IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Between: And Systad v. Ray-Mont Logistics Canada Inc., 2011 BCSC 1202 Roger Systad Ray-Mont Logistics Canada Inc. Date: Docket: S Registry: Vancouver Plaintiff Defendant Before: The Honourable Mr. Justice Burnyeat Reasons for Judgment from Trial Counsel for Plaintiff: Counsel for Defendant: Place and Date of Trial: Place and Date of Judgment: D.B. Gleadle L.A. Novakowski and C.J. Edstrom Vancouver, B.C. July 15 and 20, 2011 Vancouver, B.C. September 9, 2011

2 Systad v. Ray-Mont Logistics Canada Inc. Page 2 [1] This is a Summary Trial pursuant to Rule 9-7 of the Supreme Court Civil Rules in an action commenced by the Plaintiff for wrongful dismissal damages. It is agreed that the Plaintiff was not dismissed for cause. BACKGROUND [2] Mr. Systad is currently 65 years old. In January 1993, Mr. Systad began working in the logistics industry for EBN Grainco Ltd. ( Grainco ). In 2008, Grainco was taken over by Ray-Mont Logistics Canada Inc. ( Ray-Mont ). Ray-Mont confirms that it accepts that Mr. Systad had 18 years of service at the time that the employment of Mr. Systad was terminated for reasons unassociated with his performance as an employee. [3] Initially, Mr. Systad was hired as a labourer to unload railway cars carrying grain. In the mid-1990s, Mr. Systad was promoted to the position of Yard Foreman. As well as supervising the staff that worked in the yard. Mr. Systad also had some office duties. When he was Yard Foreman, he supervised about 8-10 labourers. Subsequently, Mr. Systad was given less responsibility when he was assigned the role of truck driver. [4] Over the last five years of his employment, Mr. Systad was assigned the role of driver of specialized container handling equipment. At his May 19, 2011 Discovery, Mr. Systad stated that he supervised new drivers by making sure that they learned to drive the machines properly. However, Mr. Systad also confirmed that he did not have the title of supervisor or of manager, he did not hire employees, he had no authority to discipline employees, and he did not set either the hours of work or the schedules of other employees. [5] Since September 2010, the salary of Mr. Systad was $75,380 per year ($6, monthly, $36.80 hourly). In addition, Mr. Systad had six weeks paid vacation, three days sick pay, a Defined Contribution Pension Plan which entitled him to have his contribution to a company-sponsored defined contribution pension plan matched up to $25 per week by Ray-Mont, and an Extended Benefits Plan which included Extended Health and Dental Coverage, $75,000 Accidental Death

3 Systad v. Ray-Mont Logistics Canada Inc. Page 3 and Dismemberment Coverage, $75,000 Life Insurance Coverage, and Long Term Disability Insurance Coverage. [6] In 2008, Mr. Systad began having trouble with his right knee. In September 2010, he was advised by a rehabilitation specialist that he might have to have surgery. Mr. Systad advised his immediate supervisor about this possibility. On November 29, 2010, Mr. Systad was advised that he needed full knee replacement but that he would likely have to wait 4-6 months for that surgery. Mr. Systad advised his immediate supervisor in these regards and also advised that, as soon as he learned about the date for the surgery, he would let him know. At the same time, Mr. Systad spoke to the Human Resources Manager of Ray-Mont to advise her of the need for surgery. [7] On January 18, 2011, Mr. Systad was advised that the surgery was scheduled for March 31, On January 19, 2011, Mr. Systad spoke to the Yard Foreman to advise him of the date for the surgery and also advised that the likely recovery period would be about three months so that he would probably be off work for that period of time. Mr. Systad also advised the Yard Foreman that he was having problems with his left knee and his right hip, that these problems might eventually require attention but that nothing was certain in those regards. On the same day, Mr. Systad spoke to the Human Resources Manager to ask her about income or insurance coverage while he was off work. The Human Resources Manager advised Mr. Systad that she would get back to him. The Human Resources Manager asked Mr. Systad whether he intended to come back to work after his surgery. Mr. Systad states that he said words to the effect of course, I have no plans of retiring any time soon. [8] On February 3, 2011, Mr. Systad met with Charles Raymond, the President of Ray-Mont, and Olivier Charron, the Director of Human Resources for Ray-Mont. At this meeting, Mr. Systad was advised that his employment was being terminated along with many other employees across Canada. Messrs. Charron and Raymond offered to assist Mr. Systad in searching for other employment. Specifically,

