McGill v. Berry and Smith Trucking Ltd.

2026 BCSC 713 McGill v. Berry and Smith Trucking Ltd.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: McGill v. Berry and Smith Trucking Ltd., 2026 BCSC 713 Date: 20260303 Docket: S64403 Registry: Kamloops Between: Stacey Anne McGill Plaintiff And Berry and Smith Trucking Ltd. Defendant Before: The Honourable Justice Jones Oral Reasons for Judgment at Summary Trial Application In Chambers Counsel for the Plaintiff: T.A. Maas Counsel for the Defendant: J. Ruttle Place and Date of Hearing: Kamloops, B.C. February 24, 2026 Place and Date of Judgment: Kamloops, B.C. March 3, 2026 Table of contents Introduction.. 3 Background.. 3 The June 7, 2024 Event 5 The December 24, 2024 Event 5 The May 26, 2025 Event 6 Termination. 9 The Bus Incident - May 12, 2025. 10 Issues. 11 Issue #1: Is the matter suitable for a summary trial?. 12 The Parties' Positions. 12 Defendant's position. 12 Plaintiff's position. 12 Legal framework - Summary Trial 13 Analysis - Summary Trial 16 (a) The amount involved. 16 (b) The complexity of the matter 17 (c) Urgency. 17 (d) Any prejudice likely to arise by reason of delay. 17 (e) The cost of taking the case forward to a conventional trial in relation to the amount involved. 18 (f) The course of the proceedings. 18 (g) Any other matter which arises for consideration on this important question. 19 Issue #2: Was the defendant entitled to terminate the plaintiff's employment without cause?. 23 Issue #3: Did the

defendant repudiate the Employment Agreement by paying her after termination three days after the mandated 48 hours in the ESA, s. 18?. 26 Issue #4: Did the defendant repudiate the Employment Agreement for failing to take action to protect the plaintiff against the alleged bullying by one or more other employees?. 30 Issue #5: If the plaintiff was wrongfully terminated, is the plaintiff entitled to aggravated damages?. 31 Conclusion.. 33 Introduction [1] These are my oral reasons on the defendant's application for a summary trial to dismiss the plaintiff's action for wrongful dismissal from her employment with the defendant, and her allegation that the defendant repudiated the employment agreement between the plaintiff and the defendant. [2] The transcript of these reasons has been edited for clarity and to correct errors, but the substance has not changed. Background [3] The defendant, Berry and Smith Trucking Ltd. ("BST"), is a transportation company based in Penticton, British Columbia. The company provides a variety of truck transport services across North America, and school busing, and, through an associated company, transit busing services. [4] The plaintiff, Stacey Anne McGill, commenced her employment with BST on December 26, 2022, pursuant to a written employment agreement (the "Employment Agreement") she signed on December 22, 2022. [5] Ms. McGill trained at the

company's office in Delta for two weeks, following which she worked as a Customer Service Specialist in the company's Penticton office. [6] The defendant terminated Ms. McGill's employment with BST without cause by a termination letter dated May 28, 2025. [7] The length of her employment with BST was two years and four months. [8] The Employment Agreement included a without-cause termination clause, as follows: 35. Berry & Smith may terminate your employment without Cause and without further obligation, by providing you with notice or regular wages in lieu of notice, as follows: a. after three (3) months of continuous employment, two (2) weeks' notice or regular wages in lieu of such notice; or b. after one (1) year of continuous employment, three (3) weeks' notice or regular wages in lieu of such notice; or c. after three (3) years of consecutive employment, three (3) weeks' notice plus and [sic] additional one (1) weeks' notice for each additional completed year of employment, to a maximum of twenty-six (26) weeks' notice or regular wages in lieu of such notice. [Emphasis added.] [9] Paragraphs. 41 and 43 of the Employment Agreement provided that it was to be governed by the laws of British Columbia, and that the plaintiff had been afforded the opportunity to read the document and seek independent legal advice prior to signing it. [10] The Employment Agreement in para. 24

provides for the plaintiff to agree to company policies, including a code of conduct requiring employees to be considerate and respectful to others. [11] The plaintiff alleges that the defendant repudiated the Employment Agreement in two ways: (1) by failing to protect her from workplace bullying; and (2) by paying her wages in lieu of notice three days after the 48 hours required by s. 18(1) of the Employment Standards Act, R.S.B.C. 1996, c. 113 [ESA]. [12] There are three discrete workplace events, or incidents, that provide background to the plaintiff's allegation that the defendant repudiated the Employment Agreement by failing to protect her from workplace bullying. [13] A fourth event, the "Bus Incident", is also of some relevance relating to the plaintiff's employment with the defendant. [14] Since BST terminated the plaintiff's employment without cause, the details of these events are primarily related to the plaintiff's allegation that the defendant failed to protect her from workplace bullying, and her claim for aggravated damages. These events are summarized as follows. The June 7, 2024 Event [15] On June 7, 2024, from the employer's perspective, the plaintiff lost her temper and yelled at a BST employee, Gary Gibbons. [16] Mr. Gibbons' affidavit states that the plaintiff on that day lost her temper and yelled at the top of her lungs at him after he, as the senior

dispatcher on staff that day, asked the plaintiff to ensure they were following up with important dispatch details. [17] The same day, BST's President, Parker Berry, spoke with the plaintiff and verbally warned her that she needed to manage her anger. That same day, he also wrote a contemporaneous statement summarizing the meeting he had with the plaintiff. [18] Mr. Berry's affidavit describes him having overheard the exchange between the plaintiff and Mr. Gibbons because his office is directly beside the dispatch area. He heard the plaintiff yell at Mr. Gibbons for multiple minutes. [19] The plaintiff's evidence in her affidavit does not mention the June 7, 2024, event. The December 24, 2024 Event [20] The Vice-President of BST, Kaolin Mallette, made an affidavit which includes his description of having overheard, on December 24, 2024, the plaintiff shouting disrespectful remarks to three members of the dispatch team, including Bonnie Tosczak. [21] On January 2, 2025, Mr. Mallette met with the plaintiff to discuss the incident, warning her to manage her anger at work. [22] Mr. Mallette informed Mr. Berry about the incident. [23] Mr. Berry wrote a summary of what he was told by Mr. Mallette. Mr. Mallette confirms that Mr. Berry's summary accurately describes his recollection of the incident, including Mr. Mallette communicating to the plaintiff that yelling at the dispatch team

