In Buchanan v. Introjunction Ltd., 2017 BCSC 1002 the Plaintiff is successful in proving that he was wrongfully terminated from his employment and is therefore entitled to damages.
This is an interesting case as the Plaintiff’s employment was terminated by the Defendant shortly after an employment contract was executed, but prior to the Plaintiff having commenced any work.
A comment by the court – which is worthy of note – a great use of court resources:
“While the matter was scheduled to be heard by way of a two day trial, by agreement of counsel, the evidence was presented through an agreed statement of facts, affidavits from the principals and transcripts of examinations for discovery. In addition, the parties filed written submissions in advance. As a result, the case was heard in less than a day. Counsel are to be congratulated for the cooperative and efficient manner of proceeding.”
FACTS OF THE CASE:
- Plaintiff is 27 years old
- New Media design / Web Development Certificate held by Plaintiff from BCIT
- Experience: 5 years
- Defendant is a high tech extra-provincially registered co. in BC
- July 2016, Plaintiff applies with Defendant company (without recruitment nor solicitation)
- Sept 29, 2016 Interview occurs
- Oct 16, 2016, Plaintiff executes employment contract and returns to Defendant
- Commencement date was noted as Nov. 1, 2016 as senior software engineer / $125 K annual salary with stock option plan and company-wide bonus
- Oct 29, 2016, Defendant retracts its offer of employment & said retraction confirmed in writing
- The Plaintiff did not perform any work for the Defendant
- Dec. 19, 2016, the Plaintiff seeks employment with another company
The Employment Contract stipulated the following “Probation” clause:
Employee’s employment shall be subject to a probation period of three months beginning on the Effective Date during which time the Employer may terminate the employment without notice or cause.
Was the plaintiff wrongfully dismissed?
 It is well established that, absent an express contractual provision to the contrary, an employee who is terminated without cause is entitled to reasonable notice or damages in lieu of notice. That proposition holds true even where the termination occurs before the employee has started work: DeGagne v. City of Williams Lake, 2015 BCSC 816 [DeGagne]; and Horvath v. Joytec Ltd. (1989), 77 Sask. R. 272 ((Q.B.).
 The real issue in this case is whether the defendant can rely on the probation clause of the Contract to terminate the plaintiff’s employment without any obligation to pay damages in lieu of notice.
 The plaintiff submits that the probation clause has no application because i) on its face it only applied as of the effective date of November 1, 2016 and ii) the concept of probation requires a good faith assessment of an employee’s suitability which did not occur here.
 The defendant submits that the probation clause should be found to apply because it would be illogical for the plaintiff to have better rights before he commenced employment than once he started work, given that as of November 1, 2016, the defendant had an unfettered right to terminate the plaintiff without notice or cause.
 I find that the defendant cannot rely on the probation clause to support its termination of the plaintiff without notice. I reach this conclusion for the following reasons.
 First, on its face, the probation clause provides that the three month probation period commences as of the effective date of November 1, 2016. Thus, it was not in force on October 29, 2016 when the defendant retracted the Contract. Had the defendant intended to maintain a right to terminate the Contract without notice at any time after execution, it could have included a term to that effect. In DeGagne, Madam Justice Dardi similarly found that a probation clause had no application prior to the employee actually starting work (at para. 45).
 Second, I reject the defendant’s argument that had the probation clause applied, it gave the defendant an unfettered right to terminate the plaintiff without notice or cause. The purpose of a probationary period is to permit the employer to engage in a good faith assessment of the employee’s suitability for the position in issue.
 This point was recently confirmed by Madam Justice Morellato in Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42 where she said at paras. 57-58:
 As addressed above, the test for dismissal in the context of probationary employment is suitability. Just cause need not be established. An employer needs only to establish that it acted in good faith in its assessment of the probationary employee’s suitability: Jadot.