4 Systad v. Ray-Mont Logistics Canada Inc. Page 4 Mr. Charron advised that he was willing to assist Mr. Systad in updating his resumé, that Mr. Systad was free to mention his name to any prospective employer, and that he was willing to send the resumé of Mr. Systad to all of his human resources contacts throughout British Columbia. Upon hearing from Mr. Systad that he required knee surgery, Messrs. Charron and Raymond proposed negotiating an extension of the health insurance with the insurance provider so that Mr. Systad would be eligible for benefits. Subsequently, Mr. Systad did not call upon Mr. Charron for assistance in finding new employment and did not take up the offer of Ray-Mont to arrange for an extension of the health insurance available. [9] At the time of the termination of Mr. Systad s employment, Ray-Mont provided Mr. Systad with eight weeks pay in lieu of statutory notice pursuant to the obligations set out under the Employment Standards Act, R.S.B.C. 1996, c. 113 ( Act ). [10] The Notice of Civil Claim of Mr. Systad was filed on February 9, The Response to Civil Claim was filed on March 2, [11] In mid-february 2011, Mr. Systad made telephone inquiries with some potential employers but, after being advised that there was no work available, he did not follow up with those potential employers and did not forward a copy of his resumé to them. At his Discovery, Mr. Systad confirmed that he had advised potential employers that he had a knee operation scheduled and that he would not be in a position to drive a vehicle for three months after the surgery. Mr. Systad states there were forklift operator positions open, but that most forklift operators were earning about $14 per hour. Mr. Systad states that he now checks on the Internet about weekly. [12] At his Discovery, Mr. Systad confirmed that Mr. Charron was willing to assist him in updating his resumé and was prepared to provide a letter of recommendation, but that he did not take Mr. Charron up on those offers. Mr. Systad provided this explanation in that regard:

5 Systad v. Ray-Mont Logistics Canada Inc. Page 5 Well, it s very hard to you know, you are in shock. You are told that you re being fired, so how can you go to somebody that just fired you and just ask for something, you know, to get another job? Not only that, no notes you know, nothing was put down on papers of any notes or anything. I figure it s just loose talk. [13] The knee surgery took place on March 31, DISCUSSION AND CASE AUTHORITIES [14] In what is often regarded as the leading case relating to what is a reasonable notice period, McRuer, C.J.H.C., in Bardal v. Globe and Mail Ltd., [1960] 24 D.L.R. 140 (Ont. H.C.), stated: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant (at p. 145). [15] Taking into account his age, his length of service, the character of his employment as a container lift operator, the physical problems that may require surgery in the future, and the availability of similar employment at a time when he stated that the industry is in consolidation phase, Mr. Systad submits that a notice period of one month per year of service is appropriate. In this regard, Mr. Systad relies on the following decisions: (a) Ansari v. BC Hydro; Penner v. BC Hydro; Yu v. BC Hydro; and Li v. BC Hydro, all cited at (1986) 2 B.C.L.R. (2d) 33 (S.C.); (b) Kewin/Friesen v. Canadian Forest Products, [1991] B.C.J. No (S.C.); (c) McIntyre v. Rogers Cable, [1996] B.C.J. No (S.C.); (d) McLaren v. Pacific Coast Savings Credit Union, (2001) 89 B.C.L.R. (3d) 14 (C.A.); (e) Milham v. BC Transit, [1995] B.C.J. No (S.C.); (f) Webster v. British Columbia Hydro, [1992] 66 B.C.L.R. (2d) 129 (C.A.); (g) Whiting v. Boys and Girls Club of Greater Victoria, [2011] B.C.J. No. 967 (S.C.); (h) Jamieson v. Finning International Inc., [2009] B.C.J. No (S.C.); (i) Bastow v. Woodward Stores Ltd., [1992] B.C.J. No 1606 (S.C.); (j) Taylor v. CBHN Information Systems, [1996] B.C.J. No (S.C.); (k) Smith v. Pacific National Exhibition, [1991] B.C.J. No. 255 (S.C.); (l) Fraser v. Kelowna; and McAndrew v. Kelowna, both cited at [1993] B.C.J. No (S.C.); (m) Streight v.

