Introduction

[1] The plaintiff, Jennifer Cottrill, seeks damages for wrongful dismissal. She was hired by the defendant company, Utopia Day Spas and Salons Ltd., as a skincare therapist and commenced employment on May 3, 2004 at the company’s Langley spa location. She worked on a full time basis at the spa for approximately 11 years before she was dismissed from her employment for cause.

[2] The plaintiff was 21 when she was hired by the company. She had a child in 2005 while employed with the company. She is a single mother. She had attended Fraser Academy for secondary school due to a learning disability. After graduation, the plaintiff took one year of training as an esthetician at the Blanche MacDonald Center, after which she was certified as an esthetician. She worked for a short time at another spa in Vancouver and in Langley before working at the company’s spa.

[3] The defendant company is a day spa and salon that operates several locations in Langley, North Vancouver, and Vancouver. Mr. Abu-Ulba is the president and chief executive officer of the company. During trial, Mr. Abu-Ulba described the administration of the spa as including a general manager for each location and department head for each service area and, in addition, a regional manager and executive staff.

[4] During the time that the plaintiff was employed at the spa, the management team for the Langley location consisted of Julie Fell, Amy Atchinson, Leisa Dawiskiba, Mandy Gill, and Dora Bonarek.

[5] Ms. Fell is the regional manager of the company and the daughter of Mr. Abu- Ulba. Her role is to oversee the operations of the spas. In 2004, she was the general manager of the Langley location. While acting in that capacity, she hired the plaintiff. By 2015, she was the regional manager and reported to the president. The store managers report to her.

[6] Ms. Atchinson was the company’s general manager of the Langley location. She was responsible for general operations of the spa including maintaining a

[17] The plaintiff’s employment was continuous with the exception of a period she was off for maternity leave.

[18] The plaintiff’s employment income varied over the years. For 2012, her T4 income was reported at $25,008; for 2014, it was $28,585; and her income for the period of 2015 in which she was employed was $14,144.

[19] In 2014, the plaintiff and the other employees were asked to sign a new employment contract. They were told, by letter from Ms. Fell dated July 28, 2014, that “there is no change to the terms and conditions of your employment as a result of the revision to the contract” and that the employer had to update the document to “reflect the current applicable legislation”. At the time the revised contract was presented, the plaintiff did not receive any bonus or other item of value and her compensation and benefits remained the same. The plaintiff testified that she signed the contract on the basis of what was said in the accompanying letter and because she did not feel she had any alternative but to sign it. Ms. Atchinson testified that she went through the revised contract with the plaintiff and explained to her what had changed.

[20] The plaintiff testified that she considers herself to be a very good esthetician and that she loved her job. She received positive feedback at various times over the years, including from Mr. Abu-Ulba. She provided services to family members of Mr. Abu-Ulba in 2015.

[21] The plaintiff acknowledged that she received a number of client complaints as happens in this industry. She also acknowledged that she received written and verbal warnings from management about performance issues over the years, particularly not handing in call back sheets (confirming she had called back new clients after their service) and practice sheets (confirming her knowledge of the protocol for a particular service) on time. The plaintiff testified that she did not have enough time to do the call back sheets and practice sheets during the work day an often took them home to complete. She noted, however, that she had never been suspended or otherwise disciplined for any of these incidents.

Performance Review System

[22] The plaintiff confirmed that during her employment, employees at the spa were obliged to attend regular goal setting meetings with their department head. Ms. Bonarek met with the plaintiff on a regular basis to review how she could improve her performance including, for example, increasing her retail sales, the amount of revenue generated from services, and her request rates. During these meetings, the plaintiff was asked to complete company “professional goals” forms in which she was to outline how she planned to achieve the goals she set for herself.

[23] Ms. Fell confirmed that the purpose of the monthly meetings between department heads and employees was to review their performance in services, retail sales (or home care), and request rate. She also stated that the meetings were to review overall performance related to following procedures and protocols, punctuality, team work, and related duties.

[24] In 2005, the company introduced a new compensation and evaluation system known as the “level system”. Employees were given the option of continuing with the existing compensation formula or being compensated under the new level system.

