Pereira v. Business Depot Ltd., (2011) 309 B.C.A.C. 286 (CA)

• Judge: Prowse, Levine and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: August 30, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 309 B.C.A.C. 286 (CA);2011 BCCA 361

Pereira v. Business Depot (2011), 309 B.C.A.C. 286 (CA);

    523 W.A.C. 286

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. AU.036

Paul Pereira (respondent/plaintiff) v. The Business Depot Ltd., carrying on business as Staples Business Depot (appellant/defendant)

(CA037515; 2011 BCCA 361)

Indexed As: Pereira v. Business Depot Ltd.

British Columbia Court of Appeal

Prowse, Levine and Frankel, JJ.A.

August 30, 2011.

Summary:

The plaintiff sued for damages for wrongful dismissal. The defendant employer argued that the plaintiff had abandoned his employment contract by failing to return to work following a disability leave of absence.

The British Columbia Supreme Court, in a judgment reported [2009] B.C.T.C. Uned. 1178, held that the plaintiff was dismissed without cause, rejecting the argument that he abandoned his employment contract. The court awarded 10 months' pay in lieu of reasonable notice, without deducting monies received from the plaintiff's group disability insurer to settle an action arising out of the same events. The employer appealed the wrongful dismissal finding and the failure to deduct the settlement monies from the damage award.

The British Columbia Court of Appeal allowed the appeal in part. The court affirmed that the plaintiff was wrongfully dismissed; that there was no objective basis for the employer considering that he had abandoned his employment contract. The court deducted from the damage award the settlement monies received attributable to the employee's claim for unpaid disability benefits for lost income replacement.

Master and Servant - Topic 7566

Dismissal or discipline of employees - Grounds - Repudiation of contract of employment - The British Columbia Court of Appeal stated that "the parties agree that it is an implied term of every employment contract that an employee must attend work. They also agree that when an employee fails to comply with that term he or she will be taken to have abandoned (i.e., repudiated) the contract, entitling the employer to treat the contract as being at an end. Lastly, the parties agree that the trial judge properly stated the test for determining whether an employee had abandoned his or her employment, namely, whether, viewing the circumstances objectively, would a reasonable person have understood from the employee's words and actions, that he or she had abandoned the contract" - See paragraph 47.

Master and Servant - Topic 7566

Dismissal or discipline of employees - Grounds - Repudiation of contract of employment - The plaintiff, the store manager of a Staples Depot store in Nanaimo, was on long-term disability for depression and drug addiction - He paid to attend a 28 day treatment program in Kamloops - Prior to the end of treatment on September 1, the plaintiff advised Staples and his disability insurer of his intention to return to work when the program was completed - He arranged to meet the disability insurer's person in charge of his return to work program to work out the details upon his return to Nanaimo upon completion of the program - Due to the insurer sending his disability cheque to the wrong address (money needed to return to Nanaimo), the plaintiff did not return to Nanaimo until September 18 - He did not advise Staples of his return, as Staples had told him not to contact the store until his return to work program was finalized - The plaintiff did not advise his insurer of his return, because he was told to arrange to meet the return to work person once he became settled (apartment, find support group, etc.) - When neither the insurer nor Staples had contact with him for several days, the insurer terminated his disability benefits for failing to return to work on September 21 - In a September 28 letter (sent to where Staples knew the plaintiff no longer resided), Staples advised the plaintiff that it considered the plaintiff's employment contract as having been abandoned for failure to return to work - The British Columbia Court of Appeal affirmed that the plaintiff was dismissed without cause - Given Staple's knowledge of the cheque confusion, travel problems and other circumstances, it was not objectively reasonable for Staples to believe that the plaintiff abandoned his employment contract by not showing up for work on September 21 - It was significant that Staples had never told the plaintiff when it expected him to return to work - See paragraphs 1 to 60.

