COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Smeltzer v. Merrison,

2012 BCCA 13

Date: 20120112

Docket: CA038695

Between:

Kelly Smeltzer

Appellant

(Plaintiff)

And

Krystal Merrison,
Jim Pattison Industries Ltd.
doing business as Jim Pattison Lease and
Craftsman Collision (1981) Ltd.

Respondents

(Defendants)

Before:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Neilson

On appeal from: Supreme
Court of British Columbia, December 3, 2010
(
Smeltzer v. Merrison
, Vancouver Docket M095170)

Counsel for the Appellant:

R. N. McFee, Q.C.

Counsel for the Respondents:

J. D. James

Place and Date of Hearing:

Vancouver, British
  Columbia

December 8, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 12, 2012

Written Reasons by:

The Honourable Mr. Justice Lowry

Concurred in by:

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Neilson

Reasons for Judgment of the Honourable
Mr. Justice Lowry:

[1]

Kelly Smeltzer was injured when the vehicles she and Krystal Merrison
were driving collided.  Her action for damages was tried before Mr. Justice
Stewart.  It was dismissed.  For reasons given orally, the judge found Ms.
Smeltzer was solely at fault; she had not discharged her onus of proving that
negligence attributable to Ms. Merrison caused the accident.  Ms. Smeltzer
appeals, contending the judge erred.  She says Ms. Merrison was solely at
fault.

The Accident

[2]

On November 16, 2007, Ms. Smeltzer turned south onto a two-lane road at
an intersection.  The road was divided by a solid yellow line.  She travelled
only 135 feet and then stopped to turn left, across the northbound lane, into a
parkade.  The driver of a truck proceeding north stopped and motioned to her to
make her turn in front of him.  There was then a gap between the truck and
vehicles backed up from the intersection ahead of it.  Ms. Merrison was
travelling north following two or three cars that were behind the truck.
Starting about 200 feet from the intersection, the northbound lane widened
(narrowing the southbound lane) to ultimately accommodate a second northbound
lane, marked with a white line about 95 feet in length, for vehicles turning
right at the intersection.  Cars were parked along the east side of the road.
Ms. Merrison was travelling at about the posted speed limit (50 kph) and
slowed.  She intended to turn right at the intersection so she proceeded to
pass the stopped cars and the truck ahead of her on their right, and the parked
cars on her right, to enter the marked turning lane.  Ms. Merrison would have
travelled no more than 100 feet before reaching the beginning of the white line
marking the right-turn lane, which was about 35 feet beyond the truck.  Ms.
Smeltzer proceeded with her turn past the front of the truck.  Neither she nor
Ms. Merrison saw each other before they collided.

The Judgment

[3]

The submissions before the judge focused on ss. 158 and 166 of the
Motor
Vehicle Act
, R.S.B.C. 1996, c. 318.  They provide:

158 (1) The
driver of a vehicle must not cause or permit the vehicle to overtake and pass
on the right of another vehicle, except

(a)  when the vehicle overtaken is
making a left turn or its driver has signalled his or her intention to make a
left turn,

(b)  when on a laned roadway there
is one or more than one unobstructed lane on the side of the roadway on which
the driver is permitted to drive, or

(c)  on a one way street or a
highway on which traffic is restricted to one direction of movement, where the
roadway is free from obstructions and is of sufficient width for 2 or more
lanes of moving vehicles.

(2)      Despite
subsection (1), a driver of a vehicle must not cause the vehicle to overtake
and pass another vehicle on the right

(a)  when the movement cannot be
made safely, or

(b)  by driving the vehicle off the
roadway.

* * *

119      ...

laned roadway
means a roadway or the part of a roadway that is divided into 2 or more marked
lanes for the movement of vehicular traffic in the same direction;

* * *

166      A driver
of a vehicle must not turn the vehicle to the left from a highway at a place
other than an intersection unless

(a)  the driver causes the vehicle
to approach the place on the portion of the right hand side of the roadway that
is nearest the marked centre line, or if there is no marked centre line, then
as far as practicable in the portion of the right half of the roadway that is
nearest the centre line,

(b)  the vehicle is in the position
on the highway required by paragraph (a), and

(c)  the driver has ascertained that the movement can be
made in safety, having regard to the nature, condition and use of the highway
and the traffic that actually is at the time or might reasonably be expected to
be on the highway.

[4]

The judge began by saying:

[7]        Counsels submissions focused to such an extent on
whether the plaintiff or the defendant or both were in violation of a provision
contained in the
Motor Vehicle Act
that I make it clear that I am alive
to the fact that the breaching of a statutory duty is not proof of negligence
and that the statutory duties imposed on these drivers  and any breaching of
them  can be taken into account in setting the standard of care or as evidence
of negligence, nothing more:
The Queen (Can.) v. Saskatchewan Wheat Pool
,
[1983] 1 S.C.R. 205; and
Jordison v. Graham
, 1999 BCCA 245 at paragraph
14.

[8]        I make it clear that I
have not lost sight of the
Motor Vehicle Act
sections brought to my
attention by counsel.  But because  as will become clear  I am dealing with a
de facto
lane of travel and not a laned roadway within the meaning of
the Act, it is only some of the sections that are of interest.

[5]

Citing this Courts decision in
MacLaren v. Kucharek
, 2010 BCCA
206 at para. 20, the judge found that at some point south of the commencement
of the white line marking the right-turn lane for the intersection, the road
must become a
de facto
two-lane road for northbound traffic.  He then
found a reasonable northbound driver would begin to treat the road as having
two such lanes several car lengths south of where the collision occurred and
found Ms. Merrison was in the
de facto
right lane proceeding
north because she intended to turn right at the intersection.

