In Chu v China Southern Airlines ( 2023 BCSC 21) Justice Verhoeven awarded 20 months notice to a Marketing and Business Development Manager who had 8 + years service.
However the interesting part of this case is that the judge also awarded $50,000 damages for the breach of the duty of good faith in relation to the actions of the employer surrounding the termination and an additional $100,000 punitive damages for the litigation conduct of the Defendant.
Regarding the bad faith damages the Court listed these reasons
[149] I summarize the particulars of the employer’s breach as follows:
1. The plaintiff’s dismissal on February 1, 2019, was the culmination of a process commencing in January 2018 with the replacement of CSA’s former GM with its new GM, Ms. Zhang. The new GM and the former GM were very hostile to each other. It seems clear that the new GM, Ms. Zhang, associated the plaintiff with the former GM. As of February 2018, the employer, acting through Ms. Zhang, secretly wanted and intended to terminate the plaintiff’s employment. It sought to do so without giving reasonable notice or paying severance in lieu thereof. The employer could have simply informed the plaintiff that changes to its management structure meant that his position was redundant. It could have terminated the plaintiff’s employment at that time. Instead, the employer was duplicitous and unfair in its dealings with the plaintiff. It demoted the plaintiff to entry-level, front-line services positions, substantially reduced his pay, and began taking steps to manufacture cause for dismissal or to induce the plaintiff to resign.
2. To that end, the plaintiff was unfairly disciplined and threatened with termination on multiple occasions. The employer began unfairly criticizing the plaintiff’s work, inventing failings, and creating an unfair, self-serving and inaccurate disciplinary record, in support of eventual allegations of cause for dismissal. The plaintiff previously had an impeccable record of service.
3. The unfair discipline was carried out in humiliating and embarrassing ways, including public reprimands, yelling at the plaintiff, on one occasion throwing an item at him (the computer mouse), and requiring him to attend meetings where his faults and failures were enumerated.
4. The plaintiff was compelled to sign letters of reprimand that he did not agree with—specifically, a letter dated February 22, 2018, and another undated letter that followed.
5. Given his age, experience, and former position as Marketing and Business Development Manager, the plaintiff’s reassignments without consultation to entry-level positions in the customer service and airport station positions were humiliating.
6. The plaintiff was assigned to work at the airport terminal when the employer knew or ought to have known he could not possibly do the work to its satisfaction. He was set up for failure. The employer’s treatment of the plaintiff in relation to this position was cruel and insensitive.
7. After unilaterally assigning the plaintiff to work at the airport, the employer purported to impose a probation condition upon his employment in January 2019, based upon the fact that he was in a new position.
8. The employer concocted a memorandum falsely stating that the plaintiff stated he would voluntarily resign if his performance did not improve.
9. While the plaintiff was continuing to make sincere efforts to live up to the employer’s unreasonable demands, it terminated his employment. It did so before providing the additional training and further testing it had promised.
10. The plaintiff was an exceptionally vulnerable employee, as the employer must have understood. He was 68 years of age, with limited work opportunities. He accepted humiliating demotions, a substantial loss of pay, and endured multiple episodes of insulting and unfair discipline, in a desperate effort to retain any job with CSA. The plaintiff was made to suffer pointlessly, since CSA wanted to terminate his employment all along.
11. In its termination letter, the employer alleged dishonesty, by falsely stating that the employee was guilty of “time theft”.
12. For no discernible reason, CSA refused to provide the plaintiff with a record of employment (“ROE”), contrary to its legal obligations as an employer and despite numerous requests. The failure to provide the plaintiff with a ROE delayed access to employment insurance by about two-and-a-half months.
13. The employer made numerous, very serious, and false allegations in the RTCC, a publicly available document. The allegations included dishonesty, fraud, theft, conspiracy, sexual harassment, and profound denigration and disparagement of the plaintiff’s work record. These false, insulting allegations constituted a wholesale attack on the plaintiff’s conduct, his character, his years of service, his value as an employee, and his worth as a person. They would have been predictably harmful to the plaintiff.
In relation to the punitive damages for litigation conduct, the Court said a s follows
[169] In particular, CSA’s bad faith conduct in the litigation included:
1. Making numerous serious and false allegations in the RTCC. The defendant would have known that these allegations would damage the plaintiff’s chances of obtaining reasonable alternative employment. The employer did not cite these allegations in its termination letter to the plaintiff. This shows that after termination, the employer made a deliberate decision to respond to his legal claim with vicious, vindictive, and unfounded allegations that it knew or ought to have known could not be supported.
2. To take just one example of the defendant making allegations that it knew it could not support, in its RTCC the defendant emphatically denied that the plaintiff was in fact a management employee who held the title of Marketing and Business Development Manager, or something similar. The plaintiff has adduced several letters he wrote on behalf of CSA utilizing that title, including, even, the letter to Toronto International Airport seeking authorizations for Jocelyn Zhang. The plaintiff does not have access to the defendant’s files, but the defendant’s files would be replete with such documents. Indeed, the defendant relies on minutes of a meeting dated March 9, 2018, attached to the affidavit of Danny Chen, which identifies the plaintiff as the “former Marketing Department Manager”. The former GM would surely have confirmed that these allegations were false.
