1999 SKQB Q.B.G. A.D. 1997 No. 1582 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: RODNEY DIGNEAN and WHITE BEAR FIRST NATION NO. DEFENDANT Darcia G. Schirr for Rodney Dignean Michael B. Griffin for White Bear First Nation No. 70 JUDGMENT WIMMER J. August 5, 1999 [1] In May 1988, White Bear First Nation No. 70 hired Rodney Dignean to serve as guidance counsellor at its education complex located near Carlyle, Saskatchewan. In 1990, he became co-ordinator of post secondary education programs and remained in that position until terminated in May 1997. He now seeks damages for wrongful dismissal. [2] In addition to managing the post secondary programs, with an annual budget approaching $960,000 in recent years, Dignean also taught upgrading and university entrance courses and supervised other teaching and support staff. Until the end of the 1995-1996 school year he was responsible, through the director of education, to the Chief and Band Council. Then, in the summer of 1996, an education board was established and given the task of overseeing the administration of the education complex and its teaching programs. The board initially took the form of committee appointed by the Chief and Council. Later it became corporation known as White Bear Education Complex Inc. with the members of the original committee becoming members of the corporation’s board of directors. Relations between Dignean and board members were not good. [3] Dignean felt that board members were intruding too much into administrative matters rather than concentrating on policy decisions. Also, they made demands that were difficult to comply with. Board members, on the other hand, regarded Dignean as uncooperative and insubordinate and, at board meeting held on September 3, 1996, they passed resolution requiring that he be reprimanded for withholding information. Dignean was offended by this and thought it unfair. He says he was never sure exactly what they expected of him and, on September 20, 1996, he presented letter to the chairman of the board outlining his frustrations. Later, on December 13, 1996, he again documented his concerns in letter to the band council solicitor, Lesia Osterag. This was done upon her recommendation and was authorized by member of council. Unfortunately, it only fomented more trouble and, at meeting held on January 29, 1997, the Chief and Council passed the following resolution: whereas: A. The Board of Directors of the White Bear Education Complex Inc. have serious concerns with number of the employees working within White Bear Education Complex system. B. The Board of Directors of the White Bear Education Complex Inc. proposes to proceed as follows with respect to the following employees: (b) With respect to Rodney Dignean that he be suspended, without pay, for ten day period, effective January 29, 1997, during which time full investigation of his conduct in his position of Coordinator of Post Secondary Programs be completed. If such investigation reveals situation where just cause for dismissal has occurred then to proceed to dismiss Mr. Dignean for just cause in writing with full reasons set out. NOW THEREFORE BE IT RESOLVED THAT the Chief and Council fully endorse and support the proposed method of proceeding with personnel issues within the White Bear Education system as set out above. As things turned out, Dignean’s ten day suspension continued until May 15, 1997, when he was formally terminated by resolution passed at joint meeting of the Chief and Council and the White Bear Education Complex Inc. Board of Directors. [4] Whether there was any adequate investigation carried out as contemplated by the January 29 resolution is doubtful. very brief written report by one Reggie Blacksmith, in which he describes himself as “Consultant for the White Bear Education Complex Inc. Board,” concludes that: Rodney Dignean must be terminated from the position as “Post-Secondary Co-ordinator.” For he has disgraced his responsible position, and lost the trust of his employer, White Bear First Nations Chief and Council and White Bear Education Complex Inc. This conclusion appears to be based upon little more than an examination of Dignean’s December 13, 1996, letter to the band council solicitor. It is not apparent that Blacksmith interviewed any education complex employee or anyone else who might have been able to assist in the inquiry. He did not testify at the trial. [5] Dignean received formal notice of his termination by means of letter dated May 22, 1997, directed to his counsel. He commenced this action on June 4, 1977, claiming: a) General damages as may be proven at trial in an amount exceeding $10,000; b) Special damages; c) Punitive or aggravated damages; d) Solicitor/client costs; e) Pre-judgment interest; and f) Such further or other relief as this Honourable Court may allow. The Band countered with statement of defence alleging that the termination