6 Systad v. Ray-Mont Logistics Canada Inc. Page 6 Dean, [2002] B.C.J. No. 819 (S.C.); and (n) Petit v. ICBC, [1995] B.C.J. No (S.C.). [16] Ray-Mont submits that a notice period of 10 months is reasonable in the circumstances and relies on the following decisions to support that submission: (a) Sandhu v. North Star Mills Ltd., [2007] B.C.J. No (S.C.); (b) Drinkwater v. Norampac Inc., [2002] O.J. No (Ont. S.C.J.); (c) Ellsworth v. Murray Canada, [1997] O.J. No (Ont. C.J.G.D.); (d) Connolly v. Regency Import Automobiles Inc., [2003] B.C.J. No (S.C.); (e) Collins v. Jim Pattison Industries Ltd. (1995), 7 B.C.L.R. (3d) 13 (S.C.); (f) Potter v. Halliburton Group Canada Inc., [2004] B.C.J. No (S.C.). (a) Role of Character of Employment [17] Regarding the appropriate notice period, it is the submission of Ray-Mont that the concept of a one month notice period for each year of service should be reserved for those employees who s character of employment carries with it more responsibility and seniority. The submission of Mr. Systad is to the contrary. In this regard, Mr. Systad relies on the following decisions: (a) Streight v. Dean, supra; (b) Saalfeld v. Absolute Software Corporation, [2008] B.C.J. No (S.C.); (c) Jamieson v. Finning International Inc., supra; and (d) Di Tomaso v. Crown Metal Packaging Canada LP, [2011] O.J. No (Ont. C.A.). In Streight, supra, Macaulay J. stated: At one time, the length of reasonable notice seemed dependent on the character or nature of the employment. This often appeared to result in significantly longer periods for senior management employees but is no longer necessarily the case. More recent authority makes it clear that the character of the employment is not to be given undue weight. See Ansari v. British Columbia Hydro and Power Authority [supra]; Byers v. City of Prince George (Downtown Parking Commission) (1998), 53 B.C.L.R. (3d) 345; [1999] 2 W.W.R. 335 (B.C.C.A.); Bavaro v. North American Tea, Coffee & Herbs Trading Co. [2000] B.C.J. No. 536; 2000 BCSC 419, overturned on appeal but not on this point [2001] B.C.J. No. 381; 2001 BCCA 149; and Paquette v. Open Learning Agency [2000] B.C.J. No. 2360; 2000 BCSC (at para. 68) [18] In Bramble v. Medis Health and Pharmaceutical Services Inc. (1998), 175 D.L.R. (4th) 385, the trial judge had awarded the employees, who were employed

7 Systad v. Ray-Mont Logistics Canada Inc. Page 7 either as labourers or in clerical positions, damages based on periods of notice ranging from thirteen months to twenty-four months. On appeal, the employer submitted that the notice periods awarded did not reflect the menial status of the employees jobs and that longer periods of notice are traditionally reserved for senior employees. The Court of Appeal noted criticism of the role that the character of employment has been allowed to play in the determination of notice and, on behalf of the Court, Drapeau J.A. stated: Likewise, until very recently, character of employment weighed in the balance on the theory, frequently unstated, that judicial notice was to be taken of the fact that senior employees required more time to find suitable alternate employment. The data referred to by MacPherson J. in Cronk and by Griffith Roberts in Character of Employment and Wrongful Dismissal Notice: Cronk v. Canadian General Insurance Co. [Cronk v. Canadian General Insurance Co. (1994), 19 O.R. (3d) 515 (Ont. G.D.)], have placed in serious doubt the factual assumption upon which this approach rests. The proposition that junior employees have an easier time finding suitable alternate employment is no longer, if it was, a matter of common knowledge. Indeed, it is an empirically challenged proposition that cannot be confirmed by resort to sources of indisputable accuracy. Bearing in mind that reasonableness of notice is a conclusion that is largely fact-driven, I find it impossible to accept as a matter of law that character of employment simplicities is relevant in all cases, no matter what the factual record might be. Judicial notice cannot be taken of its relevance in all cases. Absent evidence showing that the character of the terminated employee s job has some relevance to the pursuit of one or more of the objectives of notice, it is irrelevant. I am reinforced in this view not only by the realization that the traditional approach mirrors antiquated social values but, as well, by the conviction that there is no compelling policy objective or stare decisis basis warranting its retention. It is now widely accepted that employment is an essential component of a person s self-worth. See Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 368, Machtinger v. HOJ Industries Ltd., [[1992] 1 S.C.R. 986], and Wallace v. United Grain Growers Ltd., [[1997] 3 S.C.R. 701], at para. 93. By treating junior employees unfavourably solely on the basis of the status of their employment, the traditional approach undermines, without any justification, their self-worth. As a result, courts have been justifiably uncomfortable with a continued adherence to the traditional view. This discomfort may go a long way in explaining why courts, despite the lip service paid to character of employment as a factor, have tended, of late, to award notice periods to junior employees that approximate those historically reserved for senior employees. Nor, in my view, is there any sound policy reason for the preservation of the traditional approach. In particular, I am satisfied that there is no sound basis

