Albert v. Conseil scolaire francophone de la Colombie-Britannique, (2009) 265 B.C.A.C. 130 (CA)

• Judge: Ryan, Lowry and Neilson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 24, 2008
• Jurisdiction: British Columbia
• Citations: (2009), 265 B.C.A.C. 130 (CA);2009 BCCA 19

Albert v. Conseil scolaire (2009), 265 B.C.A.C. 130 (CA);

    446 W.A.C. 130

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. FE.006

Anne-Marie Albert (appellant/plaintiff) v. Le Conseil scolaire francophone de la Colombie-Britannique also known as Francophone Education Authority of British Columbia (respondent/defendant)

(CA034590; 2009 BCCA 19)

Indexed As: Albert v. Conseil scolaire francophone de la Colombie-Britannique

British Columbia Court of Appeal

Ryan, Lowry and Neilson, JJ.A.

January 22, 2009.

Summary:

Albert sued the Conseil scolaire francophone de la Colombie-Britannique, alleging breaches of her employment agreement, wrongful dismissal, intentional infliction of mental suffering and negligent misrepresentation.

The British Columbia Supreme Court, in a decision reported at [2006] B.C.T.C. Uned. A14, awarded Albert $500 for breach of contract and an amount for moving expenses to be assessed by the registrar. The court otherwise dismissed the claims. Albert appealed.

The British Columbia Court of Appeal dismissed the appeal.

Contracts - Topic 7470

Interpretation - Interpretation of words - Same terms in contract - Albert was employed by the Conseil scolaire francophone de la Colombie-Britannique (CSF) as a vice-principal 2 (VP2) - Albert left her position on stress leave - The VP2 position was re-classified as a Principal5 (D5) - Albert applied for the D5 position, was granted an interview, but was not hired - Albert negotiated an agreement for a teaching position with CSF - Albert sued CSF alleging, inter alia, breaches of her employment contract and wrongful dismissal - The trial judge held, inter alia, that the Public Sector Employers Act and the Employment Termination Standards (the Regulations) applied to Albert's employment contract - Under that legislation, the Regulations were deemed to be included in the contract and any contractual provisions inconsistent with the Regulations were deemed void - The trial judge concluded paragraph 4.6 of the contract, which provided for six months severance, was void to the extent that it was inconsistent with s. 6(3) of the Regulations, which provided that no severance was payable during a term of re-employment - Albert appealed, asserting that, inter alia, the severance payment was a retiring allowance and was therefore not subject to s. 6(3) - The British Columbia Court of Appeal rejected the assertion - The definition of "retiring allowance" in s. 13 of Appendix A to the contract clearly had no application to Albert - It was a reasonable assumption that the parties intended to use contractual terms consistently - Similarly, the Regulations' definitions of "notice period", "retiring allowance" and "severance" were of no assistance, particularly when read in conjunction with s. 2.1(1) of the Regulations which made a notice period or severance mutually exclusive with a retiring allowance - The trial judge's interpretation of the legislation and the contract was correct - Paragraph 4.6 clearly dealt with a severance payment following dismissal without cause - Without deciding the point, the court stated that it could be reasonably inferred that paragraph 4.8 permitted the severance to be paid as a retiring allowance for tax reasons - However, that did not alter the payment's fundamental nature - It was a severance payment, and s. 6(3) precluded Albert from receiving it - See paragraphs 55 to 64.

Damage Awards - Topic 1452

Contracts - Employment contracts - Breach of - Albert was employed by the Conseil scolaire francophone de la Colombie-Britannique (CSF) as a vice-principal 2 (VP2) - Issues arose between Albert and certain parents - Albert went on stress leave - The VP2 position was re-classified as a Principal5 (D5) - Albert applied for the D5 position, was granted an interview, but was not hired - Albert negotiated an agreement for a teaching position with CSF - Albert sued CSF alleging, inter alia, breaches of her employment agreement and wrongful dismissal - The trial judge concluded that Albert had been dismissed without cause from a permanent position but she was precluded by the contract and law from recovering damages for wrongful dismissal - The contract allowed dismissal without cause - CSF did fail to evaluate Albert's performance before terminating her VP2 contract and did not follow the procedural steps required by the contract - However, Albert knew that her position had been terminated and, despite being represented by a lawyer, had not demanded adherence to the procedural steps - The judge concluded that CSF's failure was a technical breach where following the procedure would not have changed the result - The judge awarded Albert $500 - Albert appealed, asserting that the trial judge erred in finding that she had not been wrongfully dismissed and in limiting the award to nominal damages for a technical breach - She pointed out that the contract's preamble imposed a duty of good faith on CSF and asserted that, viewed in that context, the judge should have found that CSF's failures constituted a fundamental breach of contract - The British Columbia Court of Appeal rejected the assertions and affirmed the trial judge's findings - The contract did not require an evaluation as a precondition to termination - Further, Albert had cast her claim as a wrongful dismissal action rooted in contract law - She could not use that vehicle to seek judicial review of CSF's decision or reinstatement due to procedural irregularity - The court also held that the $500 was a reasonable award for nominal damages - See paragraphs 39 to 54.

