COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Albert
          v. Conseil Scolaire Francophone de la Colombie-Britannique,

2009
          BCCA 19

Date: 20090122

Docket: CA034590

Between:

Anne-Marie
    Albert

Appellant

(
Plaintiff
)

And

Le
    Conseil Scolaire Francophone de la Colombie-Britannique
also known as Francophone Education Authority of
British Columbia

Respondent

(
Defendant
)

Before:

The
          Honourable Madam Justice Ryan

The
          Honourable Mr. Justice Lowry

The
          Honourable Madam Justice Neilson

W.
          R. Southward

Counsel for the Appellant

N.
          T. Mitha

Counsel for the Respondent

Place
          and Date of Hearing:

Victoria, British Columbia

September 24, 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

January 22, 2009

Written
          Reasons by
:

The
          Honourable Madam Justice Neilson

Concurred
          in by:

The
          Honourable Madam Justice Ryan
The Honourable Mr. Justice Lowry

Reasons
    for Judgment of the Honourable Madam Justice Neilson:

INTRODUCTION

[1]

The appellant, Anne-Marie Albert, is an employee of the respondent,
    Le Conseil Scolaire Francophone de la Colombie-Britannique, also known as
    the Francophone Education Authority of British Columbia (CSF).  In 2004,
    she sued CSF, alleging breaches of her employment agreement, wrongful dismissal,
    intentional infliction of mental suffering, and negligent misrepresentation.
    Following a trial in 2006, her claims were dismissed but for an award of $500
    for breach of contract, and an award for moving expenses to be assessed by
    the registrar.  The reasons for judgment are found at 2006 BCSC 1539, 54 C.C.E.L.
    (3d) 87.

[2]

On this appeal, Ms. Albert argues that the trial judge made errors
    in the disposition of her contractual claims.  She has not pursued her claims
    in tort.

BACKGROUND

[3]

The parties generally accept the chronology of their dealings set out
    in the trial judges reasons, and I take this background largely from that
    source.

[4]

CSF is a school district instituted in 1997 to cover Francophone education
    in British Columbia.  Ms. Albert commenced her employment with CSF as a vice-principal
    2 (VP2) in Prince Rupert for the 1999-2000 school year.

[5]

CSF had grown rapidly, and introduced the VP2 position to establish
    an administrative officer in its smaller schools.  The VP2 performed both
    teaching and administrative functions for the school.  The teaching component
    was permanent and represented .8 of the job.  The administrative aspect was
    .2 of the job, and was generally described as temporary but continuous.
    Temporary meant that the contract term would be for one year, to protect
    CSF financially if the school closed, in which case the VP2 would return to
    a teaching position.  Continuous meant that the contract would be automatically
    renewed each year.

[6]

The trial judge described the VP2 position as amorphous and evolving.
    When it was introduced, the VP2s signed one-year contracts, but CSF abandoned
    that practice by 2000.  The trial judge found that the VP2 position was covered
    by the terms of the Administrative Officer Employment Agreement between CSF
    and the Regroupement des Directions DÉcoles Francophones (the RDF Contract),
    which dealt with the terms of employment for Administrative Officers, the
    Principals and Vice-Principals in the schools.  She noted, however, that CSF
    did not revise the agreement specifically to include the VP2s, and applied
    it without a cohesive policy.

[7]

These provisions of the RDF Contract are relevant to this appeal:

Whereas

* * *

d)
    Le Conseil scolaire francophone and the Administrative Officer (the parties)
    mutually agree to observe a duty of good faith toward one another, which duty
    shall apply to the employment relationship of this Contract.

* * *

Section
    1  Nature of the Appointment

1.1
    Le Conseil scolaire francophone hereby appoints, on a continuing appointment,
    ___________________________, as an Administrative Officer for Le Conseil scolaire
    francophone effective __________________.

* * *

Section
    2  Reassignment

2.1
    The Administrative Officer may be reassigned at any time by mutual agreement.

* * *

2.4
    Upon reassignment to a new position or school, which would provide a lower
    salary, the Administrative Officer will continue to receive the salary of
    his/her previous position for 12 months.

* * *

Section
    4  Termination

* *
    *

4.4
    This Contract may be terminated, without just and reasonable cause, by Le
    Conseil scolaire francophone upon a 4/5 vote of all
the Directors
of Le Conseil scolaire francophone provided that the Administrative Officer
    shall have been given reasonable notice in writing by Le Conseil scolaire
    francophone that such a vote is being contemplated, together with the reasons
    therefore [sic], and that prior to any such a vote being taken, the Administrative
    Officer has been afforded a full and fair opportunity to be heard by all the
    members of Le Conseil scolaire francophone in a special in-camera meeting,
    to be accompanied at the meeting by representatives of the Administrative
    Officers choice and to respond to the reasons given and to any allegations
    made against him/her and that upon such a vote being taken the Administrative
    Officer is forthwith advised in writing stating the reasons therefore [sic].

4.5
    If Le Conseil scolaire francophone terminates the Contract of the Administrative
    Officer without just and reasonable cause, Le Conseil scolaire francophone
    shall offer to the Administrator Officer a teaching position mutually agreed
    upon and commensurate with his/her qualifications and experience, to be assumed
    upon the effective date of the termination.

4.6
    If the Administrative Officer accepts the offer of a teaching position, Le
    Conseil scolaire francophone shall pay to the Administrative Officer a severance
    payment equal to the amount of salary he/she would have received for 6 months.

* * *

4.8
    Any severance payment provided for in this agreement shall be paid as a retiring
    allowance and will be paid to the Administrative Officer either in one lump
    sum or by installments as selected by the Administrative Officer and may be
    deposited directly to a registered retirement savings plan, to the extent
    permitted by law.

4.9
    The provisions of article 4.6 and 4.7 do not constitute a waiver of any rights
    which Le Conseil scolaire francophone or the Administrative Officer may have
    to enforce this Contract in the Courts under contract or other applicable
    law.

* * *

Section
    8  Interpretation

8.1
    For the purposes of interpreting this Contract, the Contract shall specifically
    be considered to be subject to the provisions of the School Act, the Teaching
    Profession Act, and Regulations and Ministerial Orders made thereunder.  Should
    there exist any conflict between this Contract and the above-stated enactments,
    then those enactments shall take precedence.

8.2
    In the event that any term of this Contract is inconsistent with or in violation
    of the provisions of the School Act or any other laws of the Province of British
    Columbia, it is hereby deemed to be amended to the extent required to avoid
    such inconsistency and, if any term of this Contract is thereby annulled,
    the remainder of this Contract shall remain in full force and effect.

[8]

Ms. Albert sought a leave of absence from her position in Prince Rupert
    for the 2000-2001 school year to pursue a Masters degree in New Brunswick.
    When a car accident interrupted her studies, she applied for and received
    an extension of her leave for the 2001-2002 school year.

[9]

In June 2001, CSF decided to open a new school in Kamloops.  It had
    limited time to find qualified candidates for the VP2 position at this school
    and so Mr. LeBlanc, CSFs human resources agent, offered it to Ms. Albert.

[10]

Ms. Albert was reluctant to give up her Masters programme and relocate
    to Kamloops unless the position was permanent.  The posting referred to the
    teaching component of the job as a full-time continuing permanent position.
    Ms. Albert demanded confirmation from Mr. LeBlanc that the VP2 component would
    also be permanent.

[11]

On August 23, 2001, Mr. LeBlanc faxed Ms. Albert a description of the
    position that stated:

POSITION
          DESCRIPTION

Elementary
          instruction: Kindergarten/Grade 1/Grade 2
and Grade 3 (K/1/2/3)

vice-principal
          II*

FULL
          TIME  0.8 FTE*

continuing
          position (permanent)

...

*This
          instructional assignment shall be combined with a school administration
          assignment (0.2 FTE).  Only internal candidates with three (3) years
          teaching experience will be considered.

[12]

A salary scale for Ms. Albert set out a base salary for the position
    of $47,185 as a teacher, $3,727 for the administrative component, for a total
    salary of $50,912, effective from 1 July 2001 to 30 June 2002.

[13]

Ms. Albert accepted the position and moved with her family to Kamloops
    on Mr. LeBlancs assurance that the VP2 position was permanent.

[14]

After her arrival in Kamloops, Ms. Albert received a letter of understanding
    from CSF, dated September 20, 2001, that described her position as a one-year
    temporary position.  She immediately telephoned Mr. Ouimet, the Assistant
    Superintendent of CSF, to clarify that her position was permanent.  He assured
    her this would be resolved at a pending meeting in October.

[15]

Before she bought a house in Kamloops, Ms. Albert had further discussions
    with Mr. Ouimet about the permanency of her position there.  Their accounts
    of these conversations diverged somewhat.  The trial judge found that there
    was no contractual assurance or promise that Ms. Alberts administrative position
    would last for a fixed time, but the standard expectation was that such a
    position would last three to five years.