[6]

The judge found Ms. Smeltzer executed her left turn as a reasonably prudent
driver would except that she did not comply with s. 166 of the
Act
.
Having regard for the configuration and width of the road, she was negligent
because, having passed in front of the truck, she did not stop to verify it was
safe to proceed and, in particular, that the
de facto
lane was free of
northbound vehicles.  The judge found that it was her negligence that caused
the collision.

[7]

The judge said Ms. Merrison was the dominant driver; she had the right
of way.  He appears to have said s. 158 was not directly relevant.  He said
further there was no doubt Ms. Merrison passed the vehicles to her left
without taking reasonable steps to assure herself that the gap she ought
reasonably to have seen to her left was not present because a car was turning left.
But he said that does not mean Ms. Merrison should have become aware that the
driver of a left turning vehicle was in fact failing to give way to northbound
traffic in the
de facto
lane; and [that Ms. Merrison] had
sufficient opportunity to avoid the accident.  He then found Ms. Merrison
could not have avoided the collision short of slowing to a crawl or stopping
before passing the truck, which was not a duty the law imposes.  He concluded
it had not been established that Ms. Merrison was negligent.  I take him to
have meant negligent in a manner that caused the two vehicles to collide.

The Parties Positions

[8]

Ms. Smeltzer contends the judge erred in law in failing to have proper
regard for s. 158 of the
Act
, which she says prohibited Ms. Merrison
from passing the truck and the cars behind it on the right.  She maintains the
failure to respect the prohibition would lead to unpredictability and potential
chaos on the roads, citing
R. v. Dickson
, 2003 BCSC 437, 36 M.V.R.
(4th) 235 at paras. 9-11 and 13.  Ms. Smeltzer maintains the judges
references to the existence of a
de facto
lane in which
Ms. Merrison was said to be travelling in passing the cars on her right,
and his apparent reliance on
MacLaren
in that regard, were misplaced.
The
Act
makes no provision for such and it does not justify the way in
which Ms. Merrison proceeded.  Ms. Smeltzer says it was Ms. Merrisons breach
of the
Act
, coupled with her failure to maintain a proper lookout ahead
and to her left, that were the cause of the collision.  Had she not passed on
the right in contravention of the
Act
, Ms. Smeltzers left turn
would have been safely made.  Ms. Smeltzer says further she can in no way be
faulted for not having seen Ms. Merrisons car approaching because she was
entitled to assume other drivers, like Ms. Merrison, would adhere to the rules
of the road and not pass on the right, citing
Salaam v. Abramovic
, 2010
BCCA 212, 4 B.C.L.R. (5th) 117 at para 25.

[9]

Finally, and in any event, Ms. Smeltzer says, even if Ms. Merrison was
in the circumstances entitled to pass on the right, by failing to keep a proper
lookout, she exercised her right of way in a manner that resulted in a
collision that, by keeping a proper lookout, she could reasonably have avoided,
and accordingly bears some if not all of the fault for what happened, citing
Walker
v. Brownlee
, [1952] 2 D.L.R. 450 (S.C.C.) at 460-61.

[10]

Ms. Merrison maintains s. 158(1)(b) permits one vehicle to pass another
on the right when it is travelling in an unobstructed lane, citing
Kerslake
v. Kim
, 2008 BCCA 220, and
Dickson
,
supra
, at paras. 8-11.  She
says the judge made no error in finding she was travelling in a
de facto
lane such that she was permitted to pass the cars she did on the right.
Relying on
MacLaren
, which recognized the existence of
de facto
lanes in what are said to be essentially the same circumstances in material
respects, Ms. Merrison contends the distance from where the northbound lane
widened to the beginning of the white line marking the turning lane (about 100
feet) was a
de facto
lane.  It is, she says, essential that it be
recognized as such.  A right-turning northbound vehicle is prohibited from
crossing the white line marking the right-turn lane, citing
Stulec v.
Johnson
, 2000 BCSC 584, 3 M.V.R. (4th) 295.  Hence, a right-turning vehicle
must be aligned with the right-turn lane some distance before reaching it.  Of
necessity, such a vehicle must travel some distance in what is an unmarked
de
facto
lane leading to where the white line marking the right-turn lane begins.
It must then be accepted there may be vehicles travelling side-by-side in
de facto
lanes.  This is especially the case where, as here, traffic may be backed up in
one of the lanes.  The length of a
de facto
lane becomes a question of
fact in any given circumstance.

[11]

Ms. Merrison then contends the judge made no error in finding Ms.
Smeltzer was solely at fault.  She was turning across a solid yellow line to
leave the road as permitted by s. 166 but failed to ascertain her left turn
could be executed safely and without unreasonably affecting the travel of
another vehicle.  Ms. Merrison relies, by analogy, on the decisions of this
Court in
Pacheco (Guardian ad litem) v. Robinson
(1993), 75 B.C.L.R.
(2d) 273 (C.A.), and
Dhah v. Harris
, 2010 BCSC 172, with respect to left-turning
drivers at intersections having to give way to vehicles having the right of way,
as she maintains she had.  Further, relying on
Haase v. Pedro
(1970), 21
B.C.L.R. (2d) 273, Ms. Merrison says Ms. Smeltzer did not discharge the onus
she bore of proving Ms. Merrison could, by the exercise of reasonable care,
have avoided the accident such that the judges determination in that regard
cannot now be disturbed.

[12]

The primary
question on which the appeal turns is the extent to which s. 158 of the
Act
applies.
D
id it prohibit Ms. Merrison from proceeding to pass on
the right as she did and, if so, did her breach of the statute cause the
collision?