was for just cause. It provided the following particulars: 10. Just cause for the Plaintiff’s dismissal from his employment existed in that: (a) He failed to co-operate with the Board of Directors of the White Bear Education Complex Inc. even though this Board was duly appointed by the Chief and Council of White Bear to oversee the functioning of all education programs and education facilities at White Bear. (b) He failed or refused to carry out the reasonable instructions of the Board of Directors such as providing information or copies of written documentation to them. (c) He actively contributed to the disruption of the work place. (d) He failed and/or refused to follow instructions of the Board of Directors. (e) He displayed negative attitude toward the Board of Directors which attitude was displayed in front of other staff members and in front of students. (f) He was insubordinate toward the Board of Directors in that he publicly name-called, defamed and criticized the Board of Directors thereby breaching his duty of loyalty owed to the Board and the White Bear First Nation. modicum of evidence supports some of these assertions. The question is whether it is enough to justify summary dismissal. [6] Just cause is not altogether term of art. In general, it refers to that degree of misconduct or incompetence which warrants stiff reprisal as opposed to some lesser sanction such as warning, reprimand or remediation. Mole, Wrongful Dismissal Practice Manual, vol. (Toronto:Butterworths:, 1984 (looseleaf, 1998, Issue 52), §4.3 and 4.4, puts it this way: §4.3 Given that dismissal for just cause is an exception to the employee’s usual rights, it is clear that summary dismissal can be utilized only for serious misconduct or breaches of fundamental kind. §4.4 The question whether misconduct is serious enough to justify dismissal will be question of fact to be assessed individually in each case. This passage is from the judgment of Baynton J. in Rae v. Armadale Co. et al (1998), 1998 CanLII 13909 (SK QB), 173 Sask. R. 174 (Sask. Q.B.) at 181: 1. Just cause for dismissal (i.e., that which entitles an employer to dismiss an employee without reasonable notice) entails serious misconduct on the part of the employee that is clearly inconsistent with his or her express or implied conditions of service. Serious misconduct involves risk of injury to the employer’s interest through continued employment. Each case must be considered on its own unique set of circumstances, including the length of employment and the nature of the position held. What constitutes just cause must be determined objectively. Howard A. Levitt, The Law of Dismissal in Canada (2nd Ed.) (Toronto: Canada Law Book, 1992) at p. 122. The onus of proving the existence of just cause always lies with the employer and it is not enough simply to show a loss of confidence in the employee or dissatisfaction with his or her job performance. [7] Dignean had been relatively long term employee of the defendant and his qualifications for the job were ample. He holds Bachelor of Arts and Bachelor of Education from the University of Saskatchewan together with Diploma in Education Administration from Brandon University. Eugene Doroshenko, the director of education until early 1997, testified that Dignean’s work was satisfactory. He described Dignean as caring, innovative, and always having the best interests of the students at heart. He also said that programs at the education complex were achieving positive results. This notwithstanding, his own employment was terminated in early 1997 as was that of number of teachers. It appears that the directors were determined to make fundamental changes overall. [8] Evidence presented on behalf of the defendant focused upon three complaints concerning Dignean’s conduct and job performance. The first was that he did not strictly comply with the post secondary education reporting requirements of Indian and Northern Affairs Canada thereby putting the band at risk of possibly losing federal funding. Second, there was feeling among some that he deliberately refused, or at least failed, to comply with requests by board members for information. And third, that he was insubordinate and demonstrated negative attitude toward board members particularly as evidenced by an offensive comment made at staff meeting. [9] Indian and Norther Affairs had requirement that student funding reports (otherwise referred to as “census”) be filed by December of each year to justify the legitimacy of education expenditures. The department used the information to explain and defend First Nation education funding at both national and regional levels. Preparation of the census was Dignean’s responsibility and in 1996 he was late. In fact, the department did not receive the information until February 5, 1997. Some board members apparently saw this as breach of duty which imperiled funding for its