8 Systad v. Ray-Mont Logistics Canada Inc. Page 8 for the suggestion that the marginally higher termination costs that will result from longer notice periods for junior employees will have adverse repercussions on our economy. See the discussion in [Innis Christie, Geoffrey England and Brent Cotter, Employment Law in Canada, 2d ed. (Toronto: Butterworths, 1993)], at Typically, the notice periods set by the courts of this province for senior employees have been somewhat lower than those set by courts in other jurisdictions. The reported cases where a senior employee has been found to be entitled to more than 20 months notice are few and far between in this province. The record in this jurisdiction stands in sharp contrast to the situation elsewhere, particularly in Ontario, where damage awards to senior employees commonly reflect notice periods exceeding 20 months notice. As a result, I do not accept that it would be reasonable or appropriate to eliminate the inequality in notice periods between senior and junior employees by lowering the notice periods to which the former are entitled down to the level traditionally reserved for the latter. Finally, I am satisfied that stare decisis does not compel retention of the traditional approach. First, as noted earlier, there is no longer any juristic basis for the application, as a matter of law, of character of employment simpliciter as a determining factor. Second, the ethics of its application is very much questionable. Third, neither the Supreme Court nor this Court has had occasion to squarely address the question so that neither has, to this date, explicitly ruled that junior employees are, by the mere fact of the status of their employment in the employer s hierarchy, entitled to less notice than senior employees. In summary, judicial notice cannot be taken of the impact of the character of the terminated employee s job on his or her quest for suitable alternate employment. Moreover, the traditional approach, to the extent that it includes a consideration of character of employment simpliciter, is antithetical to the law s ultimate goal, namely egalitarian justice, and its application is not compelled by any authority binding on this Court. In my view, it behoves this Court to discard character of employment simpliciter as a relevant factor. (at paras ) [19] There is no evidence to suggest that an employee with the responsibilities of Mr. Systad will have an easier time finding suitable alternate employment than an employee having more senior duties. I am satisfied that there are very few situations where the character of employment will be of paramount relevancy in the consideration of the appropriate notice period to be ordered. I adopt the statements that giving undue attention to the character of employment represents antiquated social values and is antithetical to the law s ultimate goal, namely egalitarian justice. Character of employment is merely another matter which I take into account along with the other factors set out in Bardal, supra.

9 Systad v. Ray-Mont Logistics Canada Inc. Page 9 (b) Is the Statutory Notice Period Enough? [20] Ray-Mont also submits that the statutory notice provided under the Act is appropriate for reasonable notice in the circumstance. In this regard, Ray-Mont relies on the decision in Pelech v. Hyundai Auto Canada Inc. (1991), 63 B.C.L.R. (2d) 24 (C.A.), where Southin J.A. on behalf of the Court stated: The plaintiff was, as counsel for the defendant points out, engaged in an occupation for which no special education is required, that is to say, it is sufficient if the employee can read and write and is physically able to do the work. She described it as a generic occupation. The term is new to me. I would simply call it unskilled work although the remuneration was more than the minimum wage. If at the outset of his employment, the employer had been asked what notice must you give if you terminate him, I should think that the answer would have been whatever the law requires. If the employee had been asked what notice must you give if you want to leave, he would be surprised to have been told he needed to give more than a week or two. During the period that Mr. Pelech was employed by the defendant there was not, as I understand it, any change in his job. He was not promoted. Thus, this is not a question as we often have of an employee who has worked for a number of years and has received a series of promotions leading to more and more responsible positions. In my opinion, the notice required by the statute in a case such as this is reasonable notice. Accordingly, I would allow the appeal and dismiss the action. (at pp ) [21] It is the submission of Ray-Mont that this principle also applies to long-serving employees and that movement or promotion between positions not requiring special education does not render this principle invalid: Sullivan v. Victoria Golf Club, [1994] B.C.J. No (S.C.). [22] Mr. Systad submits that the decision in Pelech has been expressly distinguished: (a) in Dahdouh v. Hugin Sweda Inc., [1993] B.C.J. No. 32 (S.C.), where Scarth J. noted that the plaintiff in Pelech was in his early twenties and performed unskilled work; (b) in Byers v. Prince George (City of), [1996] (B.C.J. No (S.C.); overruled on other grounds (1998), 53 B.C.L.R. (3d) 345 (C.A.), where Meiklem J. noted that the plaintiff in his case was 55 and had approximately 5-1/2 years in excess of the period of employment that would entitle and employee to the maximum of eight weeks notice provided under the Act; (c) in Streight v.

