J. Q.B.G. A.D. 1998 No. 1900 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: SHIRLEY SCARLETT and REGINA METAL INDUSTRIES LTD. DEFENDANT Shelley L. Joyce for the plaintiff Daniel S. Tapp for the defendant JUDGMENT MacLEOD J. October 13, 1999 [1] The plaintiff’s action is for wrongful dismissal or, stating it more correctly, for damages for dismissal from her employment without adequate notice. The action was under the simplified procedure in Part Forty of The Queen’s Bench Rules. At trial, the affidavits-in-chief of the plaintiff’s witnesses were marked as plaintiff exhibits and the witnesses were then called for cross-examination by the defendant, followed by redirect questions from plaintiff’s counsel. At the conclusion of the plaintiff’s evidence the affidavits-in-chief of the defendant’s witnesses were marked as defence exhibits, whereupon the witnesses were called for cross-examination and redirect examination. [2] The allegations in an affidavit may be accepted by the Court unless contradicted by other affidavit evidence in which event it is difficult, if not impossible, for the Court to decide any fact solely on the basis of contradictory affidavits. The cross-examination is therefore critical to the assessment of credibility. The cross-examination of the plaintiff took nearly two hours, exceeding the time suggested in the Practice Directive, but such extensive cross-examination seemed necessary to deal with the many issues raised by the plaintiff. The Court took note of this and recognized that equal latitude may be required in the plaintiff’s cross-examination of the defendant’s witnesses. [3] The plaintiff had been employed by Saxby Welding and Machine Shop for some 23 years and had become the office manager, bookkeeper and, generally, the key office person. Her role included decision making, especially in matters relating to the accounts. [4] Leslie Crompton is president of the defendant company and his wife, Carroll Crompton, is director. They and the company are referred to interchangeably as “defendant”. Crompton operated business in the Saxby Welding premises for number of months before the defendant purchased the business. It was transferred to the defendant as of October 1, 1997. [5] Some, if not all, of the employees at that date continued as employees with the new owner. The plaintiff carried on her duties in much the same way as she had done previously. These ways were not fully known to the new owners. The Cromptons made inquiries of the plaintiff which may have been disconcerting to her. For time the defendant operated from the Saxby Welding books before the defendant’s own set of books were put into use. [6] In the Saxby Welding operation the plaintiff seems to have been permitted good deal of latitude. The Saxby practice allowed employees to charge personal expenses to the company and the amount thereof was deducted from the employee’s salary. These were to be reasonable amounts but the authorization responsibility fell mainly to the plaintiff, with occasional consultation with Gary Saxby. The Cromptons are now fully aware of this process and they object, especially, to an amount charged by Irene Kwiatkowsky for repairs which were originally authorized during the Saxby ownership but were completed and in end paid on October 15, 1997 which is, of course, after the date of the sale to the defendant. [7] The plaintiff appears to be clever person but not necessarily flexible in her acceptance of the new owners. She, having established secure and key pattern of work with the Saxby Welding operation, was, perhaps understandably, not fully receptive to the new owners and their methods. accept that the sale of business is likely to be, and was in this case, not wholly welcome to the employees such as the plaintiff who had established rewarding and satisfying niche in the former operation. By February, 1998, the plaintiff requested that she be relieved of her duties as office manager. In this, she was accommodated. Her termination of employment, therefore, relates to her reduced position as bookkeeper only. [8] I am satisfied that the plaintiff’s employment as bookkeeper by the defendant was for an indefinite period of time. [9] It is unnecessary to review the many details of discord that developed. It is sufficient to note that the plaintiff gave examples of what she refers to as the hostile atmosphere in which she worked. The plaintiff was crisp witness and precise, and appeared to be rather fixed in her ways. Generally accept her testimony. accept generally too, the evidence of the Cromptons. conclude that they could not be described as hard-nosed business people. They found themselves frustrated in dealing with the plaintiff. Near the end, the parties were mainly not speaking to each other. Each side had resorted to tape recorders for important matters. Such relationship is doomed to eventual, if not early, termination. The parties discussed her termination but nothing was settled. On March 24, 1998, the plaintiff was presented with memorandum which provided she work until April 30, 1998 and recover pay to May 19, 1998. She declined to sign the memorandum. [10] She was then presented with memorandum in which she was to work until April 9, 1998 and be paid to May 19, 1998. This too she did not sign. [11] She was then given note dated April 2, 1998 as follows: Re: Termination Notice Our File: 340.001 As you are aware, management has numerous concerns with your job performance which will be