is not a professional communication, it was not acceptable workplace communications, she should speak with a manager or work to diplomatically resolve a situation before losing her temper, and her outbursts were damaging to the team environment. [24] The plaintiff's affidavit evidence about the December 24, 2024 event describes another employee, Bonnie Tosczak, confronting her about bothering people. The plaintiff describes leaving in tears. She then returned quickly to retrieve her keys and at that time she believed that members of the team were gossiping about her. [25] The plaintiff's affidavit does not say anything about Mr. Mallette discussing the event with her, and him giving her a verbal warning on January 2, 2025. The May 26, 2025 Event [26] Ms. Tosczak's affidavit describes an event on May 26, 2025, when the plaintiff lost her temper, yelled profanities, and was disrespectful and disparaging toward her. Three days later, Ms. Tosczak prepared a detailed written summary of what occurred with the plaintiff that day. [27] Ms. Tosczak's affidavit states that during the time she had worked with the plaintiff, for nearly two and a half years, the plaintiff had made disrespectful comments numerous times to Ms. Tosczak regarding alleged poor work performance and lack of commitment to the company. [28] That same day, May 26, Mr. Mallette and Mr. Berry went to BST's head office

in Penticton and spoke individually and separately with all four BST employees, other than the plaintiff, who were present when the incident between Ms. Tosczak and the plaintiff occurred. They also met with the plaintiff in the afternoon to hear her account of what happened. [29] The next day, May 27, 2025, the plaintiff took a mental health day. [30] Mr. Mallette wrote a statement about the investigation of the May 26 incident. [31] Mr. Gibbons and Ms. Tosczak also each wrote a statement that day regarding the incident. [32] Mr. Gibbons attached his statement to his affidavit. Mr. Gibbons' affidavit summarizes the incident as the plaintiff having lost her temper, yelled profanities, and was disrespectful and verbally abusive towards Ms. Tosczak in front of other employees, including Mr. Gibbons. [33] Ms. Tosczak attached her statement to her affidavit. Ms. Tosczak's affidavit summarizes her statement by describing the plaintiff as having lost her temper, yelled profanities, and was disrespectful and disparaging to Ms. Tosczak. [34] The plaintiff's evidence in her affidavit is that Ms. Tosczak, from at or about the end of 2024, to about May 20, 2025, was being disrespectful to her, and talking down to and about her. [35] The plaintiff's affidavit states that "on or about May 25, 2025", she became frustrated by these interactions, and she admits she told Ms. Tosczak to "fuck

off", following which Ms. Tosczak began to cry and left the premises. [36] The plaintiff's affidavit gives other examples of what she describes as instances of Ms. Tosczak causing her stress, including on-call work and Ms. Tosczak's aggressive response to suggestions she had made, and making disparaging remarks to others about her work. [37] Ms. Tosczak's affidavit in response to the plaintiff's affidavit denies that she began a campaign against the plaintiff, denies making disparaging comments about her, and denies that she made the specific quotes attributed to her by the plaintiff. [38] The plaintiff's affidavit also states that after the incident that occurred "on or about May 25, 2025," she was called into a meeting. She admitted she regretted swearing at Ms. Tosczak, but in response to being told that she needed to report to management if Ms. Tosczak was mistreating her, she responded by reminding the management at the meeting that she had recently brought the mistreatment of her to their attention without any responsive action from them, and that she had been left out to dry. [39] The meeting referred to by the plaintiff appears to have occurred on May 26, 2025, when Mr. Berry and Mr. Mallette state they met with the plaintiff. They both wrote contemporaneous statements describing their meeting with the plaintiff. [40] Mr. Berry and Mr. Mallette's affidavits, and their

written statements of their interviews of other employees, provide evidence that the staff present at the time of the May 26 incident were consistent that Ms. Tosczak had calmly and levelly communicated to the plaintiff about the handling of a cross-border customs clearance that the plaintiff had handled late in the day the previous Friday before the weekend, following which Ms. Tosczak indicated to the plaintiff how the shipment should have been handled. [41] This was followed by the plaintiff losing her temper and telling Ms. Tosczak, "fuck you", then berating Ms. Tosczak about her negative job performance, about how Ms. Tosczak was bullying her, and the plaintiff could not deal with her anymore. Ms. Tosczak said, "I quit," and began to pack her things and prepared to leave, during which time the plaintiff continued her negative disrespectful personal comments to Ms. Tosczak as she left. Ms. Tosczak did not respond. [42] Mr. Mallette's statement about the May 26, 2025 meeting with the plaintiff specifically refers to the plaintiff's allegation of her prior reports of bullying, stating that in the previous meetings with the plaintiff, she had not communicated abusive behaviour by other staff members against her. [43] At the meeting, when the plaintiff was asked about her allegations of bullying, she referred to the plaintiff's report of Ms. Tosczak "sighing". [44] Mr. Berry's

statement refers to the plaintiff reporting that Ms. Tosczak had "huffed and sighed", which the plaintiff took as being directed at her. [45] Both Mr. Mallette and Mr. Berry's statements about the meeting with the plaintiff, refer to the plaintiff's bullying allegation as being the first time any comment of bullying had been made about Ms. Tosczak, and it surprised them. [46] Mr. Mallette's statement about the May 26 meeting refers to the plaintiff's aggressive response to others who slighted her, or did not agree with her, the company having a number of documented instances of the plaintiff aggressively responding to others. Termination [47] Mr. Berry and Mr. Mallette met with the plaintiff on May 28, 2025. They advised her that BST was terminating her employment effective immediately, and she would be paid three weeks' pay in lieu of notice. [48] She was given a termination letter dated May 28, 2025, explaining she was terminated immediately. The letter referred to her unacceptable behaviour relating to attacks on other team members and a history of similar incidents. The letter stated she would get paid the minimum severance pay "as per the BC Government"; however, the defendant's position is she was terminated without cause and was paid three weeks' pay in lieu of notice, pursuant to the terms of the Employment Agreement, which exceeded the minimum severance pay in the