[16]

At the end of Ms. Alberts first year at the Kamloops school, CSFs
    personnel were very pleased with her performance, notwithstanding that a performance
    evaluation had not been done due to time constraints.  In July 2002, she received
    notice that her salary for 2002-2003 would be $67,760, without differentiation
    between the teaching and administrative components of the position.  Another
    salary document, however, suggested that $3,727 should be added to that salary,
    for a total of $71,487.  CSF explained this by advising that the increased
    amount was only for a VP2 who had completed a Masters degree.  The salary
    documentation was inconsistent, and the trial judge observed that the resulting
    confusion over Ms. Alberts salary was indicative of the general confusion
    surrounding the VP2 position.  She accepted, however, that Ms. Alberts salary
    for 2002-2003 was $67,760.

[17]

Ms. Alberts situation at the Kamloops school began to deteriorate
    in the fall of 2002 when she encountered difficulties with a new teacher.
    The new teacher was insubordinate and complained about Ms. Albert.  Parents
    became involved in the dispute.  The situation was exacerbated in early 2003
    by a complaint from a parent about Ms. Alberts discipline of her son.  Ms.
    Albert received limited and inconsistent support during these events from
    CSF personnel, who were concerned that parental displeasure would undermine
    the growth of the new Kamloops school.

[18]

On February 4, 2003, Ms. Albert left her position on stress leave,
    due to anxiety, depression and pain from her earlier car accident.  Despite
    her absence, she continued to perform administrative duties for the school.

[19]

In mid-February 2003, CSF and RDF agreed to change the VP2 position,
    and re-classify it as Principal 5 (D5) at the end of the 2003 school year.
     This was an administrative restructuring, and did not change the job description.
    The D5 position was to be a one-year contract that would be renewed each year
    until the school had  50 students, at which point the contract would automatically
    become continuous.  At the outset, all D5 positions were to be internally
    posted for members of RDF.  If they were not filled in this process, they
    would be posted externally.  These changes were formally approved on March
    23, 2003.

[20]

Ms. Albert returned to work on March 24, 2003.  Shortly after, she
    was summoned to attend a meeting in Richmond on March 31, 2003 to discuss
    the problems at the Kamloops school with Ms. Leduc, the Instructional Services
    Manager, Dr. Ardanaz, the Superintendent of CSF, and Mr. Ouimet.  She
    was given little information about the purpose of the meeting, or the communications
    from parents that had instigated it.  The trial judge described this meeting
    and the events immediately subsequent at paras. 22-25 of her reasons for judgment:

[22]
    Albert travelled from Kamloops to attend the March 31 meeting.  Ardanaz, Leduc
    and Ouimet, an intimidating threesome, were in attendance at the two-hour
    meeting.  No minutes were kept by CSF but Albert wrote to RDF about the meeting
    soon after.  Ardanaz told Albert that parents and staff had complained about
    her and that some parents were holding back on re-registration until the situation
    at the school was resolved.  He told Albert that they were going to have a
    meeting with the parents on April 7, investigate, and report back to the board.
    Ardanaz told Albert that she had returned to work without a note from her
    doctor indicating that she was fit to do so.  Ardanaz also told Albert to
    go back on sick leave immediately and until further notice pending the results
    of the investigation.  This was decided without reference to medical documentation
    to support this decision, a practice contrary to CSFs human resources policy,
    and without the involvement of the human resources department, also contrary
    to normal practice.  There was no requirement for an administrative officer
    to have a medical note stating that she was fit to return to work, although
    a note could be required to claim sick leave with pay.  Ardanaz also told
    Albert that the VP2 position was to be phased out and that she would have
    to apply for the new replacement position of D5, that she would interview
    for the job and quite possibly not be selected.  In the latter event, she
    would return to a position as teacher.  Ardanaz did not inform Albert of any
    deadlines for application.  There was also the suggestion that, although Albert
    had done an excellent job at the school, her leadership style was not suitable
    and that stability within the school was the foremost requirement.  When Albert
    suggested that only two or three parents had complained over incidents that
    had already been dealt with, Leduc told Albert to round up her supporters
    for the April 7 parent meeting.  At no time were specific parent or staff
    complaints detailed.

[23]
    Albert had a telephone conversation with Leduc on her way home to Kamloops
    after the meeting.  Leduc told Albert to attend a meeting with herself and
    the superintendent prior to the parents meeting but not to attend the parents
    meeting itself.  Instead, she was to meet with Leduc and Ardanaz following
    the parents meeting to discuss the results.

[24]
    On April 2, 2003, Ardanaz contacted Albert in anger that she had contacted
    parents to advise them to attend the parents meeting scheduled for April 7.
    He was unaware that Leduc had told Albert to contact her supporters.  In the
    conversation, he told Albert that he considered her conduct to be a severe
    case of insubordination.

[25]
    Albert was devastated emotionally by this meeting and these conversations.
    She had never been critically evaluated in her position before despite her
    requests for a performance evaluation in the past.  She also felt that Ardanaz
    had been curt and rude.  She was not informed of specific complaints and felt
    that Leduc had not kept her informed of Leducs meetings with staff and parents,
    thus undermining her authority at the school.  She immediately contacted and
    wrote to RDF.  Albert considered that she had been suspended because she knew
    that CSF could not order her back to sick leave.  She did not return to work.

[21]

On April 4, 2003, Ms. Alberts doctor provided CSF with a medical note
    stating that she was fit to attempt a return to work on March 25, 2003, and
    would continue to be evaluated.  CSF personnel were unable to provide a consistent
    explanation as to why Ms. Albert did not return to work thereafter.

[22]

Following these events, Ms. Albert sought assistance from her professional
    association, the B.C. Principals and Vice-Principals Association (BCPVPA).
    Thereafter, she was aided in her dealings with CSF by a representative of
    BCPVPA, as well as counsel retained by BCPVPA on her behalf.

[23]

On April 7, 2003, her counsel wrote a letter to CSFs counsel on Ms.
    Alberts behalf.  This stated that she continued to be under medical care,
    that the conduct of CSF had caused her great anxiety, and that, as a result,
    she would not attend the upcoming meetings with parents and the CSF administration.
    The letter invited further discussion about her employment relationship and
    future with CSF.

[24]

Dr. Ardanaz, Ms. Leduc and the Kamloops parents met on April 7, 2003.
    The purpose of the meeting was to inform the parents about the changes to
    the VP2 position, to seek their input on the qualities sought in a principal
    for the next year, and to discuss the situation at the school.  Only two parents
    were openly critical of Ms. Albert.  Another asked whether Ms. Albert
    would return, and Dr. Ardanaz advised that she would not be coming back right
    now as she was on sick leave and others would be undertaking training as principal.
    The CSF representatives deflected open discussion about Ms. Alberts performance
    by advising that she would be evaluated by human resources.  No one reported
    to Ms. Albert about what occurred at the meeting.

[25]

CSF personnel gave inconsistent evidence about Ms. Alberts medical
    condition, and about why she did not return to work.  On April 11, 2003, CSFs
    lawyer wrote to Ms. Alberts counsel and denied that she was suspended from
    her employment.  He said that CSF had asked her to provide medical certification
    of her fitness to return to work due to what was understood to be a serious
    mental health condition.  At trial, CSF personnel were unable to explain
    this letter, in view of the earlier doctors note.  Nor could they provide
    a basis for the statement that Ms. Albert had a serious mental health condition.
    The trial judge noted that, regardless of the lack of substance for that statement,
    Ms. Albert did not return to work and felt compelled to obtain a psychiatric
    evaluation and treatment.  A report completed in July 2003 concluded that
    she was stable and in good control.

[26]

By the end of April, Ms. Leduc asked Ms. Albert to return the administration
    files to the school, and informed the parents that her replacement teacher
    was there for an undetermined time.

[27]

The CSF had set a deadline of April 30, 2003 for applications for the
    new D5 positions from RDF employees.  The evidence indicated that CSF was
    inconsistent in the manner in which it filled these positions.  Several VP2s
    were confirmed as D5s without an interview.  The Kamloops D5 position was
    treated differently, and posted externally.  The trial judge found that this
    was further indication of the confusion that surrounded the VP2 position.
    She also found that the Kamloops D5 position was treated differently because
    of the confrontations between Ms. Albert and the parents and staff.

[28]

On May 5, 2003, Ms. Albert was advised through her counsel that she
    could apply for the Kamloops D5 position after she saw a psychiatrist.  Ms.
    Albert applied on May 12, 2003.  She met all the formal criteria and was granted
    an interview, but the position was awarded to another candidate.  Ms. Albert
    also applied for other administrative positions with CSF without success.

[29]

By the end of June 2003, when Ms. Albert had not received an offer
    of any other position with CSF, she contacted CSF and pointed out that paragraph
    4.5 of the RDF Contract required CSF to offer her a position following termination
    without cause.

[30]

Ultimately, Ms. Albert and CSF negotiated an agreement that CSF set
    out in a letter of July 8, 2003.  Ms. Albert received a teaching position
    at the CSF school in Port Alberni.  This was a permanent position under the
    collective agreement for instructional personnel, as opposed to an administrative
    position under the RDF agreement.  However, the parties agreed to treat it
    as a reassignment under paragraph 2.4 of the RDF Contract, and Ms. Albert
    accordingly  continued to receive her VP2 salary for her first year in the
    teaching position.  As well, CSF agreed to pay her moving costs to Port Alberni,
    pursuant to paragraph 12.1 of Appendix A of the RDF Contract.