addressed by way of separate meeting and formal written warning. In the meantime, please take notice that your employment will be terminated effective March 31, 1999. If your job performance does not improve, your employment will be terminated much sooner that [sic] March 31, 1999. [12] On April 3, 1998, she was given written warning listing grievances of the employer. The memorandum concluded in these words: “We are prepared to give you reasonable opportunity to rectify these problems, failing which, your position will be terminated.” [13] The parties each had string of complaints against the other. It is not useful to examine them in detail. In all instances the complaints arose from relationship that was cool and doomed to termination: confident employee set in the ways of her previous employment and frustrated employer who had ample time before purchasing the business to assess the prospects of success of her continuing employment. [14] Following the written warning, the plaintiff took stress leave and produced note to that effect from her physician. She returned to work on May 15, 1998. new office manager, Susan Weinberger, had been engaged. Weinberger was obliged to learn the position. Computers had been introduced. The plaintiff and Leslie Crompton were not communicating. Weinberger was left with the main duty of presenting the plaintiff with “light duties” because the plaintiff had recently returned from stress leave. [15] The results were not very satisfactory to anyone, especially the plaintiff. She asked for an office chair, but none was provided. She asked for basic supplies, including calculator, but none were provided. Her listing of the work done and the time spent doing nothing, as taken from her affidavit, are as follows: 63. THAT Carroll Crompton instructed me to take an inventory of all office supplies, list them, wash off the shelves and reorganize the supplies in the cabinet.... This took me from approximately 8:15 a.m. to 9:30 a.m. From 9:30 a.m. to 2:50 p.m. on May 15, 1998, sat in chair and was given no tasks to do. No one spoke to me during that period of time. 64. THAT at 2:50 p.m. on May 15, 1998, Susan Weinberger took me up to the lunch room and told me to wash the dishes and wipe down the tables, and was instructed to take the garbage out of the can and someone else would carry it out to the dumpster. This work lasted until 3:10 p.m. From 3:10 p.m. to 4:30 p.m., the end of my work day, once again sat in chair receiving no instructions and with no one speaking to me. ... Monday, May 19, 1998 was Victoria Day .... On Tuesday, May 19, 1998, began work at 8:00 a.m. as usual. asked Ms. Weinberger what could do. She said that she would have to ask Gary Saxby. Gary Saxby in turn passed me on to an employee with the Business, George Radutu, who asked me to file IPSCO drawings in envelopes. That duty was completed by 9:10 a.m. 66. THAT at 9:10 a.m. asked Ms. Weinberger what else could do. She told me to take an inventory of our front counters. advised her that all there was in there was garbage. She instructed me to sort it out, and carry George Saxby’s items upstairs. She said what while was taking inventory might as well take the pail and wash down the shelves and counter.... This task took me until 10:00 a.m. 67. THAT from 10:00 a.m. to 12:00 p.m. sat in chair with no duties being given to me and with no one speaking to me. 68. THAT at 12:30 p.m. Ms. Weinberger told me to wash the cupboards, fridge and microwaves in the lunch room. This task took me until 1:30 p.m. From 1:30 p.m. to 4:30 p.m. sat in chair without receiving any tasks and no one speaking to me. 69. THAT on Wednesday, May 20, 1998, from 8:00 a.m. to 2:00 p.m. was instructed to document all time from work orders written from October 1, 1997 to April 22, 1998.... This task was not something that had been required to do on regular basis and was not part of my normal work duties. At 2:00 p.m. Irene Kwiatkowski, office assistant, gave me three invoices to write up, which took total of 15 minutes. From approximately 2:15 p.m. to 4:30 p.m. sat in chair with no one speaking to me and no one giving me any tasks to perform. 70. THAT on or about May 20, 1998, when asked Irene Kwiatkowski about what tasks could perform, she did ask me to price some work orders. However, said that did not know whether was still allowed to do that. She went and asked Leslie Crompton if was allowed to price out the orders. After she came back into the office area Mr. Crompton followed her in and said “what you asked me, Irene, don’t think so.” When Mr. Crompton left asked Irene what that was about, and she said that he was telling her that should not price out work orders. 71. THAT on Thursday, May 21, 1998, again specifically asked Susan Weinberger what jobs she had for me to do and she advised me she had nothing for me to do at the moment. She said as soon as she had something for me to do she would let me know. From 8:00 a.m. to 4:30 p.m. sat in my chair with no one speaking to me and without receiving any tasks to do. 72. THAT on Friday, May 22, 1998, again began work at 8:00 a.m. typed out one price quote for George Radutu which took 10 minutes. From 8:10 a.m. to 8:45 a.m. sat in my chair without anyone speaking to me and without receiving any tasks. From 8:45 a.m. to 8:50 a.m. wrote up three invoices. 