 In determining whether an employer acted in good faith, courts have examined the process through which the employer determines whether the employee is suitable for permanent employment. While an employer is not required to give reasons for the dismissal of a probationary employee, that employer’s conduct in assessing the employee is reviewed by the court in light of various factors such as: 1) whether the probationary employee was made aware of the basis for the employer’s assessment of suitability before, or at the commencement of, employment; 2) whether the employer acted fairly and with reasonable diligence in assessing suitability; 3) whether the employee was given a reasonable opportunity to demonstrate his suitability for the position; and 4) whether the employer’s decision was based on an honest, fair and reasonable assessment of the suitability of the employee, including not only job skills and performance but also character, judgment, compatibility, and reliability: See Geller v. Sable Resources Ltd., 2012 BCSC 1861 at para. 33; Ritchie; Jadot; Longshaw v. Monarch Beauty Supply Co.,  B.C.W.L.D. 2945 (S.C.); Rocky Credit Union Ltd. v. Higginson (1995), 27 Alta. L.R. (3d) 348 (C.A.); Jacmain v. Attorney General (Can.) et al.,  2 S.C.R. 15 (S.C.C.); Gebhard v. Board of Education of the Wilkie School Division No. 59 (1986), 52 Sask. R. 272 (Q.B.).
 Here, there was no good faith assessment by the defendant of the plaintiff’s suitability for the job for which he was hired. Suitability was not a factor at all; rather, the defendant changed its mind about its business and staffing needs. This is apparent from Mr. Nabavi’s October 29, 2016 letter to the plaintiff where he said:
This decision is due to further evaluation of our business priorities and resource needs. It, needless to say, has absolutely no reflection on you. We simply made a mistake of hiring too many front-end people.
 While it was open to the defendant to do so, it cannot rely on the probation clause to escape its obligation to pay damages in lieu of notice.
 Counsel for the defendant sought to distinguish the cases relied on by the plaintiff by suggesting that they involved circumstances in which the employee was recruited away from existing employment by the defendant and that the contracts in issue provided for performance reviews after a period of time.
 In my respectful review, the cases are not so distinguishable. Again, I do not accept the defendant’s contention that the probation clause, if applicable, granted the defendant unfettered discretion to terminate without notice or cause. I note as well that the Contract here did provide, in clause 1.7, for quarterly performance evaluations.
 In addition to the above, there is a further reason why, in my view, it is not open to the defendant to rely on the probation clause. The defendant’s “retraction” of the Contract amounted to a repudiation which, based on the parties’ communications, was accepted by the plaintiff.
 A very helpful and concise summary of the principles governing repudiation is provided by Mr. Justice Cromwell in his concurring Reasons in Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 at para. 144 where he said:
The term repudiation refers to the situation in which a breach of contract by one party gives rise to the right of the other party to terminate the contract and pursue the available remedies for the breach: J. D. McCamus, The Law of Contracts (2nd ed. 2012), at pp. 676-78. This occurs when one party actually breaches the contract in some very important respect and is said to thereby repudiate the contract. If the other party “accepts” the repudiation, the contract is over. If the other party does not accept the repudiation, the contract continues (subject to various other doctrines). In either case, the non-breaching party can pursue the available remedies which may vary depending on whether that party has accepted the repudiation or affirmed the contract.
 Where the repudiation occurs in advance of performance, it may amount to an anticipatory breach, which was described by Justice Cromwell at para. 149:
… An anticipatory breach “occurs when one party manifests, through words or conduct, an intention not to perform or not to be bound by provisions of the agreement that require performance in the future”: McCamus, at p. 689; see also A. Swan, with the assistance of J. Adamski, Canadian Contract Law (2nd ed. 2009), at §7.89. When the anticipated future non-observance relates to important terms of the contract or shows an intention not to be bound in the future, the anticipatory breach gives rise to anticipatory repudiation. The focus in such cases is on what the party’s words and/or conduct say about future performance of the contract. For example, there will be an anticipatory repudiation if the words and conduct evince an intention to breach a term of the contract which, if actually breached, would constitute repudiation of the contract.
 Here, the defendant stated a clear intention not to be bound by the Contract and it was therefore open to the plaintiff to treat the Contract as at an end and to sue for damages. In those circumstances, it is not then open to the defendant to rely on a provision of the Contract to avoid or limit its damages.
 I note that neither of the parties addressed the issue of repudiation, and as such, I base my conclusion primarily on the first two grounds set out above. However, the principles governing the repudiation of contracts support that conclusion.