ESA. [49] Following her termination, the plaintiff filed a notice of civil claim on June 27, 2025, claiming wrongful termination, general damages, and aggravated damages for the alleged insensitive manner of dismissal and adverse health consequences she suffered. [50] On August 22, 2025, the plaintiff amended her notice of civil claim to allege that the defendant terminated her in retaliation to her making a complaint that a bus driver employed by BST had allegedly inappropriately touched her daughter on a school bus on May 12, 2025 - the Bus Incident. [51] On this application, the plaintiff seeks to amend her amended notice of civil claim to plead a new allegation that the defendant repudiated the Employment Agreement by failing to protect her from bullying, and paying her three days later than the 48 hours prescribed in the ESA following termination. The Bus Incident - May 12, 2025 [52] The fourth incident was not referenced in the plaintiff's claim until she amended her notice of civil claim on August 22, 2025, where she alleges that her termination was retaliatory for her "taking issue with" what is referred to as the "Bus Incident" involving a school bus operated by BST. [53] The Bus Incident occurred on May 12, 2025, approximately two weeks before the date of the plaintiff's termination, when the plaintiff was contacted by her daughter's school, reporting to her about a

school bus driver allegedly inappropriately touching the plaintiff's daughter. [54] The plaintiff's affidavit evidence states that the school reported the incident to BST. The plaintiff visited the BST office and met with Mr. Mallette to express her serious concerns. She states she also wrote a letter of complaint to BST and suggested some training for the drivers. [55] She concludes that "[g]iven the proximity of the termination following the Bus Incident, it is my position that my termination was retaliatory for my taking issue with the Bus Incident." [56] By contrast, Mr. Mallette's affidavit states that the Bus Incident was entirely unrelated to BST's decision to terminate the plaintiff. [57] Mr. Mallette and Mr. Berry both state that they are unaware of a written complaint from the plaintiff regarding the Bus Incident. [58] Mr. Mallette attaches to his affidavit an email dated May 14, 2025, two days after the Bus Incident, which he sent to Mr. Berry, Mr. Gibbons, and Mike Palosky, who is the manager of BST's bus transportation division, describing his investigation and the results of the investigation. [59] Mr. Mallette's affidavit summarizes what he did to investigate the Bus Incident, as follows: the day after the plaintiff's report of the Bus Incident, he spoke with Mr. Palosky to understand what occurred and to identify the bus driver. He spoke to the bus driver, who

described the incident as him grazing the back of the leg of the plaintiff's daughter as a joke, when the plaintiff's daughter and other students entered the bus, brushing themselves off and making comments about bugs being on them. [60] BST removed the bus driver from the scheduled route while the investigation continued. On May 20, 2025, BST issued a warning to the bus driver, reiterating that any contact with students is expressly forbidden, except when a person's physical safety is endangered. [61] Mr. Palosky also sent a warning letter to the bus driver, describing BST's condemnation of the bus driver's actions in touching the student and explaining that future incidents will result in disciplinary action up to and including termination. Issues [62] Based on the parties' filed materials and submissions at the hearing of the defendant's application, I frame the issues as follows: 1. Is the matter suitable for a summary trial?

2. Was the defendant entitled to terminate the plaintiff's employment without cause?

3. Did the defendant repudiate the Employment Agreement by paying her after termination three days after the mandated 48 hours in s. 18 of the ESA?

4. Did the defendant repudiate the Employment Agreement by failing to take action to protect the plaintiff against the alleged bullying by one or more other employees?

5. If the plaintiff was wrongfully terminated, is the plaintiff entitled to aggravated damages? Issue #1: Is the matter suitable for a summary trial? The Parties' Positions [63] The parties are in general agreement regarding the suitability of the matter for disposition by way of a summary trial, at least that was their initial position at the hearing. Defendant's position [64] The defendant's position is the defendant terminated the plaintiff without cause and paid her three weeks' pay in lieu of notice pursuant to the terms of the Employment Agreement. [65] The defendant's position on the suitability of the matter for summary trial is that the matter is highly suitable because it turns on an unambiguous and unchallenged termination provision of the written Employment Agreement. [66] The defendant focuses on the Employment Agreement and, to the extent that credibility may be relevant, the defendant points to documentary evidence in the form of contemporaneous written statements of BST management and employees regarding incidents involving the plaintiff at the workplace, challenging the plaintiff's allegations of bullying and management's alleged failure to support her. [67] The defendant submits that much of the evidence in the defendant's witnesses' statements are unchallenged by the plaintiff. [68] The defendant submits the court can achieve a just and fair result in the

context of a summary trial. Plaintiff's position [69] The plaintiff's position at the hearing initially was that the matter was suitable for summary trial, with the exception of one issue that plaintiff's counsel submitted should be hived off for trial on account of credibility issues, the single issue being the plaintiff's claim for aggravated damages. [70] After hearing the defendant's submissions, plaintiff's counsel agreed that the issue of aggravated damages was not a claim that could be made independent of the issue of the plaintiff's allegation of wrongful dismissal. [71] As a result, I understood the plaintiff's position to be that the matter is appropriate for summary trial. [72] However, the plaintiff's submissions also referred to the need for further discovery, amendments to her pleadings, and that it is premature to ask the Court to make a determination on the evidence before the Court at the hearing. [73] The plaintiff submits that a full trial will be needed to play out the incidents, giving as an example the plaintiff's submission that she only recently appreciated that the defendant's payment of her final pay following termination was not paid until five days after termination, exceeding the 48 hours mandated by s. 18 of the ESA, and her proposed further amendment to her amended notice of civil claim regarding the alleged defendant's repudiation of the