Discussion

[13]

Dickson
, an appeal of a cyclists conviction for passing on the
right, contains the most complete discussion of s. 158 to which we are
referred.  I would respectively endorse what was said there.  Section 158(1)
prohibits one vehicle passing another on the right: The driver of a vehicle
must not cause or permit the vehicle to overtake and pass on the right of
another vehicle...  There are only three exceptions.  Essentially, passing on
the right is permitted when the overtaken vehicle is turning left, when passing
on a laned roadway, or when passing on a one-way street where room permits.  A
laned roadway is defined.  It means a road that is divided into two or more
marked lanes for vehicles proceeding in the same direction.  The exceptions are
qualified by subsection (2) which prohibits any passing on the right when it
cannot be done safely or by driving off the road.

[14]

Despite the recognition of a
de facto
lane in
MacLaren
, I
do not consider the concept can afford any further exception to the three for
which s. 158(1) provides.  In
MacLaren
, a cyclist was injured at an
intersection which he entered passing on the right of vehicles where there was
what was said to be a
de facto
lane to his right, being a widened part
of the road that accommodated vehicles turning right, but was not marked.  He
was faulted for riding between two lanes instead of positioning himself between
the vehicles he passed on the right.  It was specifically said (at para. 28)
that no determination was being made with respect to whether s. 158 permitted
the cyclist to pass on the right.

[15]

I am unable to accept that s. 158(1)(b) permitted Ms. Merrison to pass
two or three cars and the truck on the right as she contends.  The exception is
confined to passing on the right where there are two marked lanes for vehicles
proceeding in the same direction and only then when passing can be undertaken
in safety.  Here, there was only one such lane regardless of whether there was
what might be called a second
de facto
lane.  I recognize this means
drivers proceeding to turn right at the intersection, as Ms. Merrison was,
could not align their vehicles to enter the 100-foot marked lane until it was
virtually reached, if there were vehicles ahead in the through lane that were
not turning left, but that is what the
Act
provides and it appears to me
to be with good reason.  If it were otherwise, drivers would be entitled to
pass on the right wherever the road is sufficiently wide for two vehicles to
pass.  Drivers do not expect to be passed on the right when they are not
travelling on a road with more than one designated lane.  They generally expect
to be able to turn off of the road to their right, whether into intersecting
streets or driveways, or to pull over to the side of the road or off the road
altogether without being obstructed by vehicles passing to their right.

[16]

As quoted from his reasons, the judge said that, while he had not lost
sight of the provisions of the
Act
, he was concerned with a
de facto
lane of travel, not a laned roadway within the meaning of the
Act
such
that only some of the sections were of interest.  I am unable to accept he was
correct in law to consider Ms. Merrison passing on the right was not
prohibited by s. 158, as it appears he did, on that basis.  As the judge said,
she was not travelling in a laned roadway within the meaning of the
Act
:
s. 158(1)(b) did not apply.  If she entered a
de facto
lane, meaning the
road became wide enough to permit her to pass the cars and the truck ahead of
her on the right, she was, in the circumstances, prohibited from passing them.
She was required not to pass the vehicles in front of her until she entered the
marked right-turn lane.

[17]

I consider Ms. Merrison was negligent in passing the three cars and the
truck on the right in contravention of s. 158.  She was negligent because it was
reasonably foreseeable that passing on the right, in contravention of a
statutory prohibition, could be dangerous to other motorists on the road.  Her
negligence was, on what the judge said, compounded by her failure to proceed
cautiously while maintaining a proper lookout.  Had Ms. Merrison not proceeded
to pass on the right as she did, the collision would not have occurred.  It
follows that her negligence was a cause of the accident and the injury Ms.
Smeltzer suffered.

[18]

It remains to consider how the legal error identified alters the judges
conclusion that Ms. Smeltzer was herself negligent such as to cause the injury
she suffered.  The judges finding in that regard was premised on Ms. Merrison
having been entitled to proceed to pass on the right as she did in approaching
the point where the collision occurred.  Given she was prohibited from
proceeding in that way, the question becomes whether Ms. Smeltzer can still be
faulted for what happened and, if so, to what extent.

[19]

In
Salaam
, this Court found a defendant driver who had the right
of way at an intersection negligent for having failed to take the steps it was
said a reasonable driver would have taken in the circumstances to avoid a
collision once it became apparent the plaintiff, who bore the greater
proportion of fault, was not yielding as required.  In reviewing the governing
authorities and drawing in particular on what is often cited from
Walker v.
Brownlee
,
supra
, Cartwright and Locke JJ. concurring at 460-461, the
following was said:

[25]  A driver like the
defendant, who is in a dominant position, will not typically be found to be
liable for an accident. Drivers are generally entitled to assume that others
will obey the rules of the road. Further, though defensive driving and
courteous operation of motor vehicles are to be encouraged, they do not
necessarily represent the standard of care for the purposes of a negligence
action. A driver will not be held to have breached the standard of care simply
because he or she failed to take extraordinary steps to avoid an accident or to
show exceptional proficiency in the operation of a motor vehicle.

[20]

While that general principle may apply where the driver of a vehicle
fails to give way to another which has the right of way in circumstances where
each driver was or ought to have been aware of the others vehicle, I do not
consider it serves to relieve a driver in Ms. Smeltzers position from
complying with the provisions of the
Act
as is now contended.  Section
166(c) required her to ascertain whether her left turn across the northbound
lane could be made safely.  It could not.  Had she done what was required of
her, the collision would not have occurred.

[21]

This is not a case where it is suggested Ms. Smeltzer was required to
take exceptional steps to avoid an accident or show exceptional proficiency.
She was turning left, other than at an intersection, over a solid yellow line
to leave the road.  Her doing so was governed by s. 166(c).  She was not to
turn without making certain it was safe to do so having regard for the nature,
condition and use of the road and the traffic that actually was or might
reasonably be expected to be on the road.