[31]

At the time of the trial, Ms. Albert continued to work for CSF as a
    teacher at the Port Alberni school, and was earning a salary of $59,820.

THE
    ISSUES

[32]

Ms. Albert brought an application to adduce fresh evidence on this
    appeal.  As well, she alleged that the trial judge erred in six respects:

[1]        in finding that Ms. Albert had not been wrongfully
    dismissed by CSF, and awarding only nominal damages for a technical breach
    of contract;

[2]        in finding that Ms. Albert was not entitled
    to a severance payment under paragraph 4.6 of the RDF Contract due to the
    operation of s. 14.4 of the
Public Sector Employers Act
, R.S.B.C.
    1996, c. 384 and s. 6(3) of the
Employment Termination Standards
,
    B.C. Reg. 379/97;

[3]
    in finding that Ms. Albert was not entitled to an award of damages related
    to the manner of her dismissal;

[4]
    in finding that CSF did not owe Ms. Albert $7,454 for unpaid salary as a VP2
    during 2002-2003 and 2003-2004;

[5]
    in finding that CSF was not obliged to reimburse Ms. Albert for dental expenses
    incurred in 2003-2004;

[6]
    in awarding CSF its costs.

DISCUSSION

The application to lead fresh evidence

[33]

Ms. Albert applied to lead fresh evidence comprised of volume VII of
    the trial transcript, and four documents.  There is no issue with respect
    to the transcript, which would be available to the Court in any event.  CSF
    opposed the admission of the four documents.

[34]

As this Court explained in
Spoor v. Nicholls
, 2001 BCCA
    426, 90 B.C.L.R. (3d) 88 at para. 16, the test for the admission of fresh
    evidence in a civil case is found in the criminal case of
Palmer v.
    The Queen
, [1980] 1 S.C.R. 759.  There, McIntyre J. for the Court
    set out the governing principles at 775:

(1)
The evidence should generally not be admitted if, by due diligence, it
    could have been adduced at trial provided that this general principle will
    not be applied as strictly in a criminal case as in civil cases: see
McMartin
    v. The Queen
[ [1964] S.C.R. 484].

(2)
The evidence must be relevant in the sense that it bears upon a decisive
    or potentially decisive issue in the trial.

(3)
The evidence must be credible in the sense that it is reasonably capable
    of belief, and

(4)
It must be such that if believed it could reasonably,
    when taken with the other evidence adduced at trial, be expected to have affected
    the result.

[35]

The first two documents were a copy of CSFs seniority list and a portion
    of the Teachers Collective Agreement that was in effect from 2001 to 2004.
    Ms. Albert sought to admit these as a basis for what she said was a new argument
    that CSF was negligent in failing to honour her seniority by giving her the
    option of a teaching position at the Kamloops school when her employment as
    a VP2 ended.  However, this was pleaded as a breach of the employment contract
    in paragraph 13(c)(iii) of the further amended statement of claim, and rejected
    by the trial judge at para. 52 of her reasons for judgment.  Ms. Alberts
    counsel frankly admitted that these documents were in her possession prior
    to the trial.  These documents accordingly do not satisfy the due diligence
    requirement of the
Palmer
test.

[36]

The third document is notes of a meeting of CSF personnel on February
    24, 2003, which Ms. Albert says relate to action she took in regard to salary
    changes imposed upon her in 2002.  She says this document was not provided
    to her at trial and that it is relevant to her fourth ground of appeal.  The
    notes simply state that there have been discussions regarding Ms. Alberts
    salary and the CSF is still checking.  I cannot see how this document would
    have affected the result at trial.

[37]

The last document is a copy of a receipt in the amount of $1,001.24
    for dental services to Ms. Alberts husband.  Ms. Alberts counsel advises
    that it was available at trial but was overlooked.  It fails to meet the
    due diligence test set out in
Palmer
.

[38]

I would accordingly dismiss the application to adduce fresh evidence.

Did the trial judge err in finding that Ms. Albert had
    not been wrongfully dismissed by CSF, and awarding only nominal damages for
    a technical breach of contract?

[39]

At trial, Ms. Albert claimed $299,976 as damages for wrongful dismissal.
    This represented the projected salary differential between a teaching position
    and an administrative position with CSF for the balance of her career.

[40]

The trial judge dealt with this claim at paras. 46-52 of her reasons
    for judgment.  She found that the RDF Contract applied to Ms. Albert as a
    VP2.  She held that paragraph 1.1 of the RDF Contract, as well as Ms. Alberts
    dealings with CSF when she was hired for the VP2 post in Kamloops, established
    that it was a continuing position, not a one-year contract.  She found that
    CSF effectively terminated Ms. Albert as a VP2 without cause on March 31,
    2003, although it continued to pay her salary and benefits to June 20, 2003
    (this date was in error and should have been July 31, 2003, a matter discussed
    later in these reasons).  She decided, however, that the terms of the RDF
    Contract, as well as the law governing employment contracts, precluded Ms.
    Albert from recovering damages for wrongful dismissal.

[41]

The trial judge properly observed that an offer of permanent employment
    does not mean that employment is offered until retirement unless that is expressly
    articulated.  She found that the RDF Contract contained no such term.

[42]

Further, the trial judge held that paragraphs 4.4, 4.5, and 4.6 of
    the CSF Contract allowed CSF to terminate Ms. Albert without cause, so long
    as she was offered a teaching position in compliance with paragraph 4.5.
    She noted that Ms. Albert demanded, and accepted, such an offer, and that
    CSF had agreed to pay her as a VP2 for her first year in that teaching post
    and to pay her moving costs, concessions that it was not required to make
    under paragraph 4 of the RDF Contract.

[43]

The trial judge acknowledged that CSF did not evaluate Ms. Alberts
    performance before terminating her contract as a VP2.  Nor had it followed
    the procedural steps set out in paragraph 4.4 of the RDF Contract.  She found,
    however, that Ms. Albert was aware that her position had been terminated and
    that, although she was represented by counsel, she did not demand that CSF
    follow the required procedural steps before dismissing her.

[44]

At paras. 73-75 of her reasons, the trial judge considered whether
    these procedural irregularities entitled Ms. Albert to a remedy.  She observed
    that Ms. Albert was not seeking an administrative remedy, or reinstatement.
    Her claim was limited to damages for breach of contract.  She referred to
Richards v. Athabasca School District No. 839
, [1931] S.C.R.
    161 and
Lalonde v. Kelowna (City)
(1981), 29 B.C.L.R. 125 (S.C.)
    as support for the view that the failure to follow procedural steps should
    be viewed as a technical breach only, if following the procedures would not
    have changed the result, or if the plaintiff has accepted severance pay and
    does not seek reinstatement.  She concluded at para. 75 that the procedural
    irregularities constituted a technical breach of contract:

[75]
    The plaintiff has not established that there would have been any different
    result if her termination had been considered by the board of CSF or if CSF
    had followed the procedures related to the evaluation of her performance.
     This was a dismissal without cause.  The VP2 position was undergoing
    change.  There was uncertainty whether the RDF contract applied to VP2s.
    The leadership at Kamloops was integral to the success of the school.
    The superintendent of CSF had lost confidence in Alberts ability to regain
    the support of parents or teachers.  The plaintiff did not request a
    hearing before the board or a formal notification of the reasons for her dismissal.
     It is improbable that termination without cause would not have ensued
    in any event.  Failure to follow procedure was a technical breach of
    contract separately compensable from severance pay.  In these circumstances,
    nominal damages in the amount of $500 are awarded.

[45]

Ms. Albert says the trial judge erred in finding a technical breach
    of the contract only.  She points out that the preamble to the RDF Contract
    imposes a duty of good faith on CSF, and says that, viewed in that context,
    the trial judge should have found that CSFs failure to evaluate her performance
    and follow the procedures in paragraph 4.4 before dismissing her was a fundamental
    breach of contract, and entitled her to substantial damages for wrongful dismissal.

[46]

With respect to CSFs duty to evaluate her before her dismissal, Ms.
    Albert points to paragraph 16 of Appendix A of the RDF Contract.  This provides
    a process for evaluation of Administrative Officers by CSF in accordance with
    CSF policy.  The only CSF evaluation policy in evidence was Policy G-7005.
    This is entitled Evaluation of Principals, and mandates regular evaluation
    of Principals by the Superintendent, in part to provide a basis for all decisions
    regarding  terminations.  Ms. Albert says that since she was the
de facto
principal at the Kamloops school, this policy applied to her.  Essentially,
    she argues that an evaluation was a precondition to the lawful termination
    of her employment as a VP2, and the trial judge should have found that CSFs
    failure to evaluate her constituted a breach of her employment contract, and
    entitled her to damages.

[47]

I am unable to agree.  Paragraph 16 of Appendix A does not state that
    Administrative Officers must be evaluated before they can be terminated.
    Further, Policy G-7005 clearly applies only to principals.  It makes no mention
    of VPs, VP2s, or Administrative Officers generally.  Even if CSFs confusion
    over the VP2 position justified applying this policy to Ms. Albert, its wording
    does not require an evaluation as a precondition of termination.