Employment Agreement. [74] The late payment issue, and the allegation that the defendant failed to support her when she was allegedly bullied by one or more of the employees, are the two foundations of her allegation of the defendant's repudiation of the Employment Agreement. [75] The repudiation issue is the subject of the plaintiff's request to further amend the amended notice of civil claim to include the allegation of repudiation. Plaintiff's counsel states that the missing allegation of repudiation in her existing pleadings was an "oversight". Legal framework - Summary Trial [76] Rule 9-7 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules] includes the following provisions regarding a summary trial application: (15) On the hearing of a summary trial application, the court may (a) grant judgment in favour of any party, either on an issue or generally, unless (i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or (ii) the court is of the opinion that it would be unjust to decide the issues on the application, (b) impose terms respecting enforcement of the judgment, including a stay of execution, and (c) award costs. . . . (17) If the court is unable to grant judgment under subrule (15) and considers that the proceeding ought to be expedited, the court may order

the trial of a proceeding generally or on an issue and may (a) order that the parties attend a case planning conference, (b) make any order that may be made under Rule 5-3 (1), or (c) make any other order the court considers will further the object of these Supreme Court Civil Rules. [77] General principles regarding the suitability of a matter to be decided by summary trial are set out in Hryniak v. Mauldin, 2014 SCC 7 at paras. 1-5, in which the Supreme Court of Canada encourages trial judges to interpret summary judgment rules broadly, to favour proportionality and access to the affordable, timely, and just adjudication of claims. [78] In Greenleaf Brewing Corporation v. Lonsdale Quay Market Corp., 2023 BCSC 2005, at paras. 19-26, Justice Stephens summarized the principles to be considered in assessing the suitability of the matter for summary trial, including the consideration of conflicts in the evidence, as follows: [23] Conflict in the evidence per se is not necessarily always a reason to render a summary trial application unsuitable. As the Court of Appeal stated in MacMillan v. Kaiser Equipment Ltd., 2004 BCCA 270: [22] The principles relating to the applicability of the summary trial procedure are not in dispute. It should be noted that the mere fact that there is a conflict in the evidence does not in and of itself preclude a chambers judge from proceeding under Rule

18A. A summary trial almost invariably involves the resolution of credibility issues for it is only in the rarest of cases that there will be a complete agreement on the evidence. The crucial question is whether the court is able to achieve a just and fair result by proceeding summarily. [24] However, a court should not decide an issue of fact or law solely on the basis of preferring one conflicting affidavit over another. There must be documentary evidence, evidence of independent witnesses, or undisputed evidence that undermines the affidavit of one of the parties on critical issues or some other basis for preferring one affidavit over another: Brissette at para. 27, citing Cory v. Cory, 2016 BCCA 409 at para. 10. [25] In addition, as a prerequisite to deciding a case as a summary trial, the court must be able to find the facts necessary to decide the issues of fact or law and must be of the opinion it would not be unjust to decide the issues. [Emphasis added.] [79] The factors to be considered regarding the suitability of a matter for summary trial were set out in Gichuru v. Pallai, 2013 BCCA 60 at para. 30, quoting Inspiration Mgmt. Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 229 (BC CA), 36 B.C.L.R. (2d) 202 (C.A.), as follows: a) the amount involved; b) the complexity of the matter; c) its urgency; d) any prejudice likely to arise by reason of delay; e) the

cost of taking the case forward to a conventional trial in relation to the amount involved; f) the course of the proceedings; and g) any other matter which arises for consideration on this important question. [80] In Gichuru, other matters added to the list include the cost of litigation and the time of the summary trial, whether credibility is a critical factor in the determination of the dispute, whether the summary trial may create an unnecessary complexity in the resolution of the dispute, and whether the application would result in litigating in slices: Gichuru, para. 31, citing Dahl v. Royal Bank of Canada et al., 2005 BCSC 1263 at para. 12. [81] On the issue of credibility, in Lu v. Li, 2023 BCSC 271, Justice Schultes considered credibility in relation to R. 9-7 as follows: [104] With respect to the determination of credibility, "[i]n appropriate circumstances, it is perfectly acceptable for a summary trial judge to make credibility findings on affidavit evidence alone": ARC Digital Canada Corp. v. Amacon Alaska Development Partnership, 2023 BCCA 34 at para. 40, citing Orangeville Raceway Ltd. v. Wood Gundy Inc., [1995] 6 B.C.L.R. (3d) 391 (C.A.) [107] More generally, when a summary trial is set down, the parties are obliged "to take every reasonable step to put themselves in the best position possible...[and] cannot, by failing to take such steps, frustrate the benefits

of the summary trial process." As in the case of discovery "the defendant may not simply insist on a full trial in hopes that with the benefit of viva voce evidence, 'something might turn up'": Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 275, at para. 34. [Emphasis added.] [82] With these legal principles in mind, the following section analyzes whether the matter is suitable for a summary trial, by considering the Inspiration Mgmt. factors in Gichuru. Analysis - Summary Trial [83] The Inspiration Mgmt. factors in Gichuru, as applied to the facts of this case, are as follows. (a) The amount involved [84] The only apparent evidence of the amounts in issue in the application materials is the plaintiff's annual salary of $52,000 in the Employment Agreement, three weeks' pay in lieu of notice, and the aggravated damages. [85] Three weeks' gross pay on $52,000 annually is approximately $3,000. [86] Since the plaintiff worked for the defendant for approximately two years and four months, if the plaintiff was successful on her claim for wrongful dismissal, absent any submissions on damages, I can only say that it appears that the plaintiff's claim for damages would not be expected to be nominal, but also not significant. This factor favours a summary trial. (b) The complexity of the matter [87] The matter is not complex. The focus of the case from the defendant's

perspective is the Employment Agreement, which appears to be a relatively standard form of agreement with a termination clause, including a without-cause termination provision providing for pay in the plaintiff's case exceeding the ESA minimum. [88] There is some detail in the defendant's affidavits about the alleged incidents involving the plaintiff, but these incidents are focused on three incidents in particular, and the fourth matter, the Bus Incident. This factor favours a summary trial. (c) Urgency [89] The parties expressed no urgency in having the matter heard. The factor is neutral. (d) Any prejudice likely to arise by reason of delay [90] There does not appear to be any specific prejudice to either party on account of delay, the defendant wishing to have the matter resolved in an efficient and timely manner, and the plaintiff submitting that further discovery and trial are needed. [91] I consider this factor favours a summary trial on account of the R. 1-3(1) object of the Rules being to secure the just, speedy, and inexpensive determination of every proceeding on its merits, and the associated proportionality principle in R. 1-3(2), that is, conducting the proceeding in ways that are proportionate to the amount involved, the importance of the issues in dispute, and the complexity of the proceeding. [92] Here, I have already referred to the amount involved as

apparently not significant and the issues not being complex. The issues in dispute are important to both parties, but that factor does not detract from the summary trial if justice can be done between the parties based on materials filed by the parties. (e) The cost of taking the case forward to a conventional trial in relation to the amount involved [93] As noted above, although no specific figures were referenced by the parties, other than the plaintiff's annual salary at $52,000 and the pay in lieu of notice being approximately $3,000, and no figure for aggravated damages claimed, the quantum of the claim does not appear to be significant. [94] The plaintiff made submissions about the need for discoveries and the suggestion that aggravated damages are a triable issue on account of credibility, later resiling from that position that aggravated damages could be claimed independent of the issue of alleged wrongful dismissal. [95] Given the amount in issue and the less than complex nature of the issues, the cost of taking the case forward to a conventional trial appears to make continuing litigation to trial a cost-ineffective proposition. This factor favours a summary trial. (f) The course of the proceedings [96] The notice of civil claim was filed on June 27, 2025, shortly after the plaintiff's termination on May 28, 2025. [97] The amended notice of civil claim was filed on