[22]

Ms. Smeltzer may not have expected a vehicle would proceed toward the
right-turn lane as Ms. Merrison did.  However, given the width and
configuration of the road with the right-turn lane beginning a short distance
to her left, the traffic with which she was confronted, the parked cars, and
the limitation on what she could see, I consider it to have been incumbent on
Ms. Smeltzer to inch her way over the solid line and past the truck, as
drivers do, until she could see there was no obstacle to her completing her
turn  no car was in fact approaching in a manner she did not expect  rather
than turning blindly in front of the truck and proceeding as she did.  She
could easily have done this and the collision would have been avoided.  In the
result, Ms. Smeltzer bears a measure of fault for the injury she suffered.

[23]

This accident happened because neither driver saw the other before they
collided.  That was because both proceeded in a manner that contravened the
provisions of the
Act
: Ms. Merrison breached s. 158 and Ms.
Smeltzer breached s. 166.  Ms. Merrison could not see Ms. Smeltzers
vehicle while she was wrongfully passing the cars and the truck ahead of her on
the right and she was not looking where she should have been; Ms. Smeltzer
could not see Ms. Merrisons car while her vision was obstructed and she did
not take steps to ascertain her turn could be safely made.  I do not consider
it is possible to establish different degrees of fault in the circumstances of this
case such that in accordance with s. 1 of the
Negligence Act
,
R.S.B.C. 1996, c. 333, liability is to be apportioned equally.

Disposition

[24]

I would allow the appeal, set aside the judges order, and replace it
with an order declaring Ms. Merrison to be liable for 50% of Ms. Smeltzers
injury and consequent loss.

The Honourable Mr. Justice Lowry

I agree:

The
Honourable Mr. Justice Frankel

I agree:

The
Honourable Madam Justice Neilson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Gichuru v. Smith,

2012 BCCA 20

Date: 20120113

Docket: CA037946

Between:

Mokua Gichuru

Appellant

(Plaintiff)

And

Howard Smith and Howard Smith Personal
Law Corporation, both doing business as Howard Smith & Company

Respondents

(Defendants)

Before:

The
  Honourable Madam Justice Newbury

The
  Honourable Madam Justice Bennett

The
  Honourable Madam Justice Garson

On appeal from the Supreme Court of
British Columbia, (
Gichuru v. Smith

2010 BCSC 234, New Westminster
Registry, Docket S123626)

Acting on
  his own behalf:

M. Gichuru

Counsel for
  the Respondents:

V. Milne

K. Paul

Place and
  Date of Hearing:

Vancouver, British Columbia

June 18, 2010

Written
  Submissions Received:

November 3, 8 & 16, 2011

Place and
  Date of Judgment:

Vancouver, British Columbia

January 13, 2012

Written
  Reasons by:

The
  Honourable Madam Justice Newbury

Concurred
  in by:

The
  Honourable Madam Justice Bennett

The
  Honourable Madam Justice Garson

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

The division that heard the appeal in this matter have had an
opportunity to review counsels most recent submissions made in response to Ms.
Jordans letter to counsel of October 27, 2011. We are  of the view that
the form of draft order is appropriate, with the exceptions that :

(a)

The third paragraph
on the second page should read:

AND
THIS COURT FURTHER ORDERS that the lump sum costs award is set aside and that
an award of party and party costs in any event of the cause, to be assessed and
paid in the usual way, be substituted therefor;

(b)

The penultimate
paragraph should read:

AND THIS COURT FURTHER ORDERS that the
respondents return forthwith to the Appellant the $1800  paid previously
to the Respondents.

[2]

The division wishes also to clarify that our intention was that counsel
for the respondents was to repay the $1800 immediately to Mr. Gichuru, without attempting
to set-off any other amount to which the respondents might become entitled in
respect of costs.  Accordingly, the amount remaining set off or unpaid is
now to be paid to Mr. Gichuru.

The Honourable Madam Justice Newbury

I Agree:

The
Honourable Madam Justice Bennett

I Agree:

The Honourable Madam Justice Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Giza v. Sechelt School Bus Service Ltd.,

2012 BCCA 18

Date: 20120113

Docket: CA039042

Between:

Raymond Giza

Appellant

(Plaintiff)

And

Sechelt School Bus
Service Ltd., Randy Gould

Respondents

(Defendants)

Before:

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Mackenzie

The Honourable Mr. Justice Chiasson

On appeal from:
Supreme Court of British Columbia, April 21, 2011
(
Giza v. Sechelt School Bus Service Ltd. and Gould
, 2011 BCSC 669,
Vancouver Docket No. S101387)

Appellant appearing in person

Counsel for the Respondent:

J.W. Rowe

Place and Date of Hearing:

Vancouver, British
  Columbia

November 2, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 13, 2012

Written Reasons by:

The Honourable Mr. Justice Chiasson

Concurred in by:

The Honourable Mr. Justice Hall
The Honourable Mr. Justice Mackenzie

Reasons for Judgment of the Honourable
Mr. Justice Chiasson:

Introduction

[1]

This appeal considers the legal effect of an employers termination of an
employees contract of employment with inadequate notice as well as the effect
of the employees failure to work during the notice period given.  Also
considered is whether this Courts decision in
Macaraeg v. E Care Contact Centers
Ltd.
, 2008 BCCA 182, 77 B.C.L.R. (4th) 205

extends to a claim for
unpaid holiday pay, requiring the appellant to pursue that claim under the
Employment
Standards Act
, R.S.B.C. 1996, c. 113

and not in a court action.