 For all of these reasons, I find that the plaintiff was wrongfully terminated.
What is the reasonable notice period?
 The factors that will inform the court’s assessment of reasonable notice are well known and emanate from the leading decisions in Ansari v. British Columbia Hydro and Power Authority (1986), 2 B.C.L.R. (2d) 33 (S.C.) and Bardal v. Globe & Mail Ltd.,  O.J. No. 149 (S.C.). Those factors include the character of the employment, the length of service, the age of the employee and the availability of similar employment having regard to the experience, training and qualifications of the employee.
 The plaintiff submits that notice of four months is reasonable in the circumstances. He points to the relatively senior nature of the proposed position and the salary of $125,000 as factors that support a longer notice period. The plaintiff cites a number of cases in which the range of notice awarded was between three and six months. In the majority of those cases however, the plaintiffs were older and had actually worked for the defendant employer for a period of time.
 In response, the defendant submits that minimal notice of two weeks to one month is appropriate. It relies on the fact that the job in issue was technical in nature, the plaintiff’s length of service was zero and he found alternative employment relatively quickly after the termination. The defendant also notes the precarious nature of the plaintiff’s position with the defendant which was known to him and evidenced by such things as the provision in the Contract allowing for delayed payment of salary in the event that the defendant was unable to raise sufficient funds. See for example: Porter v. Highmont Operating Corp.,  B.C.J. No. 2034 (C.A.) at 4.
 The defendant relies in particular on Husson v. Alumet Manufacturing,  B.C.J. No 2325 (C.A.) where the Court of Appeal substituted one month for the trial judge’s award of six months’ notice in a case in which the employer “changed his mind” two weeks into the plaintiff’s employment.
 In the circumstances of this case, the factors weighing in favour of a longer notice period include the nature of the position, the relatively high salary and the fact that the plaintiff left secure employment to join the defendant, although he was not recruited. The factors weighing in favour of a shorter notice period include the minimal length of service, the precariousness of the position and the availability of alternate employment.
 Taking account of all of the relevant factors, I find that a notice period of six weeks is reasonable.
Did the plaintiff fail to mitigate?
 An employee who has been wrongfully terminated has a duty to mitigate his or her losses. The nature and scope of that duty is described by the Court of Appeal in Forshaw v. Aluminex Extrusions Ltd.,  B.C.J. No. 1527 as follows at para. 16:
That “duty”—to take reasonable steps to obtain equivalent employment elsewhere and to accept such employment if available—is not an obligation owed by the dismissed employee to the former employer to act in the employer’s interests. It would indeed be strange that such a duty would arise where an employer has breached his contractual obligation to his employee, having in mind that no duty to seek other employment lies on an employee who receives proper notice.
The duty to “act reasonably”, in seeking and accepting alternate employment, cannot be a duty to take such steps as will reduce the claim against the defaulting former employer, but must be a duty to take such steps as a reasonable person in the dismissed employee’s position would take in his own interests—to maintain his income and his position in his industry, trade or profession. The question whether or not the employee has acted reasonably must be judged in relation to his own position, and not in relation to that of the employer who has wrongfully dismissed him. The former employer cannot have any right to expect that the former employee will accept lower-paying alternate employment with doubtful prospects, and then sue for the difference between what he makes in that work and what he would have made had he received the notice to which he was entitled.
 In this case, the defendant does not take issue with the plaintiff’s efforts generally to find new employment, which culminated in the plaintiff in fact starting a new job on December 19, 2016. Rather, the defendant submits the plaintiff failed to mitigate by not following up on Mr. Nabavi’s offer of short-term work.