programs. Dignean explained that the delay on that occasion resulted because he was then in the process of computerizing the information to make the system more efficient. The department’s funding services officer of the day testified that these reports were most often late and that funding restrictions were never imposed on that account. Further, the present co-ordinator of post secondary education programs has, without adverse consequences, been much slower than Dignean in preparing the census. It follows that this complaint could not warrant summary dismissal. [10] Cheryl Peterson, Jackie Maxie, Doreen Pasap and Almer Standingready testified for the defence. Each was member of the board of directors at the relevant time and each expressed dissatisfaction with the way Dignean provided information to the board. Peterson said that when information was requested it was not forthcoming and that when provided it was not up to date. Maxie also complained of incomplete information and felt Dignean was insubordinate in not complying with requests. Pasap and Standingready simply spoke of information not being provided to their satisfaction. [11] Dignean disputes these suggestions and says he did his best to meet their demands. On one occasion he put together an information package for each board member and brought it to meeting. However, they would not look at it because it was not in the form they wanted. He says if he had known what they wanted he would have done his best to comply. There is evidence that supports his position. Doroshenko says there was never any withholding of information from board members and that everything that was asked for was provided. The problem was they kept asking for more and more. Seemingly, they could never be satisfied. [12] Donald McArthur was not member of the board of directors, but he was the band councillor with responsibility for education. He says, in general, that board members harassed and threatened teachers. As for the complaints about Dignean, he says they were unjustified because there was never enough time provided for the preparation of the kinds of reports some board members expected. He disagreed with Dignean’s suspension and said it arose from the letter sent to Lesia Osterag on December 13, 1996. McArthur thought everyone had right to express concerns and, in fact, he had told Dignean that if he had concerns they should be brought forward. At one point, at Dignean’s request, he tried to organize meeting with the board to discuss policies and guidelines. It never happened. When it came to Dignean’s termination he says there was no discussion about what, in particular, they were relying upon as just cause. The motion just passed. [13] There were disagreements that undoubtedly led to friction. These frequently had to do with student funding applications, often by board members and their children. For example, one board member, Angie McArthur, was herself student. In September 1996, she applied to the board for funding extension. Dignean opposed this because it would be contrary to existing policy. Her maximum allotment had been used up. Dignean wanted to follow established practices in order to avoid any appearance of politically motivated decisions, bias or conflict of interest. Also, there was funding cap and he tried to apply consistent standards in order to accommodate all qualifying applications. The board nevertheless passed motion authorizing the extension McArthur requested. It was this sort of episode that perhaps culminated in an unfortunate occurrence at staff meeting in October. [14] It was an emotional meeting described by one witness as “gripe session.” Staff morale at the education complex had become very low. In the heat of the moment Dignean referred to board members as bunch of “dry drunks” trying to run an education program. He says he used the analogy to describe person who says one thing but does another person who claims all is well but whose patterns of behaviour suggest otherwise. He admits it was bad analogy and it is one which might, in some circumstances, justify dismissal. Board members learned of the incident the day it happened but took no action. They never confronted Dignean about it and, as infer from the testimony of Donald McArthur, it was not one of the factors leading to his suspension in January 1997. Nor is it referred to in Blacksmith’s investigation report as basis for the dismissal recommendation. In my opinion, insubordination serious enough to warrant dismissal for cause must be acted upon with dispatch as was done in the case of Laird v. Saskatchewan Roughrider Football Club (1982), 1982 CanLII 2616 (SK QB), 18 Sask. R. 333 (Sask. Q.B.). The failure so to do when all the facts are known can amount to forbearance if not condonation or forgiveness. [15] To me, the evidence taken as a whole falls short of proving just cause. There is no doubt that board members were