[25] The system had four levels: bronze, silver, gold, and platinum. Mr. Abu-Ulba described the program as a “success road map” which provided criteria for employees to reach and move to the next level. He stated that the compensation system was tied to the level system in the sense that each level had its own compensation structure. He said that not everyone started at the bronze level; that it depends on their certification and experience.

[26] Ms. Fell also testified that the system allowed employees to know what was expected of them and how to get to the next level. She said that there was a base rate with an hourly rate which increased at each level. She testified that it was mandatory for employees to move into the level system for performance standards but had a choice to stay on the prior compensation structure.

[27] When the plaintiff returned from her maternity leave in 2006, she was placed by the company onto the level system in respect of performance expectations, although she elected to remain on the existing compensation structure. She was initially placed by the company into the bronze level and was subsequently moved to the platinum level in 2010. The plaintiff testified that she was told by Ms. Bonarek that the performance level system did not apply to her.

[28] Mr. Abu-Ulba and Ms. Fell testified that while they did not discuss the level system with the plaintiff and did not know if the plaintiff attended meetings at which it was introduced, they believed that the plaintiff would have become aware of it when she returned from maternity leave. Ms. Fell’s evidence was that the plaintiff was initially measured based on the bronze level but testified that this was changed in 2010 when she was raised to the platinum level. Ms. Fell acknowledged that the plaintiff was moved directly from the bronze level to the platinum — which required the plaintiff to increase her revenue from services from $3600 to $7000 in one month. Ms. Fell said that the plaintiff was not moved gradually as she was “always meant to be measured” at the platinum level and that people that remained on commission were to be measured at the platinum level.

[29] Ms. Atchinson also testified that there was a written performance criteria document for the level system which would have been provided to the plaintiff, although she did not give it to her directly.

Termination of Employment

[30] Mr. Abu-Ulba testified that when Ms. Bonarek left the company in early 2015, the senior management team looked to individuals within the department to replace her. At that time, he was informed by Ms. Fell and Ms. Atchinson that three employees, including the plaintiff, were underperforming. He said that this triggered him to take a more in depth review of her personnel file. He said he was “absolutely

shocked and offended and hurt” that despite her years of experience, training, and warnings, she was not meeting her goals and criteria.

[31] On learning of the issues, Mr. Abu-Ulba and the senior managers held a number of meetings to discuss the plaintiff. Mr. Abu-Ulba testified that he decided that she should be given “one more chance” but that there had to be consequences for her underperformance. He testified that he instructed that she be given a“termination notice”, but that she be given three months to improve during which she had to show two “successful” months.

[32] Mr. Abu-Ulba, Ms. Fell, and Ms. Atchinson all acknowledged that they did not personally supervise the plaintiff and that this was the responsibility of her department head, Ms. Bonarek. Mr. Abu-Ulba described her as a manager who was a good trainer and coach and adhered to the “philosophy of the small wins”. He said that none of the management staff had reported any concerns to him about the plaintiff prior to Ms. Bonarek’s departure. When asked why he reviewed the plaintiff’s personnel file, Mr. Abu-Ulba said that it was part of his job once he learned of it, and he felt there needed to be consequences for her underperformance.

[33] Ms. Fell also testified that Ms. Bonarek had not raised any concerns about the plaintiff with her prior to Ms. Bonarek’s departure. She described the management style of Ms. Bonarek as being consistent with the company’s vision: she was caring and transparent with staff and she always had an open door and adopted a team approach. She described Ms. Bonarek as an excellent trainer. Ms. Fell said that she was not aware of the severity of the plaintiff’s performance shortfalls until January of 2015 when Ms. Bonarek left and they were reviewing the staff to replace her. She testified that when she and Ms. Atchinson reviewed the yearly financial performance spreadsheet maintained for each employee, they concluded that although Ms. Bonarek had been “nurturing”, she was “protective” of the staff.