Damages - Topic 205

Entitlement - Damages not capable of assessment - Albert sued the Conseil scolaire francophone de la Colombie-Britannique (CSF) alleging, inter alia, breaches of her employment agreement and wrongful dismissal - Albert claimed, inter alia, $3,652.49 for dental services for her husband that she would have been paid by CSF's benefit plan if she had continued her employment - The trial judge denied the claim where there was no evidence that Albert had actually paid for the services - The judge relied on Wilks v. Moore Dry Kiln Co. of Canada Ltd. (B.C.S.C.) for the proposition that where a plaintiff claimed a loss of benefits as part of her damages for wrongful dismissal, she had to have actually incurred the expense for the benefit in question during the period of reasonable notice - She was not entitled to recover projected benefits for which she had not paid - The British Columbia Court of Appeal held that the Wilks principle did not apply - The documentary evidence established that the husband was preauthorized for dental work before Albert was dismissed, and that he had dental work performed during the following year - Nevertheless, Albert's claim could not succeed - It was impossible to tell whether the dental work performed on the husband was the same as that which was preauthorized - Moreover, the insurer paid for some of the dental work, yet there was nothing to explain how its contributions would have differed if Albert had not been dismissed - Nor was there information as to the holder of the credit cards that paid for the balance of the dental work - It was impossible to reliably calculate Albert's loss on the available evidence - See paragraphs 88 to 91.

Damages - Topic 1202

Nominal damages - For breach of contract - [See Damage Awards - Topic 1452 ].

Damages - Topic 1326

Exemplary or punitive damages - Wrongful dismissal - Albert was employed by the Conseil scolaire francophone de la Colombie-Britannique (CSF) as a vice-principal 2 (VP2) - Albert left her position on stress leave - The VP2 position was re-classified as a Principal5 (D5) - Albert applied for the D5 position, was granted an interview, but was not hired - Albert negotiated an agreement for a teaching position with CSF - Albert sued CSF alleging, inter alia, breaches of her employment contract and wrongful dismissal - The trial judge held that Albert had been dismissed without cause, but this was permitted by the employment contract - The judge denied Albert Wallace damages were she had not been wrongfully dismissed - Further damages arising from the manner of dismissal were not recoverable where the severance payable was limited by the contract and precluded by legislation - Further, CSF had not acted unfairly or in bad faith - After the trial, the law changed so that damages attributable to employer conduct in the manner of dismissal were awarded based on what was in the reasonable contemplation of the parties when the contract was formed - Albert appealed and, as a result of the change to the law, requested damages of $50,000 - Albert asserted that paragraph 4.9 of her employment contract preserved her right to go to court for additional damages related to her termination - The British Columbia Court of Appeal dismissed the appeal - Paragraph 4.9 simply referred to enforcing the contract in court - It did not add rights or remedies beyond those in the contract - The trial judge was aware of the test for bad faith in Wallace - That test had not changed - There was a proper evidentiary basis for her conclusion that, while CSF was at times confused and inconsistent in their treatment of Albert, and while it could have handled the situation better, its conduct did not meet a standard of bad faith or unfair dealing that would entitle Albert to damages - A further consideration, not mentioned by the judge, was the fact that Albert continued to be employed by CSF - This unusual feature further weakened the bad faith allegation - See paragraphs 70 to 82.

Education - Topic 6154

Teachers (incl. principals and non-teaching professional employees) - Employment - Contract - Terms - [See Contracts - Topic 7470 ].

Education - Topic 6259

Teachers (incl. principals and non-teaching professional employees) - Dismissal - General - Without cause - [See Damage Awards - Topic 1452 ].

Education - Topic 6260

Teachers (incl. principals and non-teaching professional employees) - Dismissal - General - Dismissal procedure - [See Damage Awards - Topic 1452 ].

Education - Topic 6270

Teachers (incl. principals and non-teaching professional employees) - Dismissal - General - Remedies - [See Damage Awards - Topic 1452, Damages - Topic 205 and Damages - Topic 1326 ].