Master and Servant - Topic 7710.1

Dismissal or discipline of employees - Damages for wrongful dismissal - Deductions for disability benefits received by employee - An employee was wrongfully dismissed - The judge awarded 10 months' pay in lieu of reasonable notice - The employee, who was receiving long-term disability benefits, had also sued his insurer for terminating benefits - That action was settled - The judge declined to deduct the settlement monies from the damage award on the ground that the employer failed to prove what portion, if any, of the settlement proceeds were attributable to long-term disability benefits - The British Columbia Court of Appeal held that the amount of long-term disability benefits received had to be deducted from the damage award - The judge erred in requiring the employer to prove what portion of the settlement proceeds were attributable to long-term disability benefits - The burden of showing how the settlement proceeds were allocated fell on the employee - The employee had knowledge of the basis on which his claim for disability benefits was settled - The employer did not - The court held that, as the employee failed to prove otherwise, the entire settlement amount was attributable to lost income replacement and deductible from the damage award - Since the settlement amount exceeded the damage award for 10 months' pay, the employee was not entitled to any amount for pay in lieu of reasonable notice - See paragraphs 61 to 73.

Cases Noticed:

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, refd to. [para. 43].

Assouline v. Ogivar Inc. (1991), 39 C.C.E.L. 100 (B.C.S.C.), refd to. [para. 47].

Danroth v. Farrow Holdings Ltd. (2005), 219 B.C.A.C. 151; 361 W.A.C. 151; 47 B.C.L.R.(4th) 56; 2005 BCCA 593, refd to. [para. 47].

Kvello et al. v. Miazga et al., [2009] 3 S.C.R. 339; 395 N.R. 115; 337 Sask.R. 260; 464 W.A.C. 260; 2009 SCC 51, refd to. [para. 56].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 56].

Sylvester v. British Columbia, [1997] 2 S.C.R. 315; 212 N.R. 51; 91 B.C.A.C. 124; 148 W.A.C. 124, refd to. [para. 61].

McNamara v. Alexander Centre Industries Ltd. (2001), 144 O.A.C. 376; 199 D.L.R.(4th) 717 (C.A.), refd to. [para. 62].

Sills v. Children's Aid Society of Belleville et al. (2001), 144 O.A.C. 140; 198 D.L.R.(4th) 485 (C.A.), refd to. [para. 62].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2), [2002] 1 S.C.R. 678; 283 N.R. 233; 299 A.R. 201; 266 W.A.C. 201; 2002 SCC 19, refd to. [para. 63].

Bryde v. Liberty Mutual Insurance Co. et al., [2002] B.C.T.C. 606; 2002 BCSC 606, dist. [para. 65].

Sun Life Assurance Co. of Canada v. Solypa et al., [2001] B.C.T.C. 1346; 96 B.C.L.R.(3d) 178; 2001 BCSC 1346, refd to. [para. 70].

Young v. Saskatchewan et al. (1992), 103 Sask.R. 50 (Q.B.), affd. (1994), 128 Sask.R. 106; 85 W.A.C. 106 (C.A.), refd to. [para. 71].

Nova Scotia Public Service Long Term Disability Plan Trust Fund v. McNally (1999), 179 N.S.R.(2d) 314; 553 A.P.R. 314; 1999 NSCA 129, refd to. [para. 71].

Dos Santos Estate v. Sun Life Assurance Co. of Canada (2005), 207 B.C.A.C. 54; 341 W.A.C. 54; 2005 BCCA 4, affing. [2003] B.C.T.C. 1378; 18 B.C.L.R.(4th) 306; 2003 BCSC 1378, refd to. [para. 72].

Counsel:

R.W. Grant and M.C.T. Ash, for the appellant;

M. Azevedo and A.C.K. Oh, for the respondent.

This appeal was heard on April 26, 2011, at Vancouver, B.C., before Prowse, Levine and Frankel, JJ.A., of the British Columbia Court of Appeal.

On August 30, 2011, Frankel, J.A., delivered the following judgment for the Court of Appeal.