[48]

With respect to the failure to follow the procedural requirements in
    paragraph 4.4, Ms. Albert seeks to distinguish the cases relied on by the
    trial judge, and points to
Cardinal v. Director of Kent Institution
,
    [1985] 2 S.C.R. 643 at 661 for the proposition that the denial of a right
    to a fair hearing renders a decision invalid, whether or not the hearing would
    have resulted in a different decision.

[49]

With respect, Ms. Alberts argument is misconceived to the extent that
    it relies on principles and authorities from the field of administrative law.
    As the trial judge pointed out, Ms. Albert has cast her claim against CSF
    as an action for wrongful dismissal, rooted in the law of contract.  She cannot
    use that vehicle to seek judicial review of CSFs decision or reinstatement
    due to procedural irregularity:
Jalan v. Inst. Of Indigenous Government
    et al
, 2005 BCSC 590, at paras. 117-119, [2005] B.C.J. No. 929;
Dunsmuir
    v. New Brunswick
, 2008 SCC 9 at para. 81.

[50]

Ms. Albert knew at the end of March 2003 that the VP2 position was
    being phased out and that she would have to compete for the new D5 position.
    From April 7, 2003 she was represented by counsel or by a representative of
    the BCPVPA in her dealings with CSF.  By the end of May 2003, she knew that
    she had been unsuccessful in obtaining a D5 position, and that her duties
    as a VP2 would come to an end on June 30, 2003.  Instead of insisting that
    CSF observe the procedural steps in paragraph 4.4, she chose to negotiate
    a resolution that entitled her to a teaching position with CSF, increased
    salary for her first year in that position, and her moving expenses.

[51]

I am satisfied that the trial judge made no error in finding that CSFs
    failure to follow those steps was a mere technical breach of contract.

[52]

Finally, Ms. Albert says that even if this was a technical breach,
    the award of $500 as nominal damages was too low.  She refers to
Finn
    v. St. Johns (City)
, 2002 NLCA 76, 220 Nfld.
&

P.E.I.R. 245 at paras. 64-65 as support for the view
    that she should have received at least one months salary, which was $6,500.

[53]

An award of nominal damages is a discretionary matter.
Finn
can be distinguished on the basis that it involved a breach of statutory requirements
    by a public authority.  In
Remedies
:
The Law of Damages
, 2d
    (Toronto: Irwin Law Inc., 2008), Professor Cassels at page 310 describes nominal
    damages as a small sum of money awarded when the plaintiff has established
    a cause of action but has suffered no substantial loss, or has successfully
    mitigated the loss.  I am satisfied that the sum of $500 is a reasonable award
    for nominal damages here, and I would not interfere with the trial judges
    assessment.

[54]

In summary, I find no error in the trial judges conclusion that Ms.
    Albert was not wrongfully dismissed by CSF.  The RDF Contract clearly entitled
    CSF to dismiss employees without cause.  There were several legitimate reasons
    to terminate Ms. Alberts employment as a VP2.  CSF was not required to evaluate
    her performance before doing so.  While the procedural steps in paragraph
    4.4 were not followed, this had no bearing on the outcome of her contractual
    claim for damages.

Was there a legislative bar to recovery of a severance
    payment under paragraph 4.6 of the RDF Contract?

[55]

Ms. Albert argues that the trial judge erred in finding that the legislative
    framework underlying her employment with CSF precluded her from receiving
    the severance payment of six months salary, or $35,744, contemplated by paragraph
    4.6 of the RDF Contract.

[56]

The trial judge usefully summarized the relevant legislation, the issue,
    and her conclusion at paras. 53-56 of her reasons for judgment:

[53]      There
    is then the question of notice period for termination of the VP2 position
    without cause.  Paragraph 4.6 of the RDF contract said that if the administrative
    officer accepted the offer of a teaching position, then CSF was required to
    pay severance equal to six months of salary, in this case, $35,744.  The
    defendant, however, argued that this clause was void because of operation
    of the
Public Sector Employers Act
, R.S.B.C. 1996, c. 384 (the
Act
) and the regulations enacted under section 14.4 of the
Act
,
    the
Employment Termination Standards
(the
Regulations
).
     The pertinent subsections of section 14.4 are:

14.4
(1)    The Lieutenant Governor in Council
    may, by regulation, establish employment termination standards for an employee.

(3)
    If the Lieutenant Governor in Council establishes an employment termination
    standard by regulation under subsection (1), effective on the date on which
    the regulation comes into force,

(a)   the
    standard is deemed to be included in all applicable contracts of employment
    that are commenced, changed or renewed on or after that date, and

(b)   any
    provision of an applicable contract of employment referred to in paragraph
    (a) that conflicts or is inconsistent with the standard is void to the extent
    of the conflict or inconsistency.

(4)   The
    Employment Termination Standards regulation (B.C. Reg. 379/97) made under
    this Act before the commencement of this section continues, as amended by
    this section, and is deemed to have been made under this section.

(5)   On
    the effective date,

(a)   the
    Employment Termination Standards regulation (B.C. Reg. 379/97) is deemed to
    have been amended as set out in the Schedule to the
Public Sector Employers Amendment Act, 2002
,

(b)   the
    employment termination standards set out in that regulation are deemed to
    be included in all applicable contracts of employment that are in force on
    the effective date or are commenced, changed or renewed on or after that date,
    and

(c)   any
    provision of an applicable contract of employment referred to in paragraph
    (b) that conflicts or is inconsistent with any of those standards is void
    to the extent of the conflict or inconsistency.

(6)   Subsection
    (5) is retroactive to the extent necessary to give it force and effect on
    and after the effective date.

(7)   The
    amendment to section 5 (2) of the Employment Termination Standards regulation
    (B.C. Reg. 379/97) made under this section does not apply in relation to an
    employee with whom a contract of employment was entered into before the effective
    date and which contract of employment is for a definite term unless that contract
    of employment is changed or renewed on or after the effective date.

[54]

The CSF is a public sector employer within section
    1(c) of the
Act
as it is a francophone education authority as
    defined in the
School Act
.  Section 6(3) of the
Regulations
states:

Re-employment
    in the public sector

6 (3)    If an employee commences employment with
    a public sector employer during the notice period or period of notice in lieu
    of which severance is provided,

(a)   no severance covering this period of re-employment
    is payable, and

(b)   the
    employee must pay the government any amount that is attributable to the period
    during which the employee is re-employed.

[55]

By section 14.4(3)(a) of the
Act
, the employment
    termination standard is included in all contracts of employment that are commenced,
    changed or renewed on or after the date that the regulation comes into force.
     By section 14.4(3)(b) of the
Act
, any contractual provision
    that conflicts with or is inconsistent with the standard is void to the extent
    of any conflict.  If section 6(3) of the
Regulations
was
    in force at the time that the plaintiff entered into the contract of employment,
    she was no longer entitled to severance pay under paragraph 4.6 of the contract
    because once she had commenced her position in Port Alberni, such pay would
    be in conflict with the
Regulations
.

[56]

The effective date is defined in section 14.1 of the
Act
as the date on which the
Public Sector Employers Amendment
    Act, 2002
, S.B.C. 2002, c. 64 (the
Amendment Act
) receives
    first reading in the Legislative Assembly.  The first reading was on
    October 21, 2002.  This was after the date when the plaintiff entered into
    the contract of employment.  The defendant argued that section 6(3) of
    the
Regulations
is applicable as a result of the retroactive
    provisions of sections 14.4(5) and (6) of the
Act
.  The
    plaintiff argued that the termination standard is applicable only to contracts
    entered into after the effective date as a result of section 14.4(7) of the
Act
.  I have concluded that section 6(3) of the
Regulations
was in force at the time that Albert entered into the contract of employment.

[57]

The trial judge then explained the basis for her conclusion.  Briefly,
    she found that the
Act
and
Regulations
applied
    to contracts between CSF and its employees since August 1, 1997.  Under that
    legislation, the
Regulations
were deemed to be included in those
    contracts, and any contractual provision inconsistent with them was deemed
    void.  In particular, s. 6(3) of the
Regulations
had been in
    force since May 1997, and was continued by s. 14.4(4) of the
Act
.
    It was therefore applicable to Ms. Alberts employment contract.  At para.
    58 of her reasons for judgment the trial judge concluded that since paragraph
    4.6 was inconsistent with s. 6(3) of the
Regulations
, it was
    void to the extent of that inconsistency, and no severance was payable from
    the point when Ms. Albert commenced her teaching position at Port Alberni.
    The rest of the RDF Contract remained in force pursuant to paragraph 8.2.

[58]

Ms. Albert does not attack the trial judges interpretation of the
Act
and
Regulations
.  Instead, she presents two
    arguments that do not appear to have been made at trial.

[59]

First, she says that the trial judge failed to appreciate that the
    six month severance payment provided by paragraph 4.6 was in fact a retiring
    allowance, and was thus not subject to s. 6(3) of the
Regulations
.
    She points out that paragraph 4.8 of the RDF Contract states that any severance
    payment under the agreement shall be paid as a retiring allowance.  She
    says that s. 2.1(1) of the
Regulations
also distinguishes between
    severance and a retiring allowance.  This states:

2.1
    (1)  An employee who receives a notice period or severance must not be given
    a retiring allowance.