3. CSA required the plaintiff to bring multiple pre-trial applications to enforce compliance with its obligations as a litigant. Examples are as follows:
a. After making a number of unsuccessful demands, the plaintiff was forced to file an application for an order compelling CSA to produce a list of documents on December 16, 2020, more than one year after CSA filed its RTCC on November 1, 2019. The next day, December 17, 2020, CSA filed a notice of intention to act in person, and requested a delay in the proceedings so that it could retain new counsel. CSA continues to be self-represented. On January 8, 2021, Master Elwood ordered CSA to provide a list of documents by January 15, 2021, and ordered costs in the plaintiff’s favour.
b. The defendant failed to provide the documents listed on its list of documents, thus requiring the plaintiff to bring another application to compel production. On June 17, 2021, Master Cameron ordered CSA to provide the documents listed on its list by June 24, 2021, and ordered costs in any event of the cause to the plaintiff.
c. CSA was consistently uncooperative in making arrangements for the plaintiff to examine CSA’s representative for discovery. The plaintiff nominated the local GM, Jocelyn Zhang, to be examined for discovery. CSA would not confirm her attendance at the examination. In the circumstances, she was a logical choice to be examined. It would be reasonable to expect that her testimony would have been damaging to the defendant’s case. Without prior notice to plaintiff’s counsel, CSA presented a different and uninformed representative for examination.
d. On March 8, 2021, the plaintiff filed a notice of trial confirming a three-day trial to be heard, commencing February 23, 2022. At the trial management conference before Justice Skolrood on January 12, 2022, the court adjourned the trial due to the number of witnesses listed on CSA’s trial brief. The court ordered that new trial dates would be peremptory on CSA, and ordered to CSA comply with the plaintiff’s document discovery requests and to produce outlines of anticipated evidence for its witnesses. Lump sum costs were awarded to the plaintiff, payable forthwith. Subsequently, a five-day trial was scheduled for February 13 to 17, 2023. The defendant thus caused a substantial delay in the proceedings.
e. CSA did not pay the costs award made by Skolrood J. and did not otherwise comply with the court order. On April 29, 2022, Master Vos made a further order compelling compliance with Skolrood J.’s order, including the costs award and made a further costs award in the plaintiff’s favour.
f. One of the plaintiff’s document demands was for disciplinary records for Kitty Chen. This was a logical request in view of CSA’s allegations that the plaintiff and Kitty Chen were co-conspirators in defrauding CSA, and CSA’s notable efforts to create a documentary record relating to discipline of the plaintiff. Although Ms. Chen remains a CSA employee, employed in Guangzhou, China, CSA refused to disclose disciplinary records for her. After being ordered to produce the records by Master Vos on April 14, 2022, CSA asserted that there were no documents relating to the discipline of Ms. Chen, but stated in its written response “Kitty received multiple verbal warning[s] after she was transferred back to China”. It is very difficult to accept that Ms. Chen was in fact disciplined, but there are no records of any kind.
My Comments:
The Judge noted that the Defendant fired their lawyers early on and then represented itself through non-legally trained local employees. I am not sure that this could have happened in Ontario as Rule 15.01(2) of the Rules of Civil Procedure states:
” A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court.”
This is just another example of how dangerous it is for employers to take ridiculous and extreme positions in employment cases. This is even more important where the traditional notice claim is modest and thus the monetary award for the failure to provide reasonable notice is also modest.
Court will usually find a way to punish bad behaviour .
If you like a copy of this case, email me at barry@barryfisher.ca
If you like to determine my date availability for a mediation, go to www.barryfisher.ca
Justice Verhoevan had this to say about a 63 year old employee ( and part owner of a family business ) regarding his mitigation efforts :1) He found that the employee had done nothing to find a comparable job as he was in full retirement mode.
2) However as the law also requires the defendant to show that if he had looked for a job he likely would have found one within the notice period, the Court found that the likelihood of this happening was basically zero for the following reasons :
[113] However, there was little likelihood that the plaintiff could have actually found reasonable alternative employment. As he noted, he was on the brink of retirement, and his professional skills were of limited scope, in that he had worked for a single employer for his entire career.
[114] An employee who has devoted a large part of his working life to one employer and whose knowledge and experience is tailored to the needs of that employer may be less marketable as an employee and may have more difficulty in obtaining alternative employment: Carey v. F. Drexel Co., [1974] 4 W.W.R. 492, 1974 CanLII 733 (B.C.S.C.).
[115] The plaintiff had health issues which limited his employability. He suffers from chronic low back pain with sciatica, caused by compressed discs in his lower back. He has limited tolerance for standing and walking. He is scheduled for vascular surgery. He takes medication, gabapentin, for his medical conditions. The medication causes fatigue and affects his mental alertness.
[116] It is quite unlikely that any employer would hire the plaintiff for a senior executive position paying anything like the salary he previously earned. Such jobs generally involve highly specialized services, with heavy demands and responsibilities. An older employee on the brink of retirement with significant health issues is not likely to obtain such employment.
Why then did the Judge reduce the notice period by 20%?
[117] However, given his retirement plans, it would have been reasonable for him to seek work at a lower salary, perhaps for a limited term. He might have been able to obtain some reasonable work, perhaps similar to the consulting work that he did, that might have brought in at least some income.
My Comments:
This is a BC case. In Ontario the law of mitigation is different on two points.
First, the employee is only obligated to look for comparable employment. They are never required to look for or accept lesser employment.
Second, even if they accept employment of a much lesser salary, that minimal income will not count as mitigation income that reduces the damage claim.
If you like a copy of this case email me at barry@barryfisher.ca
For my mediation date availability go to www.barryfisher.ca