unhappy with Dignean, but never did anyone meet with him to discuss the reasons. There was no adequate job description and no performance evaluation. He was not given chance to adapt. Whether by design or accident, some members of the board created working environment that made it impossible for Dignean to perform his duties to their satisfaction. It was as though they were determined to see him gone and set about to find way. He was treated unfairly and wrongfully dismissed. His damages, however, are limited. [16] Dignean’s contract with the Chief and Band Council was not one of indefinite hiring. Like all teachers at the education complex, he was employed from year to year. One year contracts were necessary because long term funding was always uncertain. Contracts for the 1996-97 school year contained this clause: 7. This agreement shall be in force for the Academic year 1996-97 or until terminated in manner as set out hereunder: a) at any time by mutual agreement of the parties in writing. b) by either of the parties with three (3) months notice in writing to the other party. c) by the Band at any time and without notice for just cause. d) replaced by new agreement between the parties. The academic year runs from September to June 30. Dignean was dismissed within weeks of his contract expiring in the normal course. [17] An employee dismissed without cause during the currency of fixed term contract is entitled to be paid for the whole of the term. That is clear from the judgment of Mr. Justice Scheibel in Zaglanikis v. Dana West Hotels et al (1982), 1982 CanLII 2298 (SK QB), 20 Sask. R. 59. Dignean’s contract provided for an annual salary of $45,760.60 to be paid in twelve monthly installments. Up to the date of his termination he had received $33,366.38. He is entitled to judgment for the difference; namely, $12,394.22. He will also have pre-judgment interest on that amount calculated in accordance with The Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2. [18] There remains the claim for punitive or aggravated damages. Collectively referred to as exemplary damages, these are rarely awarded in contract cases where the injured party is essentially entitled to no more than the contract provides. Circumstances that may justify such awards are described in Vorsis v. Insurance Corporation of British Columbia, 1989 CanLII 93 (SCC), [1989] S.C.R. 1085. [19] Punitive damages are what the phrase implies. They are intended as an expression of denunciation of the wrongdoer’s conduct and as form of punishment where there has been no other sanction. Mr. Justice McIntyre stated in Vorsis at page 1108 that they “. may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. .” While think Dignean was treated unfairly, the employer’s conduct toward him was not so outrageous or shocking as to fit this description. Aggravated damages refer to an enhanced award intended to compensate loss occasioned by some wrongful act independent of the contract. An example is where the evidence shows wilful, flagrant and extreme conduct by defendant directly causing the plaintiff to suffer serious mental distress independent of pecuniary loss. That was not the case here. For these reasons, the claim for punitive or aggravated damages cannot succeed. [20] Mr. Dignean will have his taxable costs of the proceeding including all necessary disbursements reasonably incurred.
The plaintiff was the coordinator of post-secondary education programs for White Bear First Nation, between 1990 until his termination in May 1997. The plaintiff managed post-secondary programs with an annual budget of $960,000, taught upgrading and university entrance courses, and supervised other teaching and support staff. In 1996 an education board was established and given the task of overseeing the administration of the education complex and its teaching programs. There was overlap between the plaintiff and the board's mandate and functions that led to conflict. The board suspended the plaintiff for 10 days during which time it intended to investigate the plaintiff's conduct. The suspension continued and the board later passed a resolution formally terminating the plaintiff's employment. The plaintiff sued for wrongful dismissal. The defendant contended it dismissed the plaintiff with cause. HELD: The plaintiff was wrongfully dismissed. The court ruled that the employer had to provide evidence demonstrating serious employee misconduct. There was no such evidence produced by the defendant, and it was not enough simply to show a loss of confidence in the plaintiff or dissatisfaction with his job performance. The plaintiff's damages were limited to being paid out the end of his term contract. Punitive and aggravated damages were not allowed. Although the plaintiff had been treated unfairly, the plaintiff had not shown that the employer was guilty of harsh, vindictive, reprehensible and malicious conduct.