The clinic did not have any policy manual concerning lengthy periods of medical leave. The plaintiff suffered from carpal tunnel syndrome which required surgery at the end of December 1997. Following surgery her pain and symptoms were greatly relieved. Apart from medication she carried out a program of exercise and attended a physiotherapist on several occasions. [8] The plaintiff made application for WCB benefits and the clinic agreed to advance the amount of eligible WCB benefits until her entitlement was established. The arrangement was that she would then pay back the clinic for the advances. The plaintiff was following a WCB order of benefits and a successful appeal paid WCB benefits from May 5, 1997 to January 5, 1998. [9] The plaintiff's evidence was that when she met with Mr. Rae on December 18, 1997 and gave him the doctor's note. Mr. Rae told her, in words to the effect, "you don't have a job here. You can work in the basement". The basement is an underground dingy and confined area with few windows. There was only a small stool to sit on. [10] The plaintiff told Mr. Rae that the offer of basement work was like saying to her words like "Get out. - there's the door" and Mr. Rae answered "exactly". Mr. Rae denied these conversations. [11] The plaintiff met with Dr. McDonald and Mr. Rae on December 23 and told them the minimum severance was eight weeks and that she was entitled to a letter of dismissal. She did not get a letter of dismissal, however, she was paid eight weeks in lieu of notice plus 12% holiday pay on that amount. For a total was $4,650.24. The clinic deducted their advance of $3,847.52 and set that amount off against the entitlement of eight weeks. The balance was then paid to the plaintiff. [12] The plaintiff testified that Mr. Rae told her words to the effect that "Your work would be confined to the basement so you will be out of sight". The plaintiff also testified Mr. Rae had said to her "you don't have a job, Barbara has the job". She found these words insulting and demeaning and was totally depressed. [13] The result of having no income caused the plaintiff to drastically alter her retirement plans. [14] The plaintiff knew that the clinic hired part-time staff. And if she had been offered a clerical position she would have taken it. [15] Her earnings prior to termination were $30.84 per hour; approximately $2,100 per month; plus holiday pay of six weeks a year; two weeks special leave every five years; a Christmas bonus of $125 each year, and a benefit package. [16] The plaintiff's prospects for employment in the Powell River area are dim. She had on two occasions taken extended medical leave of two months on each occasion. After each leave she returned to her old job without problem. [17] Prior to commencement of the medical leave the plaintiff was undergoing treatment and working at a reduced time schedule. She was training Colleen McLeod first and then Lois Vanderant to carry out her job. [18] The plaintiff, every two weeks or so, visited with the staff of the clinic and dropped into Mr. Rae's office to keep him posted on her medical condition and her intention to return to her old job. On none of those occasions did Mr. Rae tell her that her old job had gone and therefore she could not return to that job. [19] On December 18, 1997 the plaintiff gave Mr. Rae Dr. Lynskey's note that opined that she could return to work and told him that she was ready to return to work on January 5, 1998. He indicated that if she returned she would have to take the offer to work in the basement. [20] A meeting was called for December 23, 1997 which was held in Dr. McDonald's office. Dr. McDonald was the chairman of the management committee of the clinic. Mr. Rae and Dr. McDonald were present with the plaintiff. The plaintiff says that the word "layoff" was not used at that meeting. She informed Dr. McDonald and Mr. Rae that she was entitled to eight weeks severance pay and a letter of dismissal. It was clear by the end of the meeting that she would not accept the "basement job". Mr. Rae was to prepare a dismissal letter and mail it to the plaintiff or she was to pick it up at the clinic. The dismissal letter was never mailed to her nor did she pick it up at the clinic even though it was prepared and signed. [21] In the following months some attempts to meet and discuss a resolution to the problem were made by Mr. Rae but they were not responded to. [22] In early April 1998 the plaintiff received a record of employment form. On this form a code notation was endorsed saying that the plaintiff had been dismissed. [23] Mr. Rae prepared a release to limit the exposure of the clinic. However, there was no discussion about a release and it was never signed by the plaintiff. [24] Mr. Rowbotham testified that when the plaintiff came home on December 18th she was upset, depressed and crying. She told him she had been fired. [25] Dr. McDonald testified that he did not think she was capable of returning to work. He thought that because of the limitations of her health she would be unlikely to ever return to full time work. [26] Dr. McDonald thought that following the December 23rd meeting there was agreement that if the dismissal letter was approved by the plaintiff, the clinic would give her a record of employment that would entitle her to employment insurance. The clinic agreed to eight weeks' pay and Mr. Rae was to prepare the