10 Systad v. Ray-Mont Logistics Canada Inc. Page 10 Dean, [2002] B.C.J. No. 819 (S.C.), where Maccaulay J. noted that the plaintiff was 45 years old with 20 years of service; and (d) in Bru v. AGM Enterprises Inc., [2008] B.C.J. No (S.C.), where N. Brown J. noted that his plaintiff was 59, and her work was beyond entry level work. [23] Mr. Systad has approximately ten years in excess of the period of employment that would entitle him to a maximum of eight weeks notice provided under the Act. At the same time, the employment of Mr. Systad was not that of a young, low-service employee with an entry level job. Mr. Systad was paid over $75,000 for his efforts, his hourly rate of approximately $36.80 far exceeded that of forklift drivers who he says earn $14 per hour, and he was entitled to eight weeks paid vacation. As well, Mr. Systad trained less experienced drivers and he had been asked by the Terminal Manager to supervise other employees when the Terminal Manager was absent. [24] The decision in Pelech, supra, is clearly distinguishable. Based on his age, his responsibilities, and his compensation, he could not be described as a young entry-level employee. I reject the submission of Ray-Mont that the statutory notice provisions under the Act are appropriate in this case. It will be a rare case where someone of this age, compensation, years on the job, and duties will only be entitled to the compensation provisions set out under the Act. This is not such a case. While Mr. Systad had few remaining supervisory functions, he nevertheless was being paid commensurate with considerable responsibilities. [25] Mr. Systad is 65 years-old and, while provincial legislation has been changed so that age 65 is no longer the date for mandatory retirement, I am satisfied that it will nevertheless be difficult for Mr. Systad to find employment in competition with a younger applicants for employment. I also take into account that his recent operation and the possibility that he will require further operations will make it more difficult for him to compete in finding comparable employment. As well, the availability of similar employment having regard to his experience, training and qualifications may not be available and he may be required to settle for jobs having

11 Systad v. Ray-Mont Logistics Canada Inc. Page 11 considerable less remuneration. The possibility that he may require further surgery may well make him less desirable as a potential employee. Taking into account all of the factors set out in Bardal, supra, I am satisfied that the reasonable notice period is 18 months. (c) What should be the Contingency Factor? [26] Ray-Mont submits that a contingency factor should be built into any award for reasonable notice to recognize the possibility that Mr. Systad will obtain employment within the notice period: Smith v. Pacific National Exhibition, [1991] B.C.J. No. 255 (S.C.); Foster v. Kockums Cancar Division Hawker Siddeley Canada Inc., [1993] 83 B.C.L.R. (2d) 207 (C.A.); Earl v. Canada Bread Co., [2007] B.C.J. No (S.C.). [27] Taking into account the notice period of 18 months, the age of Mr. Systad, the number of years of his service, the type of work that he was undertaking, the possibility that his experience as a Container Lift Operator is specialized so that his skills and abilities are not readily transferable to other areas of employment, the level of responsibility, his efforts to date to find employment, and the information before the Court that his future employment may well be limited to employment at $14 per hour and not the $36.80 hourly wage that he was earning, I am satisfied that some contingency should be in place to reflect the possibility that Mr. Systad will find employment in the 12-1/2 months subsequent to this summary trial. [28] Ray-Mont submits that the period of reasonable notice should be reduced by two months. There is very little information available regarding available employment given the skills of Mr. Systad. What is available allows me to conclude that what may be available will pay Mr. Systad less than 40% of what he was earning with Ray-Mont. In the circumstances, I provide a contingency equivalent to two weeks of his former salary. This contingency reflects the possibility of finding future employment but at a greatly reduced hourly wage. If I had any confidence in predicting that Mr. Systad would find employment at the salary he was receiving, I would have assessed the contingency factor at six weeks.