[34] Ms. Fell described her review of the plaintiff’s yearly financial performance spreadsheet, as well as her personnel file, and testified that they disclosed a lack of

effort and commitment by the plaintiff. She said that the plaintiff had “spikes” in her performance that showed that she was capable of reaching targets. She said that the magnitude of her shortcomings disclosed a choice not to perform. Ms. Fell testified that the plaintiff’s repeated failure to hand in her practice sheets on time spoke to her “disrespectful attitude”. She said that she was not as concerned about customer complaints but was concerned about the pattern of complacency demonstrated by the warnings for lack of call backs to new guests and not handing in practice sheets after training on new services.

[35] Ms. Atchinson also said that she did not review the plaintiff’s performance until January of 2015, and that supervision of employees was left to the department heads. She testified that although she did not supervise the plaintiff, from her observations of the plaintiff in the hallways and staff room, “she did not seem to have a sense of urgency” and that “she was very laid back, relaxed, and complacent”.

[36] After discussions with Mr. Abu-Ulba and Ms. Fell, on March 13, 2015, Ms. Atchinson and Ms. Dawiskiba arranged a meeting with the plaintiff. At the meeting they gave her a letter advising of her performance deficiencies and stating that she had three months to improve or she would be terminated from employment on June 12, 2015 (the “March letter”). The March letter provided:

March 13, 2015

Jennifer Cottrill
Skin Care Therapist

Re: Performance Meeting Dear Jennifer:

I write to document our concerns raised with you on our meeting with myself and Leisa on March 13, 2015. As you know, it is our impression that your performance and behavior is not indicative of your capabilities. You have been a partner with Spa Utopia (SU) – Langley for 10 years and upon review of your performance in 2014 you are not meeting the performance requirements for your position. The following items were discussed with you:

1. Attitude – lack of enthusiasm and complacency.
2. Not following policies and procedures as a technician as laid out by SU, including but not limited to call backs.

agreed that the plaintiff had improved according to the criteria in the last two months and that the plaintiff provided “excellent guest care” in 2015. She maintained that the plaintiff’s demeanour was complacent but acknowledged that she did not do anything about this or take steps when she observed this in the hallway.

[45] Ms. Fell testified that she was informed by Ms. Atchinson that the plaintiff was not successful during the three months, at which point she and Mr. Abu-Ulba “reviewed the coaching package and the numbers” and decided that if the plaintiff was not going to do it in three months, she would never do it and “moved forwardand terminated her employment”. She testified that the plaintiff was not dismissed for not handing in practice sheets and doing call backs but for the “bad attitude” that was reflected in her file.

[46] In reviewing the yearly financial performance spreadsheet from March to June of 2016, Mr. Abu-Ulba acknowledged in cross-examination that, with respect to homecare, services, requests, and new guests, the plaintiff performed at the highest level she had to that point in time. He agreed that she met the criteria for the last two months and had improved in certain respects, but said that she had to be successful on the basis of the platinum criteria— which standard, he said, she had agreed to. He said her being $122 off her retail target was significant. When asked why the yearly financial performance spreadsheet setting out her performance during the period she was given to improve did not contain information for May/June, he acknowledged that they were not recorded and did not know why. He said that as she did not have three successful months, he had “no choice but to let her go”.

[47] Mr. Abu-Ulba testified that when he was told by his managers that the plaintiff did not improve, he told them that, in that case, they “must stick to the letter”.

[48] On June 12, 2015, Ms. Dawiskiba and Ms. Atchinson met with the plaintiff. They told her that it was her last day. She was not given a letter confirming the dismissal and was not paid any severance. Mr. Abu-Ulba said there was no additional letter given to her in June of 2015 as they believed she understood that the March letter was her termination notice.

[49] The plaintiff testified that she went “numb” during the meeting and could not take anything in.

[50] Since her termination, the plaintiff retrained as an Executive Office Administrator. She took a course through Sprott Shaw College commencing in November of 2015.

Issues

1. Did the defendant have cause to terminate the plaintiff?

2. If the defendant did not have cause to summarily terminate the plaintiff’s employment, what was the period of notice to which the plaintiff was entitled?

3. Is the plaintiff entitled to aggravate or punitive damages?

Credibility

[51] In Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, Madam Justice Dillon reviewed the factors to be considered in assessing credibility:

Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Farnya at para. 356).