Ms.
    Albert says that the trial judge should have found that the intent of paragraphs
    4.6 and 4.8 was to exempt employees who were dismissed without cause from
    s. 6(3) of the
Regulations
, and that she was thus entitled to
    receive $35,744 as a retiring allowance upon termination of her employment.

[60]

I am unable to accept that proposition.  The RDF Contract and the
Regulations
both define retiring allowance in a manner incompatible with Ms. Alberts
    argument.  Section 13 of Appendix A to the RDF Contract contains the only
    other reference to retiring allowance in the Contract.  It is titled Retiring
    Allowance and states:

An
    administrator who is 55 years of age or older shall receive, on retirement,
    a retiring allowance in recognition of his/her service to Le Conseil scolaire
    francophone equal to five (5) percent of his/her annual salary at retirement
    for each year of service with Le Conseil scolaire francophone and the immediately
    preceding school district, either as a teacher or as an Administrative Officer
    to a maximum of one years salary.

[61]

It is a reasonable assumption that it was the intent of the parties
    to the RDF Contract to use contractual terms consistently.  Retiring allowance
    as defined by s. 13 clearly has no application to Ms. Albert.  She was not
    55 years old, and she was not retiring.

[62]

Similarly, the
Regulations
define notice period, retiring
    allowance, and severance:

notice
    period
means the length of time from the date on which notice
    of termination is given to an employee until the date on which employment
    will terminate;

retiring
    allowance
means a payment that, by a contract of employment, an
    employee may receive on or after retirement of the employee from his or her
    employment in recognition of the employees service, but does not include

severance
means the severance payment made in lieu of the notice
    period;

[63]

Those definitions are of no assistance to Ms. Albert, particularly
    when read in conjunction with s. 2.1(1) of the
Regulations
,
    which makes a notice period or severance mutually exclusive with a retiring
    allowance.

[64]

I am satisfied that the trial judges interpretation of the legislation
    and the RDF Contract was correct.  Paragraph 4.6 clearly deals with a severance
    payment following dismissal without cause.  I find it a reasonable inference
    that paragraph 4.8 permits the severance to be paid as a retiring allowance
    for tax reasons, since it permits the deposit of the payment into a registered
    retirement savings plan.  However, it is not necessary to decide that point.
    Payment of severance as a retiring allowance does not alter the fundamental
    nature of the payment.  It is a severance payment, and s. 6(3) of the
Regulations
precludes Ms. Albert from receiving it.

[65]

Ms. Alberts second argument is that s. 6(3) of the
Regulations
only applies to severance paid once an employee commences re-employment with
    a public sector employer.  She says that her employment as a VP2 ended on
    June 30, 2003, and the teaching position in Port Alberni did not start until
    September 1, 2003.  She is therefore entitled to severance pay under paragraph
    4.6 of the RDF Contract for July and August.

[66]

I agree that this is a reasonable interpretation of s. 6(3) if there
    is a hiatus between an employees termination date and the commencement of
    the new teaching position.

[67]

However, CSF says this does not apply to Ms. Albert, as she continued
    to receive her salary as a VP2 during July and August 2003.   CSF points out
    that, although Ms. Alberts duties as a VP2 in Kamloops ended in June 2003,
    the pay periods under her VP2 Contract did not end until July 31, 2003.  The
    agreement reached between the parties and recorded in the letter of July 8,
    2003 entitled Ms. Albert to be paid as a VP2 for the first year of her teaching
    position in Port Alberni, commencing August 1, 2003.  Ms. Alberts Employees
    Pay History confirms that she was paid as a VP2 during July and August 2003.
    CSF says it would be inconsistent and unfair to now permit Ms. Albert to rely
    on paragraph 4.6 to obtain double recovery for those two months.  If she is
    entitled to severance pay under paragraph 4.6 for that period, it should be
    set off against the salary she was already paid for those months.

[68]

I am satisfied that the documentary evidence supports a conclusion
    that, although Ms. Albert was not working during the summer of 2003, CSF continued
    to pay her as a VP2 for July and August.  There was therefore no hiatus in
    her income between her termination as a VP2 and the commencement of her employment
    in Port Alberni.  Nor did her income level change.

[69]

I cannot agree that it is the intent of the legislative scheme underlying
    public sector employment to permit Ms. Albert to achieve double recovery by
    collecting severance under paragraph 4.6 at the same time that she continued
    to receive her VP2 salary.  Clearly the intent of the legislation is to minimize
    the payment of severance from the public purse.  I accordingly would not give
    effect to this argument.

Was Ms. Albert entitled to damages related to the manner of her dismissal?

[70]

At trial, Ms. Albert sought damages in the form of an extension of
    the notice period related to the manner of her dismissal, in accord with the
    principles in
Wallace v. United Grain Growers Ltd.
, [1997] 3
    S.C.R. 701, 152 D.L.R. (4th) 1.   She claimed that CSF had acted unfairly
    and in bad faith in terminating her employment as a VP2.

[71]

The trial judge reviewed the
    principles in
Wallace
, and the decision of Tysoe J. in
Lane
    v. School District 68 (Nanaimo-Ladysmith)
, 2006 BCSC 129, 47 C.C.E.L.
    (3d) 219.
Lane
was a case involving a similar contract and
    legislative scheme.
At para.
    188 of that decision, Mr. Justice Tysoe stated:

The
    second reason why Ms. Lane is not entitled to Wallace damages is that her
    contract of employment stated that the School Board had the ability to dismiss
    Ms. Lane without cause and, at its discretion, provide Ms. Lane with 12 months'
    notice of termination or pay her salary and benefits for 12 months. In these
    circumstances, where there is an employment contract containing an express
    term regarding notice of termination or payment in lieu thereof, the law does
    not imply a term providing for reasonable notice which is different from the
    express term: see
Barnard v. Testori America Corp
., [2001] P.E.I.J.
    No. 28, 2001 PESCAD 4 at [paragraph] 7. Even if the School Board had acted
    with bad faith in terminating Ms. Lane's employment, the maximum amount of
    damages she is entitled to receive under her contract of employment is the
    equivalent of 12 months' salary and benefits. She has already been paid this
    amount, and she is not entitled to be paid any further damages.

[72]

The trial judge concluded at para. 69 of her reasons for judgment that
    Ms. Albert was not entitled to
Wallace
damages because she had
    not been wrongfully dismissed by CSF.  She agreed with Tysoe J. that damages
    arising from the manner of dismissal are not recoverable where the employment
    contract expressly limits the severance payable, and legislation further limits
    that severance if the employee accepts another teaching position.

[73]

While those findings made it unnecessary for the trial judge to consider
    whether CSF had acted unfairly or in bad faith in the course of terminating
    Ms. Albert, she nevertheless went on to consider this, and concluded that
    it had not.  The basis for that finding is set out at para. 71 of her reasons
    for judgment:

[71]

In this case, the plaintiff was terminated shortly after
    returning from sick leave, was not informed about the purpose of the March
    31 meeting, was treated insensitively at the meeting, was subsequently marginalized
    by her superiors, was not given an opportunity to respond to concerns about
    her performance, was never evaluated as to performance, and was not dismissed
    according to contractual procedure.  On the other hand, CSF was entitled
    to dismiss without cause, the dismissal pertained to only a small portion
    of her employment, she was offered a new teaching position in reasonable time,
    she lost no salary and was paid excessively over the ensuing year, and the
    conduct of CSF can be blamed on general confusion about the VP2 position and
    anxiety concerning the future of the Kamloops school.  Although CSF could
    certainly have handled the situation better, especially the key personnel
    responsible for the Kamloops school, I do not find bad faith or unfair dealing
    in the overall circumstance when there was no ill will directed towards the
    plaintiff personally, but rather a heightened, hyperventilated concern about
    the growth and future of the Kamloops school.

[74]

Later in her reasons, the trial judge dealt with the plaintiffs claims
    of intentional infliction of mental suffering and negligent misrepresentation
    (which are not being pursued on this appeal).  At paras. 78 and 80 she made
    additional findings that have some bearing on CSFs conduct, and whether it
    acted unfairly or in bad faith in its dealings with Ms. Albert:

[78]

The plaintiff has not proven the tort [of intentional
    infliction of mental suffering].  The conduct of CSF did not reach the
    level of flagrant or outrageous.  It did not engage in conduct that would
    foreseeably inflict shock and mental suffering.  CSF did not make reckless,
    careless, or inaccurate accusations against the plaintiff, nor did CSF employees
    show wanton disregard for the plaintiffs health.  Although Ardanaz and
    Leduc were insensitive during and after the March 31 meeting, I do not conclude
    that either specifically intended to cause Albert mental suffering.  They
    were focused on the future of the Kamloops school and tried to manage the
    situation when the position of VP2 was in a state of confusion and flux, when
    parents had questioned Alberts leadership style, and when there had been
    disruption at the school due to absences of the two main teachers for extended
    periods during the school year.  They did express some concern for the
    plaintiffs state of health and requested updated medical reports to follow
    through on her recovery.  The medical report of July 2003 did not suggest
    that the plaintiffs depression had been caused by the manner of her discharge
    as VP2, but rather by the culmination of events at the school since the fall
    of 2002 and the plaintiffs fragile state as a result of her previous car
    accident.  In any event, the plaintiff was in good and stable condition
    by July 2003 such that any conduct by CSF resulted in only transient injury
    to feelings.