[2]

From September 2004 until September 2009, the appellant was employed as
a bus driver by the respondent Sechelt School Bus Service Ltd. (referred to
herein as the respondent).  On September 30, 2009, the respondent terminated the
appellants employment, providing him with approximately five weeks notice.
The trial judge described the circumstances of the termination at para. 20 as
follows:

September 30, 2009 was the last workday in
September and was payday. Mr. Gould left a number of items clipped
together on the seat of the bus Mr. Giza was to drive. The items included
Mr. Gizas paycheque, a statement of the hours for which he was paid, and
a letter. The payment to Mr. Giza was based on $17.50 per hour. The letter
stated as follows:

This letter will serve as your official notice of
Termination of Employment with the Sechelt School Bus Service Ltd. as of
November 6, 2009. You will be given your final pay cheque that day and a
Record of Employment will follow within the prescribed period.

As required by the
Employment Standards Act
, Part B,
Termination of Employment, we are giving you just over 5 weeks notice as
compensation for your length of service. Your start date was September 28,
2004. Attached is the related excerpt from the
Act
for your reference.

Good luck in your future endeavors.

[3]

When the appellant had read the letter, he drove his bus back to the respondents
terminal and left work permanently.

[4]

The trial judge held that five weeks notice was inadequate, but that
the appellant repudiated his employment contract by failing to work after
notice was given and was not entitled to damages.

Background

[5]

In 2007, the respondent Randy Gould and his wife purchased the
respondent Sechelt School Bus Service Ltd.  They continued the existing
practice of not paying statutory holiday pay, in contravention of the
Employment
Standards Act
.

[6]

In late June 2009, Mr. Gould met with the appellant.  They do not agree
on what was said at this meeting.  The appellant asserts that the respondent
agreed to increase his wage rate by $1.00 per hour to $18.50 per hour, effective
in September 2009.  Mr. Gould contends that he agreed only to consider a wage
review in the autumn and that the parties discussed aspects of the appellants
behavior which Mr. Gould considered to be inappropriate.

[7]

In September, the appellant was assigned a different route, which
increased his working time in the afternoon by 30 minutes.  He wanted his bus
to leave the school at 3:15 p.m. in order to facilitate a connection.  School
administrators wanted the bus to leave at 3:25 p.m.  The appellant contends
that Mr. Gould agreed to a 3:15 p.m. departure.  Mr. Gould denies this.

[8]

The appellant spoke to school officials about the departure time.  Mr.
Gould felt this was inappropriate.  The respondent decided to terminate the
appellant, a decision which led to the September 30, 2009 letter.

[9]

The appellant claimed holiday pay in proceedings under the
Employment
Standards Act
which he subsequently withdrew.

[10]

This action was commenced on February 25, 2010.  The appellant alleged that
he was wrongfully dismissed.  The respondent denied that the appellant was
dismissed and asserted that he was terminated with notice.

The trial judgment

[11]

At para. 36 of her reasons, the judge quoted from this Courts decision
in
Zaraweh v. Hermon, Bunbury & Oke,
2001 BCCA 524, B.C.L.R. (3d)
223 at para. 14:

The common law provides that, in
cases of indefinite hiring without written contract establishing terms of
dismissal, an employer may terminate the employment without cause by giving
reasonable notice to an employee that the employment will terminate. During
this time the employee is required to work and to conduct himself or herself in
a fashion compatible with the employment relationship.

[12]

At para. 39, the judge had this to say:

In this case, the 5 weeks of
notice was not adequate. [The respondent] breached the employment contract by
giving Mr. Giza too little notice. The legal effect of giving inadequate
notice depends on all the facts.

[13]

The judge concluded that Mr. Gould had not intended to repudiate the
employment contact and that he mistakenly had believed that the statutory
notice period would suffice.  She held that the respondent did not in law
repudiate the employment agreement (para. 40).  The judge then turned to the
failure of the appellant to work during the notice period, stating at paras. 41
 42:

I quote now from the reasons for judgment of
Hutcheon J.A., writing for the Court of Appeal, in
Suleman v. B.C.
Research Council
(1990), 52 B.C.L.R. (2d) 138 at 142:

In other words, the contract of employment is not terminated
until the end of the notice period and during that period the employer has the
right to the services of the employee. It follows that the employee must remain
ready and willing to carry out the contract of service ...

Here, Mr. Giza left
immediately after receiving the termination notice. He did not return to work.
Unless [the respondent] constructively dismissed him, Mr. Giza repudiated
the employment agreement, or in other words, quit.

[14]

The judge then considered whether the respondents conduct amounted to a
constructive dismissal of the appellant, noting that the latters position was
that it would have been intolerable to continue to work for the respondent.

[15]

The judge observed at para. 46 that the fact the respondent gave notice
of termination does not establish constructive dismissal because the respondent
was entitled to give reasonable notice.

[16]

The judge accepted Mr. Goulds evidence about discussions with the
appellant, finding that Mr. Gould had raised complaints about the appellants
conduct and had agreed only to consider a raise in the autumn (paras. 12 and
48).  She rejected the argument for constructive dismissal and stated at para.
53:

Objectively, there is no reason
why Mr. Giza could not have continued to work through the period of
reasonable notice. Mr. Giza failed to do so, and as a result, quit his
employment before it ended. Therefore, he is not entitled to damages for
wrongful dismissal.

[17]

The judge then addressed the appellants claim for damages for manner of
dismissal.  She stated at para. 59:

The Record of Employment Form
completed by SSBS gives reason M as the reason for issuing the ROE. The
explanation of the code on the back of the form shows that M refers to
dismissal. There is nothing in the description of the codes on the back of
the form which distinguishes between dismissal for cause and dismissal by
giving working notice. This form does not establish any dishonesty by SSBS in
the manner of the dismissal.

[18]

The judge considered the appellants contention that Mr. Gould had falsely
told him that the school had agreed to his proposed earlier departure time in
order to create an incident which would give the respondent a basis for
dismissing him.  The judge preferred the evidence of Mr. Gould on this point.
She stated that there may have been a misunderstanding about the departure time,
but that the appellant was not dismissed.  His employment was terminated with
notice.