August 22, 2025, with an amended response to civil claim filed September 4, 2025. [98] Defendant's counsel referred to a list of documents having been delivered to the plaintiff. [99] The notice of application for summary trial was filed on February 5, 2026, with this hearing on February 24, 2025, so to date the matter has proceeded relatively expeditiously. [100] Again, however, given the limited complexity of the matter, the amount in issue, and considering proportionality, I consider it favourable to the parties that the matter be decided earlier rather than extending through discoveries to a trial, so this factor favours a summary trial. (g) Any other matter which arises for consideration on this important question [101] Gichuru refers to other factors, including the cost of litigation, the time of the summary trial, whether credibility is a critical factor in the determination of the dispute, whether the summary trial may create an unnecessary complexity in the resolution of the dispute, and whether the application will result in litigating in slices. [102] Here, as I have noted above, it is possible, although not certain, that the cost of litigation to trial could exceed the damages claimed. [103] Credibility is a potential issue, but I do not consider it a critical factor, as there is relatively extensive evidence from the defendant's witnesses based on contemporary

accounts of the events in question, much of which I agree goes unchallenged by the plaintiff. [104] This provides some support for summary trial if credibility is not a critical factor. As stated in Lu: "[i]n appropriate circumstances, it is perfectly acceptable for a summary trial judge to make credibility findings on affidavit evidence alone". [105] The two prerequisites under R. 9-7 are that the court must be able to find the facts necessary to decide the issues of fact or law, and the court must be of the opinion that it would not be unjust to decide the issues: Brissette v. Cactus Club Cabaret Ltd., 2017 BCCA 200 at para. 26. [106] Brissette is also useful for the Court of Appeal encouraging trial judges to make use of the summary trial procedure, as follows: [20] The use of the summary trial procedure was encouraged by the majority of the five-justice division of this Court in the seminal decision of Inspiration Management Ltd. v. McDermid St. Lawrence Limited (1989), 36 B.C.L.R. (2d) 202, 36 C.P.C. (2d) 199 (C.A.). Until this decision, Rule 18A applications were not receiving consistent application, and some judges were adopting an extremely cautious approach. On behalf of the majority, Chief Justice McEachern made the following comments in an effort to settle the practice to be followed (at 213): In my judgment, it must be accepted that while every effort must be made

to ensure a just result, the volumes of litigation presently before our courts, the urgency of some cases, and the cost of litigation do not always permit the luxury of full trial with all traditional safeguards in every case, particularly if a just result can be achieved by a less expensive and more expeditious procedure. [21] Chief Justice McEachern said the following about the issue of whether it will be unjust to decide the issues (at 214): In deciding whether it will be unjust to give judgment the chambers judge is entitled to consider, inter alia, the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings and any other matters which arise for consideration on this important question. He did caution that a judge should not decide an issue of fact or law solely on the basis of conflicting affidavits even if the judge prefers one over the other, but he pointed out that other admissible evidence may assist the judge in resolving the conflicts. [22] The summary trial procedure has served the British Columbia judicial system well over the past 34 years. Its use should continue to be encouraged, and trial judges should not be timid in considering its suitability to decide the action or issues within

the action. This is particularly so in light of two developments in the past number of years relating to the concept of proportionality. [107] The defendant cites McMahon v. Maximizer Services Inc., 2023 BCSC 4, and Dahl in support of the submission that this Court has found wrongful dismissal cases suitable for summary trial, where the matter raises a discrete question of contract interpretation. [108] In Dahl, relating to credit card agreements, the Court of Appeal refers to the case being an ideal candidate for the summary trial procedure where the contracts and any other relevant evidence may be put before the Court in affidavit form. [109] Here, there is no dispute that the Employment Agreement is the employment contract between the plaintiff and defendant, and the termination clause is clear. [110] In McMahon, also in an employment context, the issue was whether the termination clause in the employment agreement was enforceable. The plaintiff alleged the termination clause was vague and unclear and did not provide the minimum amount of severance payable in accordance with the ESA. [111] Justice Mayer, as he then was, found that the matter was suitable for summary trial because it raised a discrete issue of contractual interpretation, which, if decided in favour of the defendant, would resolve the whole of the action. [112] Justice Mayer found in favour of the defendant

employer that the termination clause was enforceable, and also noted that, given his findings, there could be no award of aggravated damages for the manner in which the plaintiff was dismissed, citing Damani v. Stuart Olson Construction Ltd., 2015 BCSC 2322 at paras. 22-23, where the Court stated that if the employee is not wrongfully dismissed, there can be no aggravated or punitive damages awarded for the manner of dismissal. [113] Here, the plaintiff does not take issue with the fact that she signed the Employment Agreement, and it included the termination clause. She did not allege that the Employment Agreement is not enforceable on its terms. She alleges that the BST cannot rely on the termination clause because BST is alleged to have repudiated the Employment Agreement by paying her three weeks' pay in lieu of notice three days later than required by the ESA, and BST failed to support her in her bullying allegations, principally against Ms. Tosczak. [114] There is some conflict between the plaintiff's affidavit and the defendant's affidavits. However, as analyzed below, there is some unchallenged evidence in the defendant's evidence, there is some documentary evidence supporting the defendant's position, and there is consistent evidence of other witnesses that does not require me to make a choice between conflicting affidavits to make a decision on the issues in this