paperwork. [27] Dr. McDonald testified that the clinic never dismissed the plaintiff from her employment. He believed that what was happening was a lay off which he interpreted to be different from a dismissal. He believed she could not do the old job because of her medical restrictions. He did not believe she would improve medically nor did he believe she would come back from a lay off. [28] There had been no complaints about the plaintiff's performance in her work prior to going on sick leave. [29] Mr. Rae gave evidence. He stated that the plaintiff had two prior medical leaves of approximately two months each when she returned she resumed her old job and there was no problem on those occasions during these leaves. She was paid as if she was there full time. [30] Dr. McDonald testified that the clinic could have made room for the plaintiff on the main floor rather than the basement, however, this was never offered to her. [31] The plaintiff's testified that until the meeting of December 23rd she thought that there was a start-up date of January 5, 1998. After the December 23, 1997 meeting she would get eight weeks severance and a record of employment. [32] Mr. Rae thought that there was only four to six months' full time work to complete the reorganization of the basement files. THEORY OF THE PLAINTIFF [33] The plaintiff characterizes the events of December 18th and December 23, 1997 as a constructive dismissal primarily on the basis that the "basement offer" was not a bona fide offer of alternative work. It was expected to be of a relatively short duration (four to six months) and even though it would carry the same rate of pay and the same benefits it was demeaning and insulting to the plaintiff. It was clearly a demotion made worse by testimony at the trial that the work that was expected of the plaintiff need not have been carried out in the basement. The evidence was that the work could be carried out on the main floor with an arrangement that the files could be brought to her obviating the need for the plaintiff to go back and forth to the basement. Unfortunately this alternative was not offered to Mrs. Rowbotham. THEORY OF THE DEFENCE [34] The defendants considered the offer of "basement work" as a suitable alternative work and upon its rejection the defendants thought they had fulfilled all of their legal obligations to the plaintiff. The conclusions drawn by Mr. M Rae were that when the plaintiff turned down the "basement job" she had effectively quit her job and the defendants owed no further duty to her. [35] Dr. MacDonald was of the view that the plaintiff would never be able to do the work that she formerly did. The repetitive nature of the work contributed to her disability and could be expected to exacerbate her disability notwithstanding the optimistic view of Dr. Lynsky. HUMAN RIGHTS COMMISSION [36] The plaintiff filed a complaint with the British Columbia Human Rights Commission (HRC). HRC conducted a thorough investigation and came to the conclusion that: Although the complainant found the alternative to be unacceptable to her because she did not want to work in the basement, the respondent met its legal duty to reasonably accommodate the complainant. [37] Although the statutory duties under the Human Rights Act may have been satisfied with the alternative work offered, it does not follow, in my view, that the plaintiff was estopped from pursuing the rights at common law to reasonable notice of dismissal. [38] During the course of the trial it became apparent that the defendants were arguing a neat legal distinctions between the use of the word "dismissal", "layoff", "termination" and "fired". The distinctions are not appealing to me. The result of the December 23rd meeting was that the defendants would pay the plaintiff an amount equivalent to eight weeks' notice, provide the plaintiff with a dismissal letter and a record of employment form that would allow her to obtain employment insurance benefits. The fulfilment of that plan never occurred as the defendants prepared a release for the plaintiff to sign and arranged for her to come to the defendants' office to pick up the dismissal letter and a record of employment form. This release was said by Mr. Rae to be "normal business practice". The release was not a document that was discussed in the meeting of December 23rd or at any other time. [39] The defendants tried to characterize the termination of the plaintiff's employment as a "layoff" but when cross-examined the defendants' witnesses were unable to say how long the layoff would be and what would be the entitlement of the plaintiff to priority of recall or of pay and benefits at the end of the layoff. [40] The defendants did not intend a layoff of indefinite duration. The words "lay off" were not used during the December 23rd meeting. [41] In my view, when Mr. Rae told the plaintiff that she no longer had her former job and offered her the alternative of "basement work", which she did not accept, she was at that particular time constructively dismissed. LAW [42] The defendants quoted and I endorse the following passages from Harris on Wrongful Dismissal at Chapter 3, p. 3-18.1 where it is said: A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee. Such action amounts to a repudiation of the contract of employment by the employer whether or not he intended to continue the employment relationship. Therefore, the employee can