[80]

The evidence [related to negligent misrepresentation]
    established that the plaintiff did not consider anything that Ouimet may have
    said in the October conversation to be an assurance or promise that she would
    remain in Kamloops for four or five years.  She knew that Ouimet could
    not promise her anything in the future.  Any comment by Ouimet was based
    upon the normal time that one could expect to remain in one place into the
    future dependent upon growth of the school.  This was a brief conversation
    that included mention about the possibility of Albert buying a house, the
    specifics of which were not conveyed by Albert.  At the time of the conversation,
    there was no plan to change the VP2 position and it was expected that Albert
    would perform well in Kamloops.  Albert said that she would have bought
    the house regardless of Ouimets statements.

[75]

Since the trial, the Supreme Court of Canada has recast how damages
    attributable to employer conduct in the manner of dismissal should be measured:
Honda Canada Inc. v. Keays,
2008 SCC 39, [2008] 2 S.C.R. 362
    at paras. 50-60.  Instead of awarding damages through an extended notice period
    as advocated in
Wallace
, Bastarache J., writing for the majority,
    determined that such damages should be awarded according to the classic principle
    articulated in
Hadley v. Baxendale
(1854), 9 Ex. 341, 156 E.R.
    145: what was in the reasonable contemplation of the parties at the time the
    contract was formed?  He observed that there is an expectation by both parties
    to an employment contract that employers will act in good faith in the manner
    of dismissing an employee.  Their failure to do so will accordingly lead to
    foreseeable compensable damages.  With respect to the conduct that will attract
    such damages, the Court at para. 57 endorsed the view in
Wallace
that it will be conduct during dismissal that is unfair or is in bad faith
    by being, for example, untruthful, misleading or unduly insensitive.

[76]

As a result of the decision in
Honda
, Ms. Albert now
    seeks damages of $50,000 instead of an extension of the notice period, due
    to what she says was bad faith conduct by CSF in terminating her VP2 position.
    While she acknowledges that  paragraph 4 of the RDF Contract applied to her
    dismissal, she says that paragraph 4.9 of the RDF Contract nevertheless preserved
    her right to go to court for additional damages related to her termination.
    She also points to the term in the preamble of the RDF Contract that the parties
    will observe a duty of good faith toward each other and argues that,
even if CSF dismissed her in accordance with the terms
    of that Contract, it did so in a manner that was unfair and in bad faith and
    thus breached that contractual term.  She says she is accordingly entitled
    to damages arising from that breach.  She distinguishes
Lane
on the basis that the contract there did not include an express duty of good
    faith.

[77]

I do not agree that paragraph 4.9 of the RDF Contract adds force to
    Ms. Alberts arguments.  It simply refers to enforcing the RDF Contract in
    the courts.  It does not add rights or remedies beyond those in the Contract.

[78]

As to Ms. Alberts argument that CSF breached its contractual duty
    of good faith, in my view, there is little distinction between an express
    term of good faith in a contract and the implied term to act in good faith
    at common law, in deciding whether an employer breached that term in the manner
    in which it dismissed an employee.  The question remains the same: did the
    employer act
unfairly or in bad faith?

[79]

Here, the trial judge found that there was no bad faith or unfair dealing
    by CSF when it dismissed Ms. Albert.  That is a finding of fact, and must
    be given appellate deference.  This Court cannot interfere unless Ms. Albert
    establishes that the trial judge made a palpable and overriding error:
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 10.

[80]

Ms. Albert argues that the trial judge erred in finding that there
    had been no bad faith.  She says that the judge failed to consider all aspects
    of the dealings between the parties, including events prior to her termination,
    and that she weighed the evidence improperly in concluding that CSFs conduct
    was due to confusion, rather than bad faith.  Ms. Alberts counsel conceded
    that the evidence fell short of establishing that CSF deliberately intended
    to cause Ms. Albert harm, but argued that the trial judge should have found
    that CSFs insensitivity and reckless disregard met the test for bad faith.

[81]

I am unable to find that the trial judge made any reviewable error
    in concluding that CSF did not act unfairly or in bad faith in terminating
    Ms. Alberts employment as a VP2.  She was clearly aware of the legal test
    for bad faith in
Wallace
.
Honda
has not changed
    that.  She heard and assessed the witnesses evidence and credibility over
    the course of an 11 day trial.  Her reasons for judgment display a detailed
    knowledge of the dealings between Ms. Albert and CSF, and of each of the events
    that Ms. Albert argues should have supported a finding of bad faith, both
    before and during her termination.  In my view, there was a proper evidentiary
    basis for her conclusion that, while CSF was at times confused and inconsistent
    in their treatment of Ms. 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 Ms. Albert to damages.  A further consideration, not expressly
    mentioned by the trial judge in her analysis, was the fact that Ms. Albert
    remained employed by CSF at the trial, three years after her termination as
    a VP2.  In my view, this is an unusual feature in a wrongful dismissal case
    and further weakens the allegation of bad faith.

[82]

I would not accede to this ground of appeal.

Is Ms. Albert entitled to recover $7,454 from CSF for
    unpaid salary as a VP2 for 2002-2003 and 2003-2004?

[83]

Ms. Albert claims that CSF owes her unpaid salary of $7,454, which
    she says represents the annual administrative supplement of $3,727 associated
    with the VP2 position that she should have received in addition to her teaching
    salary of $67,760  for each of 2002-2003 and 2003-2004.

[84]

The trial judge dealt with this claim at paras.14 and 59 of her reasons,
    and disallowed it.  She acknowledged that there had been confusion among the
    CSF staff as to this issue, which she found indicative of the general confusion
    surrounding the VP2 position.  She found, however, that this supplement had
    been paid to only one VP2, on the basis that she had completed her Masters
    degree.  The other VP2s, including Ms. Albert, were not entitled to it.  The
    trial judge observed that Ms. Albert had received and accepted a salary of
    $67,760 in 2002-2003, and that is what appeared in her official salary document.
    She found that the supplement was not payable to Ms. Albert in 2003-2004 for
    the additional reason that she no longer held the position of VP2 in that
    year.

[85]

Ms. Albert argues that, in reaching those conclusions, the trial judge
    ignored other relevant evidence.  A review of the available documents and
    testimony, however, does not support that view.  These demonstrate that up
    to 2002, Ms. Alberts VP2 salary document did break her salary into a teaching
    component and an administrative component.  In 2001-2002, these were $50,912
    and $3,727 respectively, resulting in a total salary of $50,912.  In 2002-2003,
    CSF adopted a new Salary Scale form that did not break down the two components.
    Instead, it indicated Ms. Albert was to receive a base salary for category
    VP2 of $67,760.  Mr. Paquin, Manager of Human Resources for CSF, testified
    that this was because CSF had negotiated a new way to pay VP2s, and had increased
    their salaries significantly.  There was some inconsistency in CSFs documents,
    as the trial judge noted.  One did set out a base salary of $71,487 for VP2s.
    This same document, however, indicated there would be a deduction from that
    of $4,000 for vice-principals with no Masters degree.  It was silent about
    a reduction for VP2s.

[86]

Ms. Albert gave evidence that when she received her salary information
    for 2002-2003 she asked Mr. Menard why she was not receiving the administrative
    supplement of $3,727 in addition to the base salary of $67,760, and he told
    her that she was not entitled to it.

[87]

In my view, there was evidence to support the findings of fact made
    by the trial judge that from 2002 on Ms. Alberts total salary as a VP2 was
    $67,760, and that she was not entitled to receive an additional $3,727 in
    2002-2003 and 2003-2004.  Ms. Albert has failed to convince me that there
    is any basis for disturbing those findings.

Rejection of the claim for dental benefits

[88]

Ms. Albert claimed $3,652.49 for dental services for her husband that
    she said would have been paid by CSFs benefit plan if she had continued employment
    as a VP2.  She presented a series of receipts for these services, as well
    as a Dental Pre-Authorization Remittance Statement issued by Blue Cross, which
    is dated April 28, 2003 and appears to authorize dental treatment for her
    husband, Mr. G. Fincham, over the next 12 months.  The record indicates that
    these documents  were admitted for their truth.  The invoices show that a
    dentist provided treatment to Mr. Fincham in 2003-2004, and that he was paid
    for this in part by Blue Cross and in part by credit cards.  Ms. Alberts
    claim represents the total credit card payments.

[89]

At para. 63 of her reasons for judgment, the trial judge concluded
    the claim had to be denied because there was no evidence to show that Ms.
    Albert had actually paid for these services.  In doing so, she relied on
Wilks
    v. Moore Dry Kiln Co. of Canada Ltd.
(1981), 32 B.C.L.R. 149 (S.C.)
    at 152, which stands for the proposition that where a plaintiff claims loss
    of benefits as part of her damages for wrongful dismissal, she must have actually
    incurred the expense for the benefit in question during the period of reasonable
    notice.  She is not entitled to recover projected benefits for which she has
    not paid.