matter. [115] As stated in Brissette, at para. 27: [27] As noted in Inspiration Management, the court should not decide an issue of fact or law solely on the basis of preferring one conflicting affidavit over another. This was recently reiterated in Cory v. Cory, 2016 BCCA 409 at para. 10: there must be documentary evidence, evidence of independent witnesses or undisputed evidence that undermines the affidavit of one of the parties on critical issues or some other basis for preferring one affidavit over another. [116] Finally, the plaintiff submits that further discovery is needed to flesh out the evidence the defendant has disclosed and included in its affidavits, the plaintiff referring to relevant documents related to the employment relationship, the Employment Agreement and the termination letter, and also detailed statements made contemporaneously by members of BST's management team and other employees regarding the plaintiff's conduct in the workplace, and BST's response regarding the three incidents and the Bus Incident. [117] However, it is incumbent on the plaintiff to put her best foot forward at a summary trial: see Lu at para. 107: [107] when a summary trial is set down, the parties are obliged "to take every reasonable step to put themselves in the best position possible...[and] cannot, by failing to take such steps, frustrate the benefits of the summary trial

process." As in the case of discovery "the defendant may not simply insist on a full trial in hopes that with the benefit of viva voce evidence, 'something might turn up'" See also Gill v. Gill, 2022 BCCA 264 at para. 55. [118] Here, there is some conflicting evidence between the plaintiff's affidavit and the defendant's affidavits; however, the issues are limited to a relatively straightforward interpretation of the Employment Agreement based on a without cause termination, and the plaintiff's repudiation and aggravated damages claims relying on an assessment of the plaintiff's allegations of bullying and late payment of the three weeks' pay in lieu of notice. [119] As a result, it appears the Court is in a position with the filed material to find the facts necessary to decide the issues of fact and law, and that it will not be unjust to decide the issues by way of summary trial. [120] Having decided that it is appropriate to proceed to determination of this matter by way of summary trial, the next issue to be considered is whether the defendant was entitled to terminate the plaintiff without cause pursuant to the terms of the Employment Agreement. Issue #2: Was the defendant entitled to terminate the plaintiff's employment without cause? [121] The issue of the plaintiff alleging the defendant's repudiation of the Employment Agreement could be considered first; however, even

in that case, the validity of the Employment Agreement, and the interpretation of the termination clause of the Employment Agreement itself, are relevant to the repudiation issue. [122] The interpretation issue is relatively straightforward and does not appear contentious, because the plaintiff pleads in her notice of civil claim and amended notice of civil claim that she entered into the Employment Agreement without challenging the validity of the Employment Agreement, including the termination clause, nor does she allege that the Employment Agreement is unconscionable. She does not allege repudiation in those pleadings, but now seeks to further amend her amended notice of civil claim to plead repudiation. [123] Also relevant is the defendant's submission that inquiry into cause is not necessary in this case, because the defendant terminated the plaintiff without cause and paid her the contractual payment, three weeks' pay in lieu of notice, which exceeds the ESA minimum. [124] In these circumstances, it appears appropriate to begin with the interpretation of the termination clause of the Employment Agreement and its enforceability before repudiation is considered. [125] The affidavit evidence about the plaintiff's conduct in the workplace and the defendant's response is relevant to the plaintiff's claim that the defendant repudiated the Employment Agreement, and the

plaintiff's allegation that BST repudiated the Employment Agreement and her claim for aggravated damages. [126] However, the first issue is focused simply on an interpretation of the termination clause in the Employment Agreement. That is, was the defendant entitled to terminate the plaintiff's employment without cause pursuant to the termination clause of the Employment Agreement? [127] If the defendant was entitled to terminate the plaintiff's employment without cause, then the analysis is whether the defendant repudiated the Employment Agreement and, if so, the defendant is not entitled to rely on the Employment Agreement, and the analysis precedes the plaintiff's claim for aggravated damages. [128] If the defendant was not entitled to terminate the plaintiff without cause pursuant to the termination clause, then the analysis also precedes the plaintiff's claim for aggravated damages, and whether the defendant repudiated the Employment Agreement may be related to the claim for aggravated damages. [129] I have already quoted the termination clause of the Employment Agreement above. The key terms read as follows: 35. Berry & Smith may terminate your employment without Cause, and without further obligation, by providing you with notice or regular wages in lieu of notice, as follows: a. after three (3) months of continuous employment ; or b. after one (1) year of continuous

employment, three (3) weeks' notice or regular wages in lieu of such notice; or c. after three (3) years of consecutive employment . [Emphasis added.] Law [130] The defendant refers to Damani, regarding the basic principles of employment contracts as follows: [16] Turning to the claim for wrongful dismissal, there is no dispute that, absent unconscionability, an employer may displace the presumption of reasonable notice in an employment contract. This principle was affirmed in Brown v. Utopia Day Spas and Salons Ltd., 2014 BCSC 1400 at paras. 16-17: The common law presumes that a contract of employment runs for an indefinite term, terminable on reasonable notice of termination. A contract that clearly specifies some other period of notice which [sic] either expressly or impliedly rebuts the presumption. Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, at 998-999 [Machtinger] as cited in Miller v. Convergys CMG Canada Limited Partnership, 2013 BCSC 1589, at paras. 39 and 42. Absent unconscionability, an employer can make contracts with employees that "referentially" incorporate the minimum notice periods in the ESA. Such contractual notice provisions are enough to displace the presumption that the contract is terminable without cause only on reasonable notice. Machtinger at 1004-1005. See also: University of British Columbia v. Wong, 2006 BCCA 491 [UBC]. [131] The

defendant also refers to the law of wrongful dismissal summarized by Justice Gomery, as he was then, in Conway v. Griff Building Supplies Ltd., 2020 BCSC 1899 at paras. 41-45, that is, the relationship between an employer and employee is contractual. Employment contracts of indefinite duration contain an implied term. They may be terminated by either party giving a reasonable notice of an intention to terminate the contract, and where the contract is ended by a reasonable notice of termination, there is no breach of contract. The contract is terminated in accordance with the implied term. [132] Here, the plaintiff pleads in her notice of civil claim and amended notice of civil claim that she entered into the Employment Agreement on or about December 22, 2022. [133] The parties agree that she commenced her employment with BST on December 26, 2022. [134] The plaintiff does not take issue with the wording of the termination clause, nor that the provision for payment without cause exceeds the minimum in the ESA. She does not plead that the Employment Agreement is invalid. [135] She was employed by BST for two years and four months which, under the termination clause in the Employment Agreement, entitled her to three weeks' notice or regular wages in lieu of such notice if she had worked for more than one year but less than three years, which exceeds the ESA minimum. [136] The