treat the contract as wrongfully terminated and resign which, in turn, gives rise to an obligation on the employer's part to provide damage in lieu of reasonable notice. Following a constructive dismissal, an employee does not have a duty to inform the employer of its breach of the employment contract prior to accepting that breach as a repudiation of the contract. In order for the employee to treat the contract as at an end, there must be a "repudiation by [the employer] of the essential obligations imposed on him by the contract". Repudiation in this context is governed by the basic rules of contract. ... if the change effected is minor, or if the change reflects a proper interpretation of an existing provision of the employment contract, the employee may not consider such a change to be an act of repudiation. However, if a particularly important term is unilaterally altered, the employee may have his or her remedy. An employee who alleges constructive dismissal from employment resulting from a breach of an essential term of the employment contract has the onus of proving that breach on a balance of probabilities (Cadenhead v. Unicorn Abrasives of Canada Ltd. (1985), 5 C.C.E.L. 241 (Ont. H.C.), per Cromarty J.). The test is an objective one and was stated as follows by Gushe J.A. of the Newfoundland Supreme Court, Appeal Division, in Winsor v. Canada Trust Co. (1993), 49 C.C.E.L. 235, 110 Nfld. & P.E.I.R. 341, 346 A.P.R. 341: The term "constructive dismissal" has been defined by the courts as being a change in an employee's job responsibilities and/or benefits so significant that, viewed objectively, the employer would be deemed to have radically altered the nature of the employee's service contract. A term may be "particularly important" without necessarily amounting to a "fundamental" term of a contract. Conversely, a term of a contract may be "fundamental" without seemingly being of "particular importance." [43] When considering the conduct of the employer one factor that is to be considered is whether the employer acted in good faith. Henderson v. Westfair Foods Ltd. (1990), 32 C.C.E.L. 152. [44] In the case of Podas v. Pacific Press Ltd. (1991), 61 B.C.L.R. (2d) 196, the plaintiff had started working for the defendant newspaper in 1962. His last promotion was to the position of litho manager in 1968. In 1987 the defendant began a reorganization resulting in the plaintiff having fewer employees to supervise, amongst other changes in his responsibilities. He wrote to the defendant saying he believed he had been constructively dismissed. The defendant replied with a letter of denial telling the plaintiff that he was still an employee. The plaintiff sued and the defendant again wrote, taking the position that the plaintiff had resigned. The trial judge dismissed the action finding that the plaintiff had lost no salary or benefits and had suffered no humiliation and that the changes to his position were not so significant as to constitute constructive dismissal. An appeal was dismissed. [45] In Simmons v. United Gear & Machine Works Ltd., [1993] B.C.J. No. 630, Vancouver C917454, Mackoff J. outlines circumstances similar to those in the case at bar where Simmons brought an action for damages for wrongful dismissal in the following circumstances. On August 23, 1991 at about 3:30-4:00 p.m. Mr. Thomas Watson ("Watson") the manager of the defendant company, came to the lathe where the plaintiff was working and said, "Mike, do you want it at 4:30 or do you want it now?" Simmons did not know what he meant and said "Why not now?" Watson said, "You're finished." When asked what he meant, Watson replied, "You're through - you're finished", and walked away. The plaintiff understood that he had been "fired". He discussed his having been "fired" with some of the other employees who worked nearby and someone suggested that he should ask for a written statement as to why he had been "fired". He went to the office and asked Watson for such a written statement and was told, "No - you're not fired - you're laid off." LENGTH OF NOTICE [46] The question of what constitutes reasonable notice was considered in Ansari et al. V. British Columbia Hydro & Power Authority (1986), 2 B.C.L.R. (2d) 33 which sets out the general principles to be considered. McEachern C.J.S.C. (as he then was) adopted the passage from Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.) as setting out the most important factors to consider: 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 qualification of the servant. MITIGTION [47] An issue is raised as to whether or not there had been proper mitigation in this case. The onus is on the defendants to establish that the plaintiff has failed to mitigate the loss. In this case my view is that the plaintiff has discharged the onus to mitigate her loss. After her termination she began searching at the manpower office in Powell River every couple of weeks to see if there was anything available for her in her position as accounts receivable clerk. There were no positions in Powell River and Mrs. Rowbatham was not prepared to accept a position outside Powell River because of the closeness of her family, her friends and her familiarity with the Powell River area. [48] She said that she passed the word with other doctors' offices although she had not personally visited those offices. She expected that people who were aware of her seeking