 The defendant cites a number of cases in which the duty to mitigate has been considered in the context of an employer’s offer to re-employ a terminated employee. This issue was addressed by the Supreme Court of Canada in Evans v. Teamsters Local Union No. 31, 2008 SCC 20 where Mr. Justice Bastarache, for the majority, said at paras. 28 and 30:
 In my view, the courts have correctly determined that in some circumstances it will be necessary for a dismissed employee to mitigate his or her damages by returning to work for the same employer. Assuming there are no barriers to re-employment (potential barriers to be discussed below), requiring an employee to mitigate by taking temporary work with the dismissing employer is consistent with the notion that damages are meant to compensate for lack of notice, and not to penalize the employer for the dismissal itself. The notice period is meant to provide employees with sufficient opportunity to seek new employment and arrange their personal affairs, and employers who provide sufficient working notice are not required to pay an employee just because they have chosen to terminate the contract. Where notice is not given, the employer is required to pay damages in lieu of notice, but that requirement is subject to the employee making a reasonable effort to mitigate the damages by seeking an alternate source of income.
 I do not mean to suggest with the above analysis that an employee should always be required to return to work for the dismissing employer and my qualification that this should only occur where there are no barriers to re-employment is significant. This Court has held that the employer bears the onus of demonstrating both that an employee has failed to make reasonable efforts to find work and that work could have been found (Red Deer College v. Michaels, 1975 CanLII 15 (SCC),  2 S.C.R. 324). Where the employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept such an opportunity. In 1989, the Ontario Court of Appeal held that a reasonable person should be expected to do so “[w]here the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious” (Mifsud v. MacMillan Bathurst Inc. (1989), 1989 CanLII 260 (ON CA), 70 O.R. (2d) 701, at p. 710). In Cox, the British Columbia Court of Appeal held that other relevant factors include the history and nature of the employment, whether or not the employee has commenced litigation, and whether the offer of re-employment was made while the employee was still working for the employer or only after he or she had already left (paras. 12-18). In my view, the foregoing elements all underline the importance of a multi-factored and contextual analysis. The critical element is that an employee “not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation” (Farquhar, at p. 94), and it is that factor which must be at the forefront of the inquiry into what is reasonable. Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee’s position would have accepted the employer’s offer (Reibl v. Hughes, 1980 CanLII 23 (SCC),  2 S.C.R. 880), it is extremely important that the non-tangible elements of the situation — including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements — be included in the evaluation.
 As can be seen, the issue turns on whether the offer of re-employment is one that a reasonable person, given all of the prevailing circumstances, would accept.
 In my view, the plaintiff did not unreasonably fail to mitigate his damages by not following up on Mr. Nabavi’s offers of short-term employment. The offers, as set out in Mr. Nabavi’s emails of November 2 and 4, 2016, were vague and lacked any particulars about start date, number of available hours and scope of work, as well as specifics about what the plaintiff would be paid. In the November 2 email, Mr. Nabavi referred to a “reasonable hourly wage” that would be “perhaps something close to what you were getting paid before”. In the November 4 email he said he would be “happy to pay at least the same amount as your last employer”. While that suggests the defendant would pay a similar rate to what the plaintiff earned previously, absent any details about the amount of work available, the plaintiff could not properly assess how much money he could expect to earn.
 Further, even accepting that the defendant would pay a similar rate, his salary from his previous employer was substantially less than what he was offered by the defendant. In the circumstances, it was not unreasonable for the plaintiff to decline to pursue an ill-defined job for unknown hours at a reduced salary from the employer who had recently advised him that there was no need for his services.
 I would add that throughout his dealings with the plaintiff, Mr. Nabavi acted honorably. It is clear that he felt bad about how events transpired and he had a genuine interest in helping the plaintiff. However, his offers of assistance were not ones that a reasonable person would have accepted given all of the prevailing circumstances.
 Leaving aside the offers from Mr. Nabavi, I am satisfied that the plaintiff took reasonable steps to secure alternate employment and again, the defendant does not take issue with the plaintiff’s efforts in this regard.
 For these reasons, I find that the plaintiff did not fail to mitigate his damages.
 The plaintiff was wrongfully terminated from his employment and is entitled damages equivalent to six weeks’ notice. As he did not start his new job until after the expiry of six weeks, there is no need to deduct actual earnings from this amount. The plaintiff was scheduled to earn $125,000 per year, or $2,404.00 per week with the defendant. Six weeks’ salary equals $14,424.00. The plaintiff is entitled to judgment in this amount.
 If the parties cannot agree on costs, they may make arrangements to speak to the issue.
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