[90]

I disagree with the trial judge that the
Wilks
principle
    applies to this case.  I am satisfied that the documentary evidence establishes
    that Ms. Alberts husband was preauthorized for dental work while she was
    still a VP2, and that he had dental work performed during the following year.
    I nevertheless agree that the claim cannot succeed.  In my view, the difficulty
    lies in limitations in those documents.  In the absence of evidence explaining
    them, it is impossible to tell whether the dental work performed on Mr. Fincham
    was the same as that which was preauthorized by Blue Cross.  Moreover, it
    is apparent that Blue Cross paid for some of this work, yet there is nothing
    to explain how its contributions would have differed if Ms. Albert had remained
    in a VP2 position.  Nor is there information as to the holder of the credit
    cards that paid for the balance.  In short, I find it impossible to reliably
    calculate Ms. Alberts loss on the available evidence.

[91]

I would accordingly disallow this claim.

Costs

[92]

On February 19, 2007, the trial judge awarded CSF its costs up to January
    25, 2006, and double costs thereafter, apparently on the basis that CSF had
    made a formal offer of settlement to Ms. Albert that exceeded the amount awarded
    to her at trial.

[93]

Ms. Albert argues that this award was inappropriate, and that she should
    instead have recovered special costs from CSF, based on its conduct during
    the case.  She says that CSF extended the litigation unreasonably and unnecessarily,
    by taking unreasonable and inconsistent positions.

[94]

CSF says that Ms. Albert made similar submissions to the trial judge,
    who rejected them.

[95]

An award for costs is a discretionary order, and an appellate court
    may only interfere with such an order if it finds that the trial judge misdirected
    herself on the law, or made a palpable error in her assessment of the facts.
    We do not have the judges reasons on the issue of costs, and the submissions
    of counsel were abbreviated.  It is impossible to carry out any meaningful
    review of the award for costs on the limited material before us.  I would
    not alter the order with respect to costs.

CONCLUSION

[96]

I would accordingly dismiss Ms. Alberts appeal.

The Honourable
    Madam Justice Neilson

I agree:

The Honourable Madam Justice Ryan

I agree:

The Honourable Mr. Justice Lowry


COURT OF APPEAL FOR
BRITISH COLUMBIA

Citation:

Buchan v. Moss
  Management Inc.,

2009 BCCA 25

Date: 20090123

Docket: CA035964

Between:

Steven Thomas Buchan

Appellant

(
Plaintiff
)

And

Moss Management Inc.,
Alan Frederick
Wolrige
,
Peter Colin Graham Richards and 331609 B.C. Ltd.

Respondents

(
Defendants
)

Before:

The Honourable Mr. Justice
  K. Smith

The Honourable Mr. Justice
  Lowry

The Honourable Mr, Justice
Groberman

Oral Reasons for Judgment

Appellant Appearing In Person

T.J.
  Delany
S.W.K. Urquhart

Counsel for the Respondent

Place and Date:

Vancouver
,
British Columbia

23 January 2009

[1]

LOWRY J.A.
: Steven Buchan appeals the order of Mr. Justice
Bauman dismissing the action he brought seeking a declaration of his beneficial
ownership of a corporation and certain assets it holds.  The judges
comprehensive reasons for the decision he reached after what was a long trial
are indexed as 2008 BCSC 285.  The primary issue raised on the appeal is
purely one of fact.  The issue turned on a determination of
credibility.  As is well established, an appellate court cannot intervene
in circumstances of this kind unless the decision from which the appeal is
taken is shown to be predicated on an overriding and palpable error:
Housen
v.
Nikolaisen
,
2002 SCC 33, [2002] 2 S.C.R. 235.  Mr. Buchan acknowledges that but says
the judge misapprehended or ignored evidence which led him into such an error.

[2]

Mr. Buchan is now representing
himself.  He has, however, filed a factum that was drawn by his trial
counsel.  Mr. Buchan relies on the argument made in this factum and makes
some further submissions.

[3]

Mr. Buchan sued on a written agreement he
made with three others on 20 March 1990:  Frederick Marsh, a business
associate; Alan
Wolrige
, an accountant; and Peter
Richards, a solicitor.  The purpose of the agreement was to provide for
the management of assets Mr. Buchan and Mr. Marsh were endeavouring to assemble
to pursue a mining venture either personally or through two publically traded
companies in which they held substantial interests.  The companies were
referred to as Prospectors and Boston Financial.  On the face of what
is referred to as the Management Agreement they were to own the assets either
directly or indirectly and each of the four parties were to share equally in
the benefits derived from the anticipated success of the venture.  The
assets identified at the time were set out in Schedule B to the agreement.
 The first two were an existing mill and
townsite
to be acquired from what is referred to as Amax by an offshore company, and a
60% interest held by Cominco in the development of certain mining
properties.  The other 40% interest was held by Prospectors.  The
remainder of the assets listed were acquired by a numbered company, 331609 B.C.
Ltd., which Mr. Buchan claimed to beneficially own.

[4]

The agreement reflected that Mr. Buchan
and Mr. Marsh proposed, but were not obligated to arrange for, the acquisition
of the mill and the
townsite
.  The Cominco
interest was being acquired by a shelf company, Moss Management Ltd., made
available by Mr. Richards, and at least most of the purchase price of $800,000
was expected to be provided by Boston Financial.  Apparently unknown to
Mr. Buchan, 500 shares in Moss Management were issued to each of Mr.
Wolrige
and Mr. Richards, which was consistent with what
Mr. Marsh testified was his understanding of the ownership of that
company.  By the time of the trial, he and Mr. Buchan had gone their
separate ways.

[5]

The expectations for financing the
acquisition of the Cominco interest were not realized.  Boston Financial
paid a deposit of $25,000 but nothing more.  Mr. Richards arranged
for payments of $50,000 in each of April and May as well as a payment of
$375,000 in June.  He obtained a one-year deferment of the balance owed
and he and Mr.
Wolrige
made substantial payments of
interest in the interim.  The balance was eventually paid by TVI Copper
Inc. as part of a transaction whereby TVI acquired some of the mineral
claims.  Moss Management had proceeded to acquire the 40% interest in the mining
properties held by Prospectors.  The TVI transaction facilitated the
completion of that acquisition.

[6]

In the end, Mr. Buchan made no tangible
contribution to the mining venture.  The mill and the
townsite
were never acquired.  To do so would have required a multi-million dollar
investment.  The assets held by 331609 B.C. Ltd. were, in the judges
view, of limited value and he concluded Mr. Buchan had not made out his claim
to them and, given that it was equitable in nature, it was not one the court
should recognize in any event.  Thus, as the judge said:

[228]
Richards and
Wolrige
hold Moss in trust for
Separ
[an offshore company], which in turn is controlled by
a complicated offshore ownership.  Marsh and Buchan have nothing, save
their personal shareholdings in Prospectors and Boston Financial.

[7]

The question then was whether Mr. Buchan
had been wrongly deprived of the interest in Moss Management to which he was
entitled by virtue of the Management Agreement.  Mr. Richards and Mr.
Wolrige
took the position the agreement was never performed
and was mutually abandoned.  Mr. Buchan maintained that was not so.
His position was and remains the agreement was performed and entitles him to
the beneficial ownership of Moss Management.

[8]

The judge undertook a thorough
consideration of the credibility of Mr. Buchan and Mr. Richards.  He found
Mr. Buchans testimony to be quite wanting.  He based his assessment on
the inconsistency in Mr. Buchans conduct over time.  Aspects of Mr.
Buchans behaviour in relation to his dealings with the directors of
Prospectors as well as Mr. Richards and Mr.
Wolrige
,
and his posturing different positions before the court were discussed (
paras
. 234-253).  The judge concluded he could place
little reliance on Mr. Buchans evidence.  By contrast, while the judge
did not accept what Mr. Richards had to say on all aspects of his evidence, he
did find Mr. Richards testimony to be truthful on a number of critical
issues and he preferred it where it conflicted with Mr. Buchans
testimony.  Mr. Buchan does not now challenge directly any of the basis of
the judges assessment of credibility.

[9]

Starting with his assessment of
credibility, the judge found the Management Agreement was never implemented or
performed.  He began his analysis on the point as follows:

[321]
I begin by noting Mr. Richards' evidence that at some point after he was forced
to make the first payment of $50,000 under the Cominco Moss Agreement, he told
Wolrige
, Marsh and Buchan, that as far as he was concerned
the Managers' Agreement was at an end and that he would thereafter proceed to
salvage what he could out of the aborted venture.  I accept this
evidence.

[10]

The judge considered various aspects of
Mr. Buchans conduct in dealings between Moss Management and Prospectors which
he saw as clearly inconsistent with Mr. Buchan having an ownership interest in
Moss Management during the spring and summer of 1990.  He attached
importance to Mr. Buchans acquiescence in the TVI acquisition of assets of
Moss Management.  Perhaps most significantly, the judge found a proposal
prepared by Mr. Richards, dated 18 May 1990, to permit Mr. Buchan to
acquire a 10% interest in Moss Management for $75,000 to be completely
inconsistent with Mr. Buchan considering he had a continuing ownership interest
stemming from the Management Agreement.  The judge rejected Mr. Buchans
assertion that he had never seen the proposal.