[19]

The judge concluded at para. 62:

SSBS did not act unfairly or in
bad faith in connection with dismissing Mr. Giza.  As a result, Mr. Gizas
claim for such damages must be dismissed.

The claim for punitive damages also was dismissed.

[20]

The judge held that she could not order statutory holiday pay, citing this
Courts decision in
Macaraeg,
which held that rights conferred by the
Employment
Standards Act
can be enforced only through the mechanisms in that
Act
.

[21]

The judge dismissed the appellants case.  She awarded the defendant costs
in the amount of $500.00, being his out-of-pocket expenses for dealing with
this matter (para. 97).  This appears to be an award of costs in favour of Mr.
Gould only.  The entered order states simply, [c]osts to the Defendant.

Positions of the parties

[22]

The following are the errors of the trial judge alleged by the appellant
in his factum:

1.         The judge erred at [42] by ruling
that by declining to work the five week notice at termination, the plaintiff
had repudiated the contract, and thus had lost his right to sue  for reasonable
notice.

2.         The judge erred at [37] by
confusing the discharge provision under the Employment Standards Act regarding
the earned benefit owed to the plaintiff with the requirement to provide
reasonable notice at common law.

3.         The judge erred at [40] by ruling
that the five week notice was an honest misapprehension of the defendant to
provide reasonable notice at common law and accordingly, the defendant was
freed of this obligation.

4.         The judge erred at [45] by ruling
that only a fundamental change in the contract, amounting to constructive
dismissal, would free the plaintiff from responsibility of working the notice
period. A constructive dismissal occurs with any reduction in wages during a
notice period at termination. In addition, responsibility to work the notice
period must also take into account the non-tangible elements of the working
relationship  in this case the breach of trust by the defendant.

5.         The judge erred under the Charter
at [41] and [42] by ruling that there was an obligation on the plaintiff to
work the notice period. In a free society no one is required to work for
another against their will save a declaration of war or essential service by
statute.

6.         The judge erred at [75] by ruling
that rights in the Employment Standards Act can only be enforced through that
Act and not through a civil action.

7.         The judge misstated, ignored, and overlooked evidence and
failed to arrive at the truth of the matter.  In order to provide context,
these matters are specifically identified in part 3.

[23]

The respondents join issue with the appellants allegations.

Discussion

Effect of the termination
and the appellants failure to work thereafter

[24]

I begin by addressing a possible inconsistency in the judges reasons.  At
para. 39, she held that the notice given by the respondent was inadequate.  At
para. 46, she observed that the respondent was entitled to give reasonable
notice and that it gave
such
notice [emphasis added].

[25]

I do not think the perceived inconsistency is of consequence.  In my
view, the judge correctly concluded at para. 39 that the notice period was
inadequate.  She went on to consider whether there had been a constructive
dismissal and her comment in para. 46 was made in that context.  I interpret
her statement as merely confirming that an inadequate notice period does not
result automatically in constructive dismissal.

[26]

I do not agree with the judges conclusion at para. 53 that by failing
to work during the notice period, the appellant lost his entitlement to
reasonable notice or damages in lieu thereof.

[27]

This Court in
Zaraweh v. Hermon, Bunbury & Oke
made it clear
that an employee terminated with notice is required to work during the notice
period (para. 14.).  Saunders J.A. referred to this Courts decision in
Suleman
v. British Columbia Research Council
(1990), 52 B.C.L.R. (2d) 138, 24
A.C.W.S. (3d) 508, in which Mr. Justice Hutcheon observed at p. 141 that,
subject to conduct by the employer  amounting to constructive dismissal,

... the contract of employment is
not terminated until the end of the notice period and during that period the
employer has the right to the services of the employee.  It follows that the
employee must remain ready and willing to carry out the contract of service.

[28]

Whether the employers conduct amounts to constructive dismissal is a
question of fact.  In
Zaraweh,
Saunders J.A. observed at para. 31 that:

Provision of inadequate notice
may constitute repudiation of the contract.  Whether it does or not is a
question of fact, to be resolved on the evidence of the circumstances
accompanying the provision of the notice.

[29]

In the present case, the trial judge held that the respondents conduct
did not constitute constructive dismissal.  This Court must give deference to
that finding of fact.  In my view, the judges conclusion is amply supported by
the evidence.

[30]

Although the appellant challenges many of the judges conclusions, they
must be respected if there was evidence to support them.  The judge was
entitled to accept some, all or none of the testimony of the parties.  The fact
that she preferred testimony with which the appellant disagrees is not a basis
on which this Court may interfere.

[31]

The testimony of both the appellant and Mr. Gould established that they
had had discussions regarding the appellants conduct and attitude.

[32]

The appellant relied on a statement in an October 5, 2009 letter from
the respondent to the appellant that [d]ue to your termination of employment
on September 30, 2009, you were not given an increase in pay as showing that
there had been an agreement his pay would be increased (Appeal Record at p. 6).
The letter was appended to the respondents statement of defence and as such
could be an admission against interest, subject to determining the meaning of
the comment and the weight to be given to it.

[33]

At the hearing of the appeal, we were informed that the October 5, 2009
letter was a draft and was not sent to the appellant.  Under cross-examination
at trial, Mr. Gould flatly denied agreeing to a pay raise, stating, I
wouldnt give anybody a raise that acted like you did.

[34]

There was no specific date by which Mr. Gould had agreed to consider an
increase in the appellants wage rate.  In context, I read the comment in the
October 5, 2009 letter as stating merely that consideration of a wage rate
increase became irrelevant or moot with the termination of the appellant.