[58] Our Court of Appeal, in applying McKinley, noted that the test for cause is objective, viewed through the lens of a reasonable employer taking into account all relevant circumstances: Roe v. British Columbia Ferry Services Ltd., 2015 BCCA 1 at para. 35. The employer bears the burden of proving there was just cause for dismissal on a balance of probabilities: McKinley at para. 36.

[59] In cases concerning cause for an alleged failure to meet performance standards, an employer must show that it has established reasonable, objective standards of performance; the employee has failed to meet those standards; the employee has had warning that his employment is in jeopardy if he or she does not meet the standards; and the employee was provided with reasonable time to correct the situation: Brown v. Sears Ltd., [1988] N.S.J. No. 475 (T.D) at para. 32; Hennessy v. Excell Railing Systems Ltd., 2005 BCSC 734 at para. 12 citing from Boulet v. Federated Co‐operatives Ltd., 2001 MBQB 174 aff’d 2002 MBCA 114; and Bomford v. Wayden Transportation Systems Inc., 2010 BCSC 1506 at para. 6.

[60] In Bomford, Mr. Justice Macaulay summarized the legal test for dismissal based on substandard performance as follows:

[5] In order to dismiss an employee summarily, where the employer believes the employee’s performance is substandard, the employer must provide the employee with a clear warning which specifically informs the employee that his or her job is in jeopardy. The employer cannot employ oblique language when warning the employee that his or her employment may be terminated. It is not sufficient for the employer to merely criticize the employee’s performance or simply urge improvement.

[6] In addition, although neither counsel referred to the decision, a convenient synthesizing of the requirement to warn is found in Hennessy v. Excell Railing Systems Ltd., 2005 BCSC 734. There, the court, at para. 12, held that the employer must show:

(a) it has established a reasonable objective standard of performance,

(b) the employee has failed to meet those standards,

(c) the employee has had warnings that he or she has failed to meet those standards and the employee’s position will be in jeopardy if he or she continues to fail to meet them; and

[66] The plaintiff submits that in the period after the March letter, she was “set up to fail” and was not given a meaningful opportunity to improve. The plaintiff refers to the decision of Brake v. PJ-M2R Restaurant Inc., 2016 ONSC 1795 in which the court held that the plaintiff was not given any clear and reasonable opportunity to correct the alleged performance issues because she had been placed in an impossible situation; she was “set up to fail from the beginning”. The plaintiff submits that the same can be said in this case for the three month period following the March letter and meeting.

[67] For the reasons that follow, I find on the whole of the evidence that the company has failed to establish that it had cause to dismiss the plaintiff. I will discuss my reasons in the context of the time prior to the March letter and the three month period that followed.

Period prior to March 13, 2015 letter

[68] During most of the plaintiff’s 11 years with the company, she was under the direct supervision of Ms. Bonarek, who, based on the testimony of Mr. Abu-Ulba, Ms. Fell, and Ms. Atchinson, was an effective and competent manager. Ms. Bonarek was not called to give evidence and there was no explanation provided as to why she was not called. However, there was evidence in the form of Ms. Bonarek’s written notes. From some of the notes, it is evident that Ms. Bonarek raised concerns with the plaintiff about such matters as not calling clients back to encourage further bookings and not handing in practice study sheets. I find that the last warning received by the plaintiff about following up with clients was in January of 2012, three years before her termination, and there were no warnings from Ms. Bonarek in 2011 and only one warning in 2010, about not placing follow up calls to clients. I also find that the last warning in evidence regarding failure to follow company treatment protocols for clients was from 2008. There was one note in 2013 about the plaintiff needing to bring in an extra pair of cuticle nippers.

[69] There was also evidence of a few client complaints over the plaintiff’s tenure with the company relating to services she performed. However, I note that the

sheet was not located) contain positive comments from Ms. Bonarek about the plaintiff’s performance. In 2012, Ms. Bonarek included the following statement:

Your request dropped down. Don’t worry though. Just focus on your [retail] Good Job you doubled last month [retail] ! 🙂 Congrats Jenn ! Dora

[73] In 2014, the yearly performance spread sheet contains the following statement:

Jennifer the highest HC this year! Congratulations great job! Call backs are need teh [sic] same as Requests got already – great numbers!