Education - Topic 6270

Teachers (incl. principals and non-teaching professional employees) - Dismissal - General - Remedies - Albert was employed by the Conseil scolaire francophone de la Colombie-Britannique (CSF) as a vice-principal 2 (VP2) - Albert left her position on stress leave - The VP2 position was re-classified as a Principal5 (D5) - Albert applied for the D5 position, was granted an interview, but was not hired - Albert negotiated an agreement for a teaching position with CSF - Albert sued CSF alleging, inter alia, breaches of her employment contract and wrongful dismissal - The trial judge held, inter alia, that paragraph 4.6 of the employment contract, which provided for six months severance,was void to the extent that it was inconsistent with s. 6(3) of the Employment Termination Standards (the Regulations) - Section 6(3) provided that no severance was payable during a term of re-employment with the public sector - Albert appealed, asserting, inter alia, that her employment with CFS ended on June 20, 2003, and s. 6(3) only applied to severance paid after she commenced re-employment on September 1, 2003 - She was therefore entitled to severance pay for July and August - The British Columbia Court of Appeal disagreed - Although Albert's duties as a VP2 ended in June 2003, the pay periods under her VP2 contract did not end until July 31, 2003 - The agreement negotiated for the teaching position entitled Albert to be paid as a VP2 for the first year of her teaching position, commencing August 1, 2003 - There was therefore no hiatus in her income - Nor did her income level change - The legislative scheme did not intend to permit double recovery - The intent was to minimize the payment of severance from the public purse - See paragraphs 65 to 69.

Labour Law - Topic 9043

Public service labour relations - The employment contract - Interpretation - [See Contracts - Topic 7470 and second Education - Topic 6270 ].

Master and Servant - Topic 1010

Contract of hiring (employment contract) - General - Interpretation - [See Contracts - Topic 7470 ].

Master and Servant - Topic 1222

Contract of hiring (employment contract) - Termination - Whether cause required - [See Contracts - Topic 7470 ].

Master and Servant - Topic 1842

Remuneration - Statutory regulation - Application of statute - [See Contracts - Topic 7470 ].

Master and Servant - Topic 1884

Remuneration - Severance pay - Entitlement to - [See Contracts - Topic 7470 and second Education - Topic 6270 ].

Master and Servant - Topic 1933

Remuneration - Fringe benefits - Insurance - [See Damages - Topic 205 ].

Master and Servant - Topic 1960

Remuneration - Pension or retirement benefits - On dismissal - [See Contracts - Topic 7470 ].

Master and Servant - Topic 2204

Breach of contract - General - Fundamental breach - [See Damage Awards - Topic 1452 ].

Master and Servant - Topic 2384

Breach of contract - Remedies of employee - Damages - [See Damage Awards - Topic 1452 ].

Master and Servant - Topic 7712

Dismissal of employees - Damages for wrongful dismissal - Punitive or vindictive damages - [See Damages - Topic 1326 ].

Master and Servant - Topic 8061

Dismissal without cause - Damages - General - [See Damages - Topic 1326 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - An appellant sought to introduce four documents as fresh evidence - The British Columbia Court of Appeal refused to admit the documents - The first two documents were in the appellant's possession prior to the trial and, accordingly, did not satisfy the requirement of due diligence - The third document would not have affected the result of the trial - The fourth document did not meet the due diligence test where it had been available at trial but was overlooked - See paragraphs 33 to 38.

Cases Noticed:

Spoor et al. v. Nicholls et al., [2001] B.C.A.C. Uned. 126; 90 B.C.L.R.(3d) 88; 2001 BCCA 426, refd to. [para. 34].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 34].

Richards v. Athabasca School District No. 839, [1931] S.C.R. 161, refd to. [para. 44].

Lalonde v. Kelowna (City) (1981), 29 B.C.L.R. 125 (S.C.), refd to. [para. 44].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 48].

Jalan v. Institute of Indigenous Government et al., [2005] B.C.T.C. 590; 2005 BCSC 590, refd to. [para. 49].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 49].

Finn v. St. John's (City) (2002), 220 Nfld. & P.E.I.R. 245; 657 A.P.R. 245; 2002 NLCA 76, dist. [para. 52].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1; 152 D.L.R.(4th) 1, refd to. [para. 70].

Lane v. Board of School Trustees of School District 68 (Nanaimo-Ladysmith) et al., [2006] B.C.T.C. 129; 47 C.C.E.L.(3d) 219; 2006 BCSC 129, refd to. [para. 71].

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 75].

Hadley v. Baxendale (1854), 9 Exch. 341; 156 E.R. 145, refd to. [para. 75].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 79].

Wilks v. Moore Dry Kiln Co. of Canada Ltd. (1981), 32 B.C.L.R. 149 (S.C.), refd to. [para. 89].

Authors and Works Noticed:

Cassels, Jamie, and Adjin-Tettey, Elizabeth, Remedies: The Law of Damages (2nd Ed. 2008), p. 310 [para. 53].

Counsel:

W.R. Southward, for the appellant;

N.T. Mitha, for the respondent.

This appeal was heard in Victoria, British Columbia, on September 24, 2008, by Ryan, Lowry and Neilson, JJ.A., of the British Columbia Court of Appeal. Neilson, J.A., delivered the following judgment for the court at Vancouver, British Columbia, on January 22, 2009.