12 Systad v. Ray-Mont Logistics Canada Inc. Page 12 (d) Has Mr. Systad Failed to Mitigate his Damages? [29] A further question which Ray-Mont raises is whether Mr. Systad failed to mitigate his damages. In Koos v. A&A Contract Customs Broker Ltd., [2009] B.C.J. No. 857, Rice J. set out the nature of this obligation as follows: The plaintiff has an obligation to mitigate her loss, that is, to take such steps as a reasonable person in the plaintiff s position would take in her own interest to maintain her income and her position in her industry, trade or profession: see Smith v. Aker Kvaerner Canada Inc., 2005 BCSC 117, at para. 31. The onus is on the defendant to prove that the plaintiff has failed to mitigate or failed to take reasonable steps to mitigate. The defendant must show not only that the plaintiff failed to take steps to mitigate but also that had the plaintiff taken those steps she could likely have found equivalent employment: see Jorgenson v. Jack Cewe Ltd. (1978), 93 D.L.R. (3d) 464, 9 B.C.L.R. 292 at 296 (C.A.), aff d [1980] 1 S.C.R. 812, 111 D.L.R. (3d) 577. (at para. 35) [30] There was no evidence that, with diligent effort, Mr. Systad could have already secured alternative employment. Mr. Systad is only now able to work, having just recently recovered from his knee surgery. I think it highly unlikely that Mr. Systad would have been in a position to compete with those who could have started employment immediately when he would have not have been in a position to return to work until he has sufficiently recovered from his knee operation and until he could drive a vehicle again not only to get to work but to operate comparable equipment in any new employment. [31] Regard must be made to his physical and mental condition: Pereira v. Business Depot (c.o.b. Staples Business Depot), [2009] B.C.J. No (S.C.) at para It is also appropriate to take into account the reasonable period of time to get over the shock of having his employment terminated: Smith v. Aker Cavaner Canada Inc. [2005] B.C.J. No. 150 (S.C.) where the following statement was made:...i am satisfied that it is not necessarily a failure to mitigate where a finding could be made that a plaintiff has not immediately commenced a job search. I am satisfied that any employee should be given a reasonable period of time of having their employment terminated, to organize their thoughts as to how best to go about obtaining new employment, and to undertake the necessary research and preparation of resumes so that they are in a position to compete for available positions. (at para. 35)

13 Systad v. Ray-Mont Logistics Canada Inc. Page 13 [32] After his employment was terminated, Mr. Systad made only minimal efforts to find employment. As well, he did not take up the offer made to assist him in finding employment. When I combine the initial period of shock with the immobility caused by the necessary operation on his right knee, I conclude that Ray-Mont has failed to meet the onus of showing that Mr. Systad has failed to mitigate his damages. In this regard, I also take into account that reasonable mitigation efforts must take into account not only his current knee operation but the possibility that he will require further operations. FURTHER DISPUTES BETWEEN THE PARTIES [33] There are a number of other disputes between Mr. Systad and Ray-Mont relating to the termination of his employment. (a) Deduction for Employment Insurance and CPP [34] Mr. Systad received payment in respect of the minimum eight weeks required by the Act. While Ray-Mont is entitled to a credit for the sums Mr. Systad has received by way of the payment made under the Act ($11,596.80), Mr. Systad claims that Ray-Mont improperly deducted excessive CPP and EI amounts from the final sum that he received. Mr. Systad submits that, while deductions for CPP and EI should have been made for the 32 hours of actual employment, deductions should not have been made for the 320 hours representing payments pursuant to the Act. In this regard, Mr. Systad relies on the decision in Jack Cewe Ltd. v. Jorgenson, [1980] 1 S.C.R Mr. Systad submits that the deduction for CPP was $ and for EI was $ (for a total of $855.18). Mr. Systad submits that deductions should only have been made for his service prior to termination so that the inappropriate deduction was $758, representing 32/352 or 9% of the $ deducted. Accordingly, Mr. Systad submits that the credit available to Ray-Mont for the eight week payment made under the Act should be $10, and not $11, [35] I am satisfied that the principles set out in Jack Cewe, supra, apply and that it was inappropriate for Ray-Mont to include the deduction of $758 in the deduction

14 Systad v. Ray-Mont Logistics Canada Inc. Page 14 that was made from the amount paid to Mr. Systad. In Jack Cewe, supra, Pigeon J. on behalf of the Court, stated that the payment of unemployment insurance contributions was an obligation incurred by reason of the employment of the respondent, and could not be deducted from damages for wrongful dismissal. Accordingly, I assess the credit amount available to Ray-Mont at $10, (b) Vacation Pay [36] At the time of his dismissal, Mr. Systad had accrued 2.5 days of vacation entitlement and, at an annual pay rate of $75,380 per year, he claims $ for vacation pay. It is the submission of Ray-Mont that Mr. Systad incorrectly received $1, in vacation pay on the basis that Mr. Systad entered into an agreement whereby he would not be entitled to receive vacation pay in addition to paid vacation, whereas prior to the agreement, he accrued vacation pay in addition to paid vacation. Ray-Mont seeks to be entitled to deduct the sum of $1, from any award made for reasonable notice. [37] I am not satisfied that there is sufficient evidence to support the position taken at Trial by Ray-Mont and, accordingly, I award Mr. Systad $ for the vacation pay to which he was entitled. (c) Deduction for OAP [38] I am satisfied that there should be no deduction from the amount payable by Ray-Mont for any OAP payments received. Mr. Systad was statutorily entitled to apply for and receive OAP payments at age 65. There is no evidence of any limitation on receiving such benefits even though a person is working and, accordingly, I see no reason why Mr. Systad should not recover wrongful dismissal damages for a period during which he also collects OAP benefits. (d) Non-Vested Pension Contributions [39] Under the Pension Plan in effect as at August 7, 2009, Mr. Systad was required to contribute an amount of between $10 and $25 each week and Ray-Mont was required to contribute an amount equal to the contribution made by Mr. Systad,