[74] I accept the evidence of the plaintiff that prior to March 12, 2015, she believed that she was doing “great” in her job, that she was improving her numbers, and had demonstrated her interest in the job by taking extra training to become a trainer.

[75] I would add that, while I interpret the performance levels described in the “Esthetics Department Performance Criteria, Compensation and Benefit Package” as being designed to incentivize higher performance, there is no indication in this material that failure to sustain the standards of one level would result in termination of employment. Indeed, the silver, gold, and platinum level descriptions all contain sections entitled “Moving Between Levels” which contemplate the ability to move down to a lower level in the event that the criteria are not met on a regular basis. One such section under the gold level reads:

Gold Level – if the esthetician is unsuccessful after minimum time period (15 months), she/he will remain in current level until she/he has met 11 successful criteria months. There is no maximum time period. There cannot be 4 consecutive unsuccessful criteria months or the esthetician will be placed back into Silver Level and must begin again to accumulate 6 successful criteria months to move up again.

[76] The company suggests that the ability to move through levels was only in respect of employees that had transferred onto the new compensation system and that employees not on the compensation system were to be held to the platinum level for performance. However, I find this argument somewhat disingenuous when there is no evidence from the company that this was explained to the plaintiff.

19 Ms. Brake was not given any clear and reasonable opportunity to correct the alleged issues that the Defendant was having with her employment performance. She was transferred to a flailing branch and expected to turn it around and perform there in excess of the standards that had been accepted of her in the past. The GAP program as implemented by the Defendant was arbitrary and unfair. There was no objective basis for the goals set; they were meaningfully more onerous than usual and in excess of those set by McDonald’s generally. These extraordinary expectations were both unjustified and impossible to meet.

20 Ms. Brake was not even kept informed of her performance under the GAP program in the way the program itself stipulates. I do not see the rationale in advising an employee of her 30 day performance nearly half-way to the 60 day mark given the overall timespan involved.

21 I find that Ms. Brake was set up to fail from the beginning of the GAP program. Not even the fact that she did ultimately manage to meet the Defendant’s heightened expectations could save her in the end. Well before the completion of the GAP, Ms. Brake’s removal from her manager position was a foregone conclusion. Given the length of her employment and her loyal history of contributions to the organization, she was entitled to expect more assistance in overcoming her newly alleged shortcomings. I find the GAP program as implemented by the Defendant was less an instrument of help than it was a way to record Ms. Brake’s anticipated inability to meet the Defendant’s shifting expectations in order to justify a decision that had effectively already been made.

[81] While the decision is not on all fours with the case before me, it does emphasize the importance of the requirement that an employer give a meaningful opportunity and assistance to an employee with performance issues. Here, I find the plaintiff was not given such a fair and reasonable opportunity to meet the expectations set out in the March letter.

[82] First, while the company argues that the March letter and meeting constituted a warning to the plaintiff that her employment was in jeopardy, it was the evidence of Mr. Abu-Ulba that the March letter was meant as the “termination letter”. That is why, Mr. Abu-Ulba testified, there was no need to provide a letter of termination in June of

2015. He said they believed that the plaintiff understood that the March letter was her termination notice. I take from his evidence that while he was prepared to give her an opportunity to show two successful months, he had decided that he already had cause to terminate her employment. I also take from his evidence that it would be exceedingly difficult for the plaintiff to satisfy him that she should remain with the company – given the strength of his views of the plaintiff’s suitability. As noted, he testified that, based upon his review of the plaintiff’s personnel file, he was “absolutely shocked and offended and hurt” by what he saw.

[83] Further, I find the March letter outlining what was required of the plaintiff to be ambiguous; it set an unreasonable and unfair standard. It stated that the plaintiff must meet the performance requirements “equivalent to the platinum level”; that “immediate changes in her attitude, behaviour, and motivation must be observed”; and that “call backs must be turned in weekly”. Further, the letter stipulated that there must be a “marked improvement” to the above areas as well as to “all of the Spa Utopia Health and Wellness Center policies and procedures as outlined in your employment agreement with us.” Additionally, a handwritten note included in the letter stated there must also be “two successful months as per criteria”.