73. THAT from 8:50 a.m. to 10:00 a.m. sat in my chair with no one speaking to me and with receiving no tasks to do. From 10:00 a.m. to 10:30 a.m. was asked to add year to date figures on payroll cards for gross wages, holiday pay and sick pay, as required by the accountant for computer update. also wrote six invoices. 74. THAT from 10:30 a.m. to 11:30 a.m. sat in my chair with no one speaking to me and receiving no tasks to do. From 11:30 a.m. to 11:45 a.m. detailed three petty cash vouchers. 75. THAT from 12:30 p.m. to 3:20 p.m. sat in my chair with no one speaking to me and receiving no tasks to do. At 3:20 p.m. was asked to stamp eleven letters and was also asked to walk to Car Tops and deliver an invoice. From 3:30 p.m. to 4:05 p.m. sat in my chair with nothing to do and no one speaking to me. 76. THAT at 4:05 p.m. expensed one petty cash voucher, and for the remainder of the day, until was off work at 4:30 p.m., sat in my chair with nothing to do and with no one speaking to me. [16] The conduct to which she refers may be viewed as constructive dismissal and was accepted as such by the plaintiff by letter on May 25, 1998. But her employment had already been terminated by notice of nearly a year. [17] The employer is entitled to the benefit of the services of its employee during the period of notice but acts of the employer which constitute constructive dismissal entitle the employee to withdraw her services without reduction of the period of notice. [18] The plaintiff therefore remains entitled to notice to March 31, 1999, at her salary at the time of termination including the medical expenses which would have been covered during that period under the medical plan of the defendant, but without including bonuses or extra payments for sick pay. [19] Although the defendant had numerous complaints about the plaintiff she was not dismissed for cause. The defendant has not established that the plaintiff ought to have done more to mitigate her loss. In my view, the relationship fell apart with the usual bad feelings all around but there is no basis for punitive damages against the defendants nor are there circumstances which justify an extension of the period of notice. [20] From the amount payable will be deducted the net mitigation of her loss. The plaintiff’s affidavit refers to payments made to her “to date”. am unable to guess at the amount earned during the period of notice. therefore direct that the net earnings from May 25, 1998 to March 31, 1999, after deducting the cost which is hereby fixed at $50.00 of qualifying for such employment, be deducted. If the parties do not agree on the amount thereof the matter may be referred to me. [21] The plaintiff will be entitled to interest in accordance with The Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2. [22] The theory of notice is that at the end of the period the employment insurance benefits will remain unimpaired. The defendant can therefore make no deduction for any such insurance payments made to the plaintiff. [23] There is to be deducted the amounts which are owing by the plaintiff to the defendant. This does not include the Saxby account which predated the transfer of the business to the defendant. accept that this is matter between the plaintiff and Saxby. [24] There will be judgment accordingly, with costs. Fees will be taxed on column 2. The plaintiff shall deliver copy of the calculation of the judgment. Either party may issue judgment with the consent as to form and content of the other. Failing consent, the matter may be referred to me, if necessary, by application for further directions. [25] The Court draws the attention of the parties to ss. 45 and 46 of the Employment Insurance Act, S.C. 1996, c. 23.
The plaintiff who had been employed by the defendant's predecessor for 23 years as office manager and bookkeeper until 1997, brought an action for damages against her new employers for dismissal without adequate notice. The plaintiff took stress leave and requested to be relieved of her duties as office manager in 1998. The action proceeded under the simplified procedure in Part Forty of the Queen's Bench Rules. HELD: 1)The conduct amounted to constructive dismissal entitling her to withdraw services without a reduction in the notice period. Although the defendant had numerous complaints the plaintiff was not dismissed for cause. Her termination of employment related only to her reduced position as bookkeeper which was for an indefinite period of time. Her employment had already been terminated by notice of nearly a year. She remained entitled to notice to March 31, 1999 at her salary at the time of termination and to medical expenses that would have been covered but without bonuses or extra payments for sick pay. 2)The defendant did not establish the plaintiff ought to have done more to mitigate her loss. There was no basis for punitive damages nor for an extension of the period of notice.  3)The net earnings between May 1998 and March 1999 were deducted after deducting $50 for the cost of qualifying for that employment. Amounts owing by the plaintiff to the defendant were to be deducted. 4)The plaintiff was entitled to interest in accordance with the Pre-judgment Interest Act. 5)The defendant could make no deduction for insurance benefit payments. Sections 45 and 46 of the Employment Insurance Act was drawn to their attention. 6)The plaintiff was awarded costs. Fees were to be taxed on column 2. 7)The plaintiff was to deliver a copy of the calculation of the judgment. Either could issue judgment with the other's consent as to form and content. An application for further directions could be made.