defendant submits that this is a case of a valid employment contract that specifies a period of notice which displaces the presumption of reasonable notice under the common law: citing Shultz v. Prococious Technology Inc., dba Cleardent, 2022 BCSC 1420, at paras. 21-26, and Damani, at paras. 16-17. [137] As a result, the threshold issue is an issue of contract. The termination clause of the Employment Agreement is clear, unambiguous, valid, and enforceable. BST was entitled to terminate the plaintiff's employment pursuant to the termination clause in the Employment Agreement, subject to the inquiry as to whether or not BST repudiated the Employment Agreement on account of payment in lieu of notice three days beyond the 48 hours minimum in the ESA, or on account of the plaintiff's allegations that she was bullied and BST did not support her. Issue #3: Did the defendant repudiate the Employment Agreement by paying her after termination three days after the mandated 48 hours in the ESA, s. 18? [138] The plaintiff has not pled in her notice of civil claim or the amended notice of civil claim that the defendant cannot rely on the Employment Agreement, submitting that the defendant has repudiated the Employment Agreement by paying her payment in lieu of notice five days after she was terminated, three days longer than within 48 hours as required by s. 18(1) of the ESA, which provides

an employer must pay all wages owing to an employee within 48 hours after the employer terminates the employment; however, at the hearing of the application, the plaintiff seeks leave to further amend her amended notice of civil claim to plead repudiation. [139] Regarding repudiation, the plaintiff cites Klyn v. Pentax Canada Inc., 2024 BCSC 372. The defendant also relies on Klyn. [140] Given the plaintiff's submission that Klyn is indistinguishable from the case at bar, it will be useful to consider the facts of that case. [141] In Klyn, the plaintiff was employed by the defendant, Pentax, as an independent contractor in 2001, and he became an employee in 2007. In 2006, the parties entered an employment contract in which Mr. Klyn's compensation was 100% commission-based, subject to ESA minimums. The contract included a termination clause. [142] In 2014, Pentax changed Mr. Klyn's compensation from 100% commission to a base salary of $100,000 and imposed new commission rates. [143] In 2022, Pentax terminated Mr. Klyn's employment in writing on a without- cause basis. The termination letter purported to place a number of conditions on payments, including a duty to report mitigation efforts monthly. The termination letter was followed by an email 25 days later warning that failure to comply with the reporting requirements could result in payment ceasing. From the time of

termination, Pentax paid only the salary portion of Mr. Klyn's pay until July 2022, when it ceased payments altogether. [144] The Court found that Pentax's failure to pay at least the amount it considered to be required under the contract, in compliance with its understanding of its own obligations, was a clear breach of the contract, and the failure to make the payments required under the termination clause was a clear and unequivocal breach of a central term of the contract. As a result, the court found that the damages owed to Mr. Klyn were to be calculated on the common law. [145] The plaintiff submits that Klyn is indistinguishable from the case at bar, in that Klyn found the late payment as a breach of the ESA, specifically referring to the following paragraphs in Klyn: [8] I find the failure to make the payments required under the termination clause to be a clear and unequivocal breach of a central term of the contract. I find the employment contract was repudiated by Pentax. [34] Moreover, I find that Pentax's conduct in deliberately failing to compensate a terminated employee according to even its own understanding of the terms of the contract warrants rebuke. I have taken into consideration that this is the same conduct which led to the repudiation of the contract, to Pentax's detriment. [Emphasis added.] [146] I note that the plaintiff attempts to equate the

three-day late payment in the case at bar with the Klyn case of non-payment. In my view, the non-payment in Klyn clearly distinguishes the Klyn case from the case at bar and, importantly, the Court in Klyn found that the failure to make the payments required under the termination clause was a clear and unequivocal breach of a central term of the contract. [147] Further, the Court found in Klyn that the defendant's termination of a long- term employee without notice would almost invariably present a significant change to their financial situation, and the defendant's attempt to leverage the employee's uncertainty by giving him the impression that his entitlements depended on his acceptance of oppressive terms of a release was not only oppressive but reprehensible, and the court awarded the plaintiff $25,000 in punitive damages. [148] The plaintiff asserts that Klyn is about compliance with the ESA; however, the only reference to the ESA was that the employment contract was subject to the minimum entitlements pursuant to the ESA, which was not an issue in the case beyond that brief reference. [149] Here, the defendant's non-compliance with the ESA requirement for payment of wages after termination within 48 hours, by making payment of the three weeks' pay in lieu of notice three days later than the 48 hours after termination, cannot be equated to the Klyn breach of the central

term of the contract by failing to make payments at all. [150] Here, the plaintiff received what she was entitled to under the Employment Agreement, albeit three days later than the ESA requirement. [151] The defendant refers to Klyn's statement of the law of repudiation as follows at para. 6: [6] The parties agree on the applicable law. Repudiation is a breach of contract by one party giving rise to the right of the other party to terminate the contract and pursue the available remedies for the breach. A breach is a repudiation of the contract if it is a breach of a contractual condition or of some other sufficiently important term of the contract so that there is a substantial failure of performance (see Potter v. New Brunswick (Legal Aid Services Commission), 2015 SCC 10 at paras. 144-145). [152] In Klyn, non-payment of wages owed was a substantial failure of performance of the contract. [153] The defendant also cites Bonilla v. Ciurariu, 2008 BCSC 925 at para. 58, quoting Chitty on Contracts, 29th ed. (London: Sweet & Maxwell, 2004) at 24-018, regarding repudiation requiring the term of the contract breach to be an essential one; a mere trivial breach will not be sufficient for repudiation, and the issue to be determined, being whether the breach deprived the innocent party of "substantially the whole benefit which it was the intention of the parties that he should obtain

from the obligations of the parties under the contract then remaining unperformed." [154] Defendant's counsel submitted that he made efforts to research whether non- compliance with s. 18 of the ESA had been the subject of an award in the caselaw. The only reference he could find was a decision of the Employment Standards Tribunal, The Piano Room Bistro & Lounge Ltd. (Re), 2018 BCEST 16, in which a $500 administrative penalty was rendered against the employer on a determination by a delegate of the Director of Employment Standards for failure to pay wages owed to an employee within 48 hours of termination. The decision was upheld on appeal by the Employment Standards Tribunal. [155] Here, the termination clause of the Employment Agreement did not include any term relating to the timing of the three weeks' pay in lieu of notice, but the late payment failed to comply with the ESA. The payment three days late was not a substantial failure of performance of the contract. In my view, it was more akin to a trivial breach. [156] Finally, regarding the need for communication of acceptance of repudiation, Bonilla at para. 63 states that: "[i]t is essential for the innocent party to communicate to the other party his acceptance of the other party's breach or repudiation of the contract in order for the contract to be ended", also referring in more detail to Waddams, The Law of Contract