[84] It was not clear whether the plaintiff had to demonstrate an “immediate marked improvement” or “two successful months”. Moreover, it is not clear how the plaintiff was to demonstrate “changes in her attitude, behaviour, and motivation to the satisfaction of management”. Further, there is no evidence as to which of the policies and procedures contained in the 32 page manual the plaintiff was expected to show an immediate marked improvement in.

[85] In considering whether the employer provided a fair and reasonable opportunity to improve, I observe, as noted above, that the plaintiff was not previously held by the company to the platinum level. I find that this was the first time she was told that her employment was in jeopardy if she did not meet the platinum criteria and it was the first time she was spoken to about a poor attitude and lack of motivation. Indeed, in all of the documents tendered by the company concerning the

been in the position since February of 2015 and had previously been at the same level as the plaintiff. Ms. Gill was fully aware of the concerns of management before she began the coaching. I find that she was in a difficult position. While she may have sincerely wished to help the plaintiff, she was being asked by management to make judgement on the plaintiff’s attitude and motivation without having management experience and without any objective criteria for making such judgments.

[90] I find that the company’s assertion that the plaintiff had a poor attitude, was complacent, and lacked motivation was almost entirely based on the impressions of Ms. Gill at the coaching meetings. Even if the plaintiff did not display the level of enthusiasm Ms. Gill may have hoped for, this does not mean that she was not bringing a professional and positive attitude to her work with clients. There is no evidence that during the March to June period there were complaints or concerns about how she dealt with clients or team members. In my view, the contention that she was complacent or lacked motivation is contradicted by her increased performance numbers during this period.

[91] In that respect, I find that the plaintiff did improve markedly. The performance spread sheets for the March/April and April/May 2015 months state that “yes” she met the platinum criteria. Her home care percentage, request rate, number of services and new guest numbers for April/May were the highest in 2015. She was only $122 off the target amount for home cares sales. I consider the marked improvement in her sales and number of customers belie the company’s contention that she had a poor attitude, lacked motivation, or was complacent during the relevant period. I accept the plaintiff’s evidence that she “worked her butt off” to achieve approximately $8,000 in services and $1,500 in sales in the April/May period because she wanted to continue to work with the company.

[92] I note that the April/May period is the last period recorded in the company’s spread sheets pertaining to the plaintiff’s performance. Although the plaintiff was to be given a three month period to meet the company’s expectations, there are no numbers in the performance spreadsheets which the company adduced which include the May/June period. Although Ms. Atchinson states that she reviewed the numbers for this period, there is no other evidence substantiating that this period was considered and she was unable to recount how the plaintiff performed in the latter period other than that she was “still under”. I find that Ms. Atchinson’s evidence on this point is not reliable.

746 Q Right.

A — and it was based on performance. And the department was operating on a deficit, and some of our — the people that have been there the longest were having the least performance, right, so you have to make decisions.

747 Q And was it a decision — and I understand what you’re saying. Was it a decision in part based on the financial performance of the company, then, and people had to be cut that were maybe —

A No.

748 Q Okay. So it wasn’t a need for the company to make cuts to improve its bottom line?

A Well, it was a need to make cuts to improve the bottom line.

[96] While the company was entitled to consider its bottom line and to reduce its compliment of employees, if it intends to allege cause it was incumbent on the company to fairly assess the employee’s competence and to determine whether, given the nature and circumstances of the performance issues identified, dismissal is a just and proportionate response.

[97] As noted, I conclude that the company has not established that it had cause to dismiss the plaintiff from her employment. The employer unreasonably sought to hold the plaintiff to performance standards which it had not previously required of her and failed to provide her with a fair and reasonable assessment of her performance. I do not accept the company’s assertion that it can rely on vague allegations that the plaintiff was complacent and had a poor attitude in the face of the evidence that she met the performance criteria