work as an accounts receivable clerk would know of her availability. [49] I find the issue of mitigation to be resolved satisfactorily in favour of the plaintiff and to establish that the plaintiff did all that was reasonable in the circumstances and particularly in the circumstances that where she was looking was in Powell River for an accounts receivable position. FRUSTRATION OF EMPLOYMENT CONTRACT [50] In the case of Yeager v. R.J. Hastings Agencies Ltd., [1985] 1 W.W.R. 218, (B.C.S.C.), a case similar in nature because of an illness interrupting employment, the headnote in part says: To succeed on the defence of cause to justify the summary dismissal the defendant had to demonstrate that the plaintiff's misconduct was wilful. An incapacity to perform work properly due to illness did not justify a summary dismissal. [51] In Antonacci v. Great Atlantic & pacific Co. of Canada, [1998] O.J. o. 876, Court File No. 95-CQ-63767 (Ont. Court of Justice) Mr. Justice Swinton said at para 37: The doctrine of frustration applies when a contract becomes incapable of performance because, in the circumstances, performance would be radically different from that contemplated by the parties at the time they made the contract. Many cases have emphasized that the frustrating event must be beyond the contemplation of the parties. With respect to employee illness or incapacity, modern courts have not treated illness per se as a frustrating event; rather, they have looked at the length of the illness in relation to both the term and duration of the employment contract. [52] The case at bar is not one where the contract of employment was frustrated. The plaintiff had, in the past, taken at least two lengthy disability leaves, each of approximately two months, and although nothing was expressed in a policy or in a written employment contract, at the end of each occasion the plaintiff returned to her job without any difficulty and was paid for the period of her illness. It cannot be said that the doctrine of frustration is applicable to the facts in the case at bar. [53] Another case of sickness leave is Skopitz v. Intercorp Excelle Foods Inc., [1999] O.J. No. 1543 (Ont. File No. 97-CU-120917, Ont. Ct. Justice) where Sachs J. said at para. 5. While Ms. Skopitz was on sick leave she kept the Defendant advised of her progress. [54] This is similar to the case at bar where Mrs. Rowbotham popped into the office from time to time in order to keep Mr. Rae attuned to her progress and her intentions. Her intentions were clear that when she was able to, she would return part-time and then, as she was able to, would extend her period of employment to full-time. Throughout the course of this illness neither Mr. Rae nor anyone else at the clinic suggested to her that her job would not be there for her when she returned from her sick leave. [55] Sachs J., referring to the Ontario Human Rights Code, R.S.O. 1990 cH. 19 (the "Code") said: The duty imposed by Section 5(1) of the Code is a duty to accommodate. The question in this case is whether or not that duty imposed an obligation on the Defendant to take Ms. Skopitz back after a 15 month absence and to allow her to start slowly and work her way into a resumption of her previous duties. [56] This is similar to the case at bar in that no one informed Mrs. Rowbotham that she may not have her old job when she returned. [57] With respect to bad faith: Ms. Skopitz's termination occurred when she was at a particularly vulnerable point in her life - seeking to return to work after a fairly lengthy period of disability. Firing someone who is on disability is one of the examples of bad faith or unfair dealing in the manner of dismissal cited by the majority in Wallace v. United Grain Growers, [1997] 3 S.C.R. 701. That case also stands for the proposition that bad faith conduct in the manner of dismissal is a factor which is properly compensated for by an addition to the notice period. [58] In the case at bar the defendants did not in a calculated manner increase the distress on Mrs. Rowbotham. Nevertheless the defendants did act in a way that was indifferent to the vulnerability of her position. This, in my view, was not the fair dealing that a long-term employee like Mrs. Rowbotham was entitled to expect from her employer. I therefore would, because of this unfair dealing, increase the notice period which Mrs. Rowbotham is entitled to from three to five months. COUNTERCLAIM [59] The defendants' counterclaim is for monies advanced from the defendant to the plaintiff in the amount of $3,847.52. The amount was paid by the deduction from Mrs. Rowbotham's salary account at the time the eight weeks' salary was paid. The counterclaim is dismissed. CONCLUSION [60] I conclude that Mrs. Rowbotham was constructively dismissed on December 18, 1997 and that she is entitled to damages equivalent to three months. Because of the insensitive and insulting method of termination, I would add one month on the period of notice with the result that Mrs. Rowbotham is entitled to four months at her last rate of pay and benefits in cash equivalent to four months. [61] The plaintiff will be entitled to costs on scale 3. I have considered special costs but have decided that the manner of Mrs. Rowbotham's termination is taken care of by the increase in notice period from three months to four months. There should be no costs on the counterclaim. "J. T. Edwards, J."