15 Systad v. Ray-Mont Logistics Canada Inc. Page 15 but only to a maximum of $25 a week. Mr. Systad had paid the maximum amount under the Plan, being $2, at the time of the termination of his employment. [40] Under the paragraph 1 of the Plan ( Interpretation ), the term Forfeited Amount is defined as meaning:... the portion, if any, of a Member s account which arose from the Employer s contribution that the Member would not be entitled to receive upon termination of employment or death. Paragraph 9 of the Plan provided ( Termination of Employment ): A Member whose employment with the Employer ceases for any reason other than retirement or death will be deemed to have terminated employment for purposes of the Plan. (a) Before the completion of two years of continuous membership. If a member terminates employment before the completion of two years of Continuous membership, the Member will be entitled to receive a cash refund equal to the value of the Member s account which arose from the Member s contributions only. [41] Mr. Systad was enrolled under the Plan on August 7, Therefore his employment was terminated prior to two years of continuous membership. However, Mr. Systad seeks $2, from Ray-Mont to match the amounts that he contributed under the Plan as well as $25 per week during any notice period ordered by the Court. [42] The terms of the Plan are clear. I am satisfied that Mr. Systad is bound by the contract that he entered into when he became a member of the Plan. When his employment was terminated, he was only entitled to receive a cash refund equal to the value of what was in his account which arose from the Member s contributions only [emphasis added]. Mr. Systad submits that he is entitled to be treated as if he were an employee throughout the notice period: Gillies v. Goldman Sachs Canada Inc. (2001), 95 B.C.L.R. (3d) 260 (C.A.); Nygard International Ltd. v. Robinson (1990), 46 B.C.L.R. (2d) 103 (C.A.); and Saalfeld, supra. Mr. Systad submits that, in the absence of clear language to the contrary, the parties must be taken to have intended that an unlawful termination of his employment would not trigger the end of his entitlement.

16 Systad v. Ray-Mont Logistics Canada Inc. Page 16 [43] Mr. Systad submits that his employment could have been terminated lawfully, either by giving reasonable working notice or by payment of salary in lieu of reasonable notice so that he should have had the ability to continue to make contributions to the Plan and that Ray-Mont should have been obligated to match the contributions that he would have made. [44] There is no doubt that the parties could agree to a contract that would deprive a dismissed employee of matching contributions during a period of notice, even if the dismissal was wrongful. I find that the parties did make such an agreement in this case upon proper construction of the Plan and its provisions. The Plan was a separate contract between Mr. Systad and Ray-Mont. What is available to Mr. Systad upon the termination of his employment is defined under the Plan. [45] As well, under paragraph 4(d) of the Plan, Ray-Mont was required to contribute to the Plan...an amount equal to the Member s required contribution for each Member for each full or partial year of membership in the Plan. From and after the date of the termination of his employment, Mr. Systad was no longer in a position to contribute to the Plan. Accordingly, any obligation on Ray-Mont to make matching contributions came to an end. [46] Ray-Mont will not breach its separate contract with Mr. Systad if it does not pay to him the $2, which represents the lost employer contributions which need not be provided by Ray-Mont to Mr. Systad. At the same time, I am satisfied that Mr. Systad is not entitled to an amount equivalent to $25 per week during the notice period of 18 months that I have ordered. (e) Medical/Dental Coverage [47] Mr. Systad did not replace the coverage he had while he was working for Ray-Mont and Mr. Systad does not advance a claim for amounts paid to replace benefits. Since the termination of his employment, he has incurred the following expenses: (a) Expenses Relating to his knee surgery: i. March 28, 2011 Total Living Care $29.50 for an icing device; ii. April 2, 2011 Shoppers Drug