[11]

The judge concluded:

[340]
I find, as a fact, that Buchan accepted, in the spring of 1990, Richards'
position that the Managers' Agreement would never be implemented or performed
and that Richards and the others would work towards salvaging whatever they
could.

[341]
While it was proposed that Marsh and Buchan would have an indirect interest in
Moss, that never happened.  The scheme was abandoned and Buchan accepted
that and left Richards and
Wolrige
to do their best
to preserve the Cominco Moss Agreement in the hope of selling off the assets of
Moss to repay the outstanding loans to Moss.

[12]

Mr. Buchan says the judge was wrong; the
evidence does not support his conclusion.  He maintains the judge made a
fundamental error predicated on a critical misinterpretation of the
evidence.  He recognizes the judges conclusion is rooted in an assessment
of credibility but says that does not render the judgment immune from appellate
intervention because he is in a position to show the judge could not have
reasonably accepted Mr. Richards testimony, citing
Lapointe
v.
Hôpital
Le
Gardeur
,
[1992] 1 S.C.R. 351 at 358-60.  Mr. Buchan argues that, rather than Mr.
Richards assuming responsibility for salvaging Moss Managements acquisition of
the Cominco interests, the parties to the Management Agreement moved forward
after it was made to find investors so the interests acquired could be
developed.  He maintains that what he and Mr. Marsh brought to the table
were opportunities which gave them the ownership interest the judge accepted
was intended, while Richards and
Wolrige
were to be
remunerated for their contribution of skill and knowledge in their respective
fields.

[13]

Mr. Buchan contends the judge
misunderstood Mr. Richards evidence to the effect the Management Agreement
began to unravel almost immediately.  He says Mr. Richards testimony in
this regard relates to events after May 1990 when the second instalment of
$50,000 had been paid to Cominco.  Mr. Buchan then says this
misunderstanding of the evidence led to undue weight being attached to the
proposal Mr. Richards drew for Mr. Buchan to acquire a 10% interest in Moss
Management.

[14]

The judge quoted Mr. Richards testimony
upon which he relied in this regard:

[191]
He testified that the Managers' Agreement of 20 March 1990 was virtually a
dead issue, almost immediately after its execution (T. 25 October 2007,
p. 42, ll. 37 to p. 43, l. 22):

Q
And during this time when your group put up the second $50,000 towards the
Moss/Cominco payment, did you have any discussions at all with Mr. Marsh or the
representatives of Boston Financial about what was going on?

A
After I put up the 50,000 --

Q
Yes.

A
-- in April the 18th, I think it was.

Q
Yes.

A
And as time went on and I -- no assets were transferred from any of the parties
pursuant to the March 20th agreement and no monies had been advanced by any
third party other than the 25,000 by Boston.  I stated to Mr.
Wolrige
, Marsh, Mr. Buchan that as far as I was concerned
the March 20th agreement was at an end and that I was going to go forward as
best I could to salvage whatever could be salvaged from the agreement with
Cominco.

Q
Yes?

A
And I expected them to work with me to try and ensure that the payments, the
upcoming payments, would be forthcoming.  Being concerned in early May
that Boston may not perform, I put Mr. Marsh on notice that I was
concerned.  I then scrambled to try and raise the $50,000.

I had numerous conversations with all three --
Wolrige
,
Marsh and Buchan -- and with Barry Whelan as to evaluation, you know, how can
we get out of this if we go forward.  How can we -- where are we going to
find a purchaser to realize something so we can recover something from what
we've done.

[15]

As I read what Mr. Richards said, there
was no error in the judges understanding.  While the question Mr.
Richards was asked referenced the time after the second of the two $50,000
payments to Cominco were made, it is clear he was talking about the first
instalment.  He said he told Mr. Buchan and Mr. Marsh the Management
Agreement was at an end before he began looking for $50,000 to make the second
payment.  As he said, it was April 18 when he put up $50,000.
I am, in any event, unable to see what real difference the timing of Mr.
Richards statement to Mr. Buchan and Mr. Marsh might have had, whether it was
in April or after May 1990.  Certainly the date of the proposal he drew
for Mr. Buchan to purchase 10% of Moss Management, dated 18 May 1990, is more
consistent with the agreement being abandoned before then.

[16]

The Management Agreement was actually
never completed.  It referenced a Schedule C which was never drawn.
The Schedule was to have specified the shareholdings of the offshore company
that was to have held the ownership interest in the mill and
townsite
that was to be acquired.  The judge saw the
Management Agreement as essentially a work in progress toward a joint venture,
the terms of which were a matter for future consideration (
paras
.
313-314).  He found it difficult to accept the parties would agree to Mr.
Buchan having an ownership interest without making a tangible
contribution.  The agreement began to unwind when it became apparent to
Mr. Richards he would have to arrange the financing of the purchase of the
Cominco interest if the opportunity was to be preserved.  Whether Boston
Financial was to have paid the whole $800,000 price or, as Mr. Buchan says now,
only $675,000 of the price, it quickly became apparent a month after the
Management Agreement was signed the acquisition was not going to be made as had
been expected.  The Management Agreement was not completed.  It was,
as the judge found, accepted it would not be performed.

[17]

In any event, I am unable to see what the
understanding of Mr. Richards evidence has to do with the weight the judge
afforded to the proposal for Mr. Buchan to acquire a 10% interest in Moss
Management.  It largely puts an end to Mr. Buchans assertion he
considered he held an ownership interest in Moss Management by virtue of the
Management Agreement made a month earlier.  I can see no reason
Mr. Richards would have been drawing a proposal for Mr. Buchan to acquire
an interest in a company he now maintains he owned at the time.

[18]

I do not consider Mr. Buchan has shown
there to be any material misunderstanding of the evidence by the judge.

[19]

Mr. Buchan raises other evidentiary
concerns like the fact Mr. Richards and Mr.
Wolrige
charged Moss Management for their services, which they were entitled to do
under the Management Agreement.  But the most that can be said about
evidence like that, which Mr. Buchan says shows the agreement was being
performed, is that it is evidence which is not inconsistent with the agreement
being performed.  It does not follow that is what was happening.  Mr.
Richards and Mr.
Wolrige
were entitled to be
remunerated for their services to the company.  The evidence is at best
neutral.  Much the same is to be said about Moss Managements purchase of
331609 B.C. Ltd., to which Mr. Buchan points as performance under the
Management Agreement.  As the trial judge pointed out, the agreement did
not provide that 331609 B.C. Ltd. or any of its assets would be sold to Moss
Management.  This transaction had, in the end, nothing to do with
Mr. Buchan, in any event.  The judge found he had no ownership
interest in the numbered company.

[20]

On the argument advanced, I am unable to
see any error in the judges interpretation of the evidence.  There may be
some evidence that would be consistent with Mr. Buchans account of what
happened, but the judge took the view that what Mr. Richards testified had
occurred was to be accepted.  Mr. Buchans testimony may have been to the
contrary, but the judge found he could not rely on what Mr. Buchan said in
material respects.  No sound evidentiary basis is now shown for
interfering with the judges acceptance of Mr. Richards testimony.  The
judge has not been shown to have misinterpreted or ignored any evidence that
renders the acceptance of Mr. Richards account unsupportable.

[21]

Mr. Buchan raises two other grounds of
appeal.  He first argues the judge wrongfully held, in effect, the
Management Agreement was never formed because the acquisition of the mill and
the
townsite
was a condition precedent, citing
para
. 351 where the judge emphasized those assets were
never acquired.  I do not, however, consider the judges conclusion was
based on the acquisition of those assets being a condition precedent.  He
never used the term.  The judge determined the agreement was not performed
and was mutually abandoned.

[22]

Finally, Mr. Buchan contends the judge
erred in his conclusion that Mr. Richards and Mr.
Wolrige
owed no fiduciary obligations to Mr. Buchan that were breached.  He argues
they arose because the four parties to the Management Agreement were members of
a joint venture.  But he acknowledges the issue only arises if it is first
determined the judge erred in concluding the Management Agreement failed.
Given my view of that issue, it is not necessary I consider the question of any
fiduciary duties Mr. Richards or Mr.
Wolrige
may have
had.

[23]

Mr. Buchan does seek to add a fourth
ground of appeal to that advanced in his factum.  It has to do with two
individuals who did not testify at the trial.  From what Mr. Buchan has
said, I do not consider our entertaining the proposed ground now could affect
the disposition of the appeal.

[24]

I do consider Mr. Buchan has said all
that he can in his effort to persuade us a mistake has been made.  An
appellate court cannot retry this case and, for the most part, that is what it
appears Mr. Buchan would have us do.

[25]

It follows then, I would dismiss the
appeal.

[26]

SMITH J.A.
: I agree.

[27]

GROBERMAN J.A.
: I agree.

[28]

SMITH J.A.
: The appeal is dismissed.

(discussion with counsel)

[29]

SMITH J.A.
: We are not inclined to award special costs.
Costs will follow the event in the usual way.

The Honourable Mr. Justice Lowry

CORRECTION
 18 FEBRUARY 2009

The panel for this oral judgment should be:

The Honourable Mr. Justice
K. Smith

The Honourable Mr. Justice
Lowry

The Honourable Mr. Justice
Groberman