[35]

As to the allegation that Mr. Gould showed the appellant a schedule with
a start time of 3:15 p.m., Mr. Gould testified that the schedule he had shown
the appellant was from a previous year and served merely to illustrate the
route and that on September 9, 2009 he had told the appellant that the
departure time was 3:25 p.m.

[36]

Mr. Gould purposely determined not to dismiss the appellant.  Under
cross-examination by the appellant, he testified that the decision to terminate
the appellant was based on an accumulation of problems, and that none of the
incidents on their own were cause for dismissal.  The triggering event was a
telephone call by Mr. Gould to the appellant at his home on the evening of
September 21 or 22, 2009 in which Mr. Gould instructed the appellant not to
leave at the school at 3:15 p.m., but to do so at 3:25 p.m.  The appellant
became argumentative.  This telephone conversation and the fact the appellant
had dealt directly with the school on the departure timing issue resulted in
the decision to terminate him.

[37]

Under cross-examination, Mr. Gould explained that he did not think
leaving the letter of termination in the bus for the appellant was harsh
because it was not an immediate termination, but working notice; he stated, I
expected you to continue and confirmed his belief that the appellant would
simply just carry on and finish working for [the respondent] during the
five-week notice period.  He denied that the respondent was attempting to avoid
severance pay, stating that we offered the five weeks 'cause we hoped you
[sic] take the five weeks and still work.  Immediately after deciding the
appellant should be terminated, Mr. Gould contacted the Employment Standards
Branch to ascertain what period of notice would be appropriate.

[38]

The respondent hired someone on a temporary basis during the notice
period.  This suggests it kept open the appellants opportunity to work.

[39]

In my view, it is clear that the respondent did not constructively
dismiss the appellant and that the appellant repudiated the employment contract
by failing to work during the notice period.  In classic terms, he evidenced an
intention not to be bound by the contract, but that did not deprive him of his
right to damages for the respondents breach of contract in giving him
inadequate notice.

[40]

In
Zaraweh
, Saunders J.A. stated at paras. 35 and 36 that

... the breach of contract by provision of inadequate notice
gave Ms. Zaraweh a cause of action for damages although it did not constitute a
repudiation ... .  The entitlement to sue did not die with Ms. Zarawehs
repudiation of the employment relationship.

...

... Ms. Zaraweh was entitled to ...
damages based on the difference between the notice provided ... and the period
of reasonable notice ... .

[41]

In
Hadcock v. Georgia Pacific Securities Corp.
,

2006 BCCA
536, 64 B.C.L.R. (4th) 308 at para. 48 this Court, relying on the Supreme Court
of Canadas decision in
Guarantee Co. of North America v. Garden Capital
Corp.
,

[1999] 3 S.C.R. 423, explained that although repudiation ends
the ongoing rights and obligations of parties under a contract, it does not
affect rights and obligations that have accrued.  In the present case, the
appellants right to damages in lieu of reasonable notice had accrued when he
was given inadequate notice.  His repudiation did not take away that right and
it did not take away the right of the respondent to the appellants services
during the period of notice given.

[42]

In summary:

1.       the respondent breached its
contract of employment by failing to give adequate notice of termination;

2.       the respondents conduct did
not amount to a constructive dismissal, that is, a repudiation by the
respondent of the employment relationship; it continued during the notice
period;

3.       the respondents  breach
gave the appellant a cause of action for damages in lieu of reasonable notice;

4.       the period of reasonable
notice for which damages could be recoverable is the period of reasonable
notice to which the appellant was entitled less the period of notice actually
given during which the appellant could have and should have worked and been
paid;

5.       the appellants failure to
work during the notice period was a repudiation that brought to an end the
employment relationship and the ongoing rights and obligations of the parties
under it;

6.       that repudiation did not take
away the appellants cause of action for damages in lieu of notice or the
respondents right to have the appellants services during the notice period
that was given because those rights had accrued before the repudiation.

Remedy

[43]

Although the trial judge held that the notice period given by the
respondent was inadequate, she did not determine what notice would have been
reasonable because she concluded that the appellant was not entitled to
damages.

[44]

I do not think it is in the interests of justice to remit this matter to
the trial court to determine the appropriate period of reasonable notice.  This
Court should do so.

[45]

The seminal enunciation of what length of notice is reasonable at
common law derives from
Bardal v. The Globe & Mail Ltd.
(1960), 24
D.K.R. (2d) 140 (Ont. H.C.J.) at 145, in which McRuer C.J. held that

[t]here can be no catalogue laid
down as to what is reasonable notice in particular classes of cases.  The
reasonableness of the notice must be decided with reference to each particular
case, having regard to the character of the employment, the length of service
of the servant, the age of the servant and the availability of similar
employment, having regard to the experience, training and qualifications of the
servant.

This test was adopted by,
inter alia
, McEachern
C.J.S.C. in
Ansari v. B.C. Hydro

(1986), 2
B.C.L.R. (2d) 33
.

[46]

An examination of cases reasonably comparable to the present case
suggests that the appropriate range of notice is somewhere between three and 11
months.  There obviously is considerable variability.

[47]

At the time the contract of employment was terminated, the appellant was
61 years of age.  He had been employed by the respondent for approximately five
years.  He had worked previously as a professional forester, but the
availability of forestry work had diminished by the time he left this industry
and began working as a school bus driver.  The appellant has had little success
in obtaining alternative employment.

[48]

The appellant seeks nine months notice.  In my view, reasonable notice
in this case would have been six months.  For the purpose of calculating
damages, the period of actual notice during which the appellant could have
worked and been paid must be deducted.  I would calculate damages based on a
notice period of five months.

[49]

The trial judge held that the in the year prior to his termination the
appellant earned $1,938 per month.  In my view, the appellant is entitled to
$9,690 (5 x $1,938).