17 Systad v. Ray-Mont Logistics Canada Inc. Page 17 Mart $32.51 for oxycodone, pain medication; iii. April 2, 2011 Shoppers Drug Mart $25.96 for pain medication; iv. April 2, 2011 Shoppers Drug Mart $ for blood thinner medication required post-surgery; v. May 4, 2011 London Drugs - $15.58 for Tylenol 3, pain medication; vi. May 24, 2011 The Foam Shop $ for special foam pads; vii. May 31, 2011 Shoppers Drug Mart $30.42 for oxycodone, pain medication; viii. June 2, 2011 London Drug $17.73 for zopiclone (sleeping pills) prescription; and ix. June 5, 2011 Watermania Sports Therapy $50 for massage therapy visit. (b) $1, for dental work (related to a root canal). [48] Mr. Systad would have been reimbursed for 80% of the total incurred ($1,716.81) so that he now seeks $1, He also seeks to recover as damages 80% of what he anticipates he will be spending during the notice period granted by the Court. Since the time of his dismissal, Mr. Systad has spent $143 on average each month and therefore seeks $143 per month after June, 2011 to the end of the notice period. [49] Ray-Mont submits that any recovery should be limited as the benefits plan provided that only 80% of drug expenses and dental services would be reimbursed, and that the maximum benefit an insured person could recover for dental work was $1,000 per year. As well, Ray-Mont submits that an employee is not entitled to lost benefits where steps have not been taken to mitigate the loss of those benefits: E.E. v. E.R., [1997] B.C.J. No (S.C.). [50] There was no evidence that Extended Health and Dental Coverage as was available at Ray-Mont was otherwise available to Mr. Systad; only that Messrs. Charron and Raymond proposed to negotiate an extension of the health insurance with the insurance provider. I cannot conclude that Ray-Mont has met the onus of showing that Mr. Systad has failed to mitigate his damages by replacing the medical and dental coverage that he had while employed with Ray-Mont. Accordingly, I award Mr. Systad $1,079.45, being 80% of $ incurred relating to surgery on his knee, plus 80% of the $1,000 maximum dental work recoverable. [51] Regarding the $143 per month on average Mr. Systad also seeks, I cannot accede to that submission. The $143 average over the months since the termination

18 Systad v. Ray-Mont Logistics Canada Inc. Page 18 of his employment has been increased substantially by the expenses that relate only to his knee surgery. The average expenses incurred by Mr. Systad during his employment were not in evidence. It is not possible to ascertain the likely medical expenses that will be incurred after June, 2011 during the remainder of the notice period that I have ordered. Mr. Systad is entitled to recovery of his medical and dental expenses during the notice period but only to the extent that he would have been reimbursed for those expenses if he had remained employed. Taking into account the possibility that he will obtain alternate Extended Health and Dental Coverage and that his medical expenses will be considerably less because he has recovered from his knee surgery, I award Mr. Systad $250, representing the medical and dental expenditures that Ray-Mont would have reimbursed had Mr. Systad remained employed. (f) Withholding of Employment Insurance Benefits [52] Mr. Systad has received Employment Insurance Benefits. Ray-Mont submits that it is required to deduct from any earnings, including damages for wrongful dismissal, and remit to the Receiver General the amount of any Employment Insurance benefits Mr. Systad has received for the period covered by notice or severance. Ray-Mont submits that the language currently in force makes it clear that it must deduct and remit to the Receiver General the amount of any Employment Insurance benefits received by the Plaintiff for the period covered by the notice, and that any award for reasonable notice must provide for such deduction. [53] Mr. Systad acknowledges that he has an obligation to repay any Employment Insurance benefits that he receives during the 17-1/2 month period which is ordered. As I am satisfied that suitable undertakings can be exchanged between counsel when the amount ordered is paid by Ray-Mont, I will make no order as is requested by Ray-Mont. SUMMARY [54] Mr. Systad will be entitled to the following:

19 Systad v. Ray-Mont Logistics Canada Inc. Page 19 (a) (b) (c) (d) (e) a total of 18 months salary in lieu of appropriate notice, with the following to be subtracted from that amount: (i) eight weeks pay in lieu of statutory notice pursuant to the provisions of the Employment Standards Act; and (ii) the equivalent of two weeks salary to apply a contingency factor that Mr. Systad will find employment during the 18 months after the February 3, 2011 date when his employment with Ray-Mont was terminated; $758, being the deduction for Employment Insurance and CPP that should not have been made when the eight-week payment was made to Mr. Systad under the Employment Standards Act; $ for the vacation pay to which Mr. Systad is entitled; $1, to reimburse him for the medical and dental expenses that he incurred up to the date of the Trial; and $250 representing an estimation of the future medical and dental expenditures that will be incurred by Mr. Systad during the remainder of the notice period. [55] The parties will be at liberty to speak to the question of costs if the provisions of Rule 9 of the Supreme Court Civil Rules apply. Otherwise, the Plaintiff will be entitled to his costs on a Party and Party (Scale B) basis. Burnyeat J. Mr. Justice Burnyeat