in Canada 5th ed. (Canada: Carswell, 2006) at 616- 619. [157] Here, there is no evidence the plaintiff ever accepted the defendant's alleged repudiation of the Employment Agreement. [158] The defendant's payment of the three weeks' pay in lieu of notice pursuant to the termination clause in the Employment Agreement three days later than the 48- hour requirement in s. 18(1) of the ESA was contrary to the ESA, but not a breach of a contractual condition or of some other sufficiently important term of the contract so that there was a substantial failure of performance. [159] As a result, the plaintiff has not proven on a balance of probabilities that the defendant repudiated the Employment Agreement on account of the late payment. Issue #4: Did the defendant repudiate the Employment Agreement for failing to take action to protect the plaintiff against the alleged bullying by one or more other employees? [160] The plaintiff submits that the defendant also repudiated the Employment Agreement by failing to protect her from bullying. [161] I agree with the defendant's submission that the plaintiff has failed to prove the defendant repudiated the Employment Agreement on that basis. [162] The plaintiff's evidence is that a fellow employee, Ms. Tosczak, not BST's management, was abusive towards her. She seeks to connect this alleged abuse to BST's management by alleging she had reported

issues to management, but there was no action taken and she was "left out to dry". [163] However, the plaintiff's allegations of bullying were news to Mr. Berry and Mr. Mallette. When the plaintiff was asked at the meeting with them on May 26 what abuse she had suffered, the plaintiff's report was of huffing and sighing, as compared to BST's well-documented investigations of the incidents of the plaintiff's aggressive conduct to Ms. Tosczak, and the contemporaneous statements of Mr. Berry and Mr. Mallette and others regarding the three central incidents, with those affidavit accounts for the most part going unchallenged by the plaintiff. [164] In my view, the defendant's action, through its management team, was appropriate in their timely response to each of the three incidents of reports of the plaintiff's aggressive conduct to others in the workplace: by investigating the incidents, by meeting with the plaintiff, by suggesting ways how she might attempt to improve her communications with other employees, and by warning her that further instances of such conduct could lead to discipline. [165] The Bus Incident is another example of BST's management appearing to take appropriate steps in a timely manner to investigate the incident, to address the issue with the bus driver, and to warn the bus driver that any further incidents could lead to disciplinary action, including

termination. [166] That Bus Incident, and the plaintiff's report of that incident, was not related in any way to the termination of the plaintiff, or any retaliation by the employer on the plaintiff. [167] I also agree with the defendant's submission distinguishing the case cited by the plaintiff, Humphrey v. Mene, 2021 ONSC 2539, regarding bullying, as follows: a) the Court found in Humphrey that the termination clause was invalid because it was part of a new employment agreement and had been entered into without new consideration, quite different from the case at bar; b) the misconduct in Humphrey was committed by the employer, not an employee, as in the case at bar; c) the misconduct in Humphrey was found to be support of finding a constructive dismissal and repudiation of the employment agreement, which I find is not the case here; and d) the misconduct in Humphrey was more extensive and severe than what is alleged here. [168] As a result, the plaintiff's evidence falls short of demonstrating that she was bullied, and falls short of proving, on a balance of probabilities, that management was either involved in the bullying, or failed to support her in the alleged bullying. As both Mr. Berry and Mr. Mallette stated in their affidavits, she did not report bullying until their meeting with the plaintiff on May 26, 2025, at which time she reported to them that the "bullying"

was Ms. Tosczak huffing and sighing. Issue #5: If the plaintiff was wrongfully terminated, is the plaintiff entitled to aggravated damages? [169] The plaintiff claims aggravated damages, but concedes that without a finding of wrongful dismissal, a claim for aggravated damages cannot succeed as an independent claim. [170] Here, I have found that the defendant was entitled to terminate the plaintiff without cause, and the defendant paid the contractual three weeks' pay in lieu of notice, albeit three days after the minimum 48 hours in the ESA. [171] Hence, the plaintiff's claim for aggravated damages is dismissed. [172] However, even if the defendant was not entitled to terminate the plaintiff without cause, in my view, the manner in which the plaintiff was terminated would not be cause to award aggravated damages in this case. [173] The defendant cites Damani for a definition of aggravated damages as follows: [22] Aggravated and punitive damages arising out of a dismissal flow from the cause of action for wrongful dismissal which is based on a failure to give the required notice or pay in lieu of notice. See, Honda Canada Inc. v. Keays, 2008 SCC 39 at paras. 50-52. Damages that flow from the wrongful dismissal may thus include compensation for the manner of the dismissal if the employer engages in conduct that is unfair or amounts to bad faith: Honda Canada at para.

57. This is because an employer owes a duty of good faith and fair dealing to its employees in regard to the manner of dismissal: Honda Canada at para. 58. [Emphasis added.] [174] Here, the evidence is that the conduct for which the plaintiff complained was allegedly committed by an employee, not management, and management appears to have acted appropriately when the plaintiff's conduct was reported by other employees. They investigated the conduct in a timely manner, and they met with the plaintiff to attempt to assist her in communicating with other employees in a respectful manner. [175] Most of the incidents as reported by the other employees went unchallenged by the plaintiff. Contemporaneous statements of the various incidents support the defendant's employees' affidavits, specifically, to a great extent, where there is conflict between the plaintiff's affidavit and the other employees' affidavits. [176] Finally, the management team's evidence of the manner of the plaintiff's termination, as documented in their contemporaneous statements, would not support a claim for aggravated damages, the plaintiff having been warned on two previous occasions that aggressive conduct in the workplace was not acceptable, before the third incident, and the defendant's termination of the plaintiff without cause, as clearly provided for in the Employment Agreement. Conclusion [177] As a result, the defendant's application for summary trial is granted and the plaintiff's action is dismissed in its entirety. [SUBMISSIONS ON COSTS.] [178] Costs are awarded payable by the plaintiff to the defendant. "Jones J."