Punitive damages

[50]

The trial judge correctly stated the law applicable to an award of
punitive damages and found no basis on which such an award would be appropriate
in this case.  In part, this finding was based on her conclusion that there had
been no wrongful dismissal, contrary to the appellants position.

[51]

The judge carefully considered the evidence of the parties and preferred
that of Mr. Gould, as she was entitled to do.  I see no basis on which this
Court could interfere.

Holiday pay

[52]

I agree with the judge that this Courts decision in
Macaraeg
is
a complete answer to the appellants claim for statutory holiday pay.  In
Macaraeg
,
this Court concluded that the
Employment Standards Act
contained a
complete procedure for enforcing rights granted by that legislation.  In the
context of this case, holiday pay is such a right.

Costs

[53]

Rule 14-1 (10) of the
Rules of Court
states:

A plaintiff who recovers a sum
within the jurisdiction of the Provincial Court under the
Small Claims Act
is not entitled to costs, other than disbursements, unless the court finds that
there was sufficient reason for bringing the proceeding in the Supreme Court
and so orders.

(This rule is identical to the former Rule 57(10).)

[54]

The monetary jurisdiction of the Small Claims Court is for claims of $25,000
or less (
Small Claims Court Monetary Limit Regulation,
B.C. Reg.
179/2005).  In total, the appellant claimed $41,190, comprising $18,315 for
nine months pay in lieu of notice at $2,035 per month, $20,000 for punitive
damages and $2,875 for statutory holiday pay.

[55]

The per-month sum was based on a $1.00 per hour wage raise, which the
judge rejected.  I agree that the appellant is entitled to pay in lieu of
notice, but do not accept the appellants claimed duration.  I also have concluded
that as a matter of law, the period of notice the appellant was given must be
deducted from the time for which he is entitled to pay in lieu of notice.

[56]

The statutory holiday pay claim is not sustainable in light of this
Courts decision in
Macaraeg
.

[57]

Although the monetary amount advanced by the appellant in his statement
of claim exceeded the jurisdiction of the Small Claims Court, in my view, there
was not sufficient reason to bring these claims in the Supreme Court at the
time they were initiated.

[58]

In addition, I am mindful of the trial judges discretionary disposition
of costs in awarding the respondent out-of-pocket expenses only.  Exercising my
discretion, in my view, in the interests of justice an award of disbursements
only is a fair disposition in this matter, taking into account the monetary
award recovered and the mixed success of the parties on the components of the
appellants claim.

[59]

I would award the appellant his allowable disbursements in this Court
and in the Supreme Court against the respondent Sechelt School Bus Service Ltd.

Conclusion

[60]

I would allow this appeal, set aside the order dismissing the
appellants claim and awarding costs to the respondent and enter judgment in
favour of the appellant against the respondent Sechelt School Bus Service Ltd.
in the amount of $9,690.

[61]

The appellant is entitled to his allowable disbursements in this Court
and in the Supreme Court.

[62]

There is no basis in the evidence for judgment against Randy Gould
personally and I would dismiss the action against him without costs.  His participation
was required by the corporate defendant and was not increased by reasons of the
personal action against him.

The Honourable Mr. Justice Chiasson

I agree:

The
Honourable Mr. Justice Hall

I agree:

The Honourable Mr. Justice
Mackenzie


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Modonese v. Delac,

2012 BCCA 21

Date: 20120113

Docket: CA038832

Between:

Helena Modonese

Respondent

(Plaintiff)

And

Marko Delac,
Executor of the Will of Regina Delac,
The Estate of Regina Delac, and Marko Delac

Appellants

(Defendants)

Corrected Judgment:
Counsels name was corrected on

January
24, 2012

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice K. Smith

The Honourable Mr. Justice Tysoe

On appeal from the
Supreme Court of British Columbia, January 25, 2011
(
Modonese v. Delac
, 2011 BCSC 82, Chilliwack Registry S16867)

Counsel for the Appellants:

L.F. Tungohan

Counsel for the Respondent:

D. MacAdam, Q.C.

J. Meyer

Place and Date of Hearing:

Vancouver, British
  Columbia

December 2, 2011

Written Submissions Received:

December
  16, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 13, 2012

Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Mr. Justice K. Smith

The Honourable Mr. Justice Tysoe

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

The division that heard this appeal on December 2, 2011 has had an
opportunity to review counsels submissions, both received December 16, 2011.  Counsel
had been invited to make submissions regarding costs.

[2]

The submission made by counsel for the appellant did not deal with costs
but seeks to re-open the case on the basis of interventions made by the trial
judge during trial.  It is said the judge ignored evidence presented
by the appellant, that he misconceived the evidence, and did not conduct a
meticulous examination of facts.  At the hearing of this appeal, counsel
had not provided this court with a transcript of the trial in full and was
asked to provide a list of pages where he alleged the judge had stopped him
from conducting his examination of witnesses.  However, after having heard
the appellants argument, this court determined that it was able to decide the
appeal without receiving the pages and without the necessity of calling on
counsel for the respondent.

[3]

We remain of the view that the trial judges conduct of the trial does
not support the grounds of appeal or give rise to an injustice.  We
therefore decline to re-open the appeal.

[4]

We note Mr. MacAdams argument that having failed to make submissions
regarding costs by the time indicated, counsel for the appellant should be
taken to have forfeited the opportunity to make such submissions.

[5]

We are of the view that in the circumstances, Mr. Tungohan should be
given until January 23, 2012 to make his submission regarding costs, failing
which the Court shall inform counsel as to its order.

The Honourable Madam Justice Newbury

I Agree:

The
Honourable Mr. Justice K. Smith

I Agree:

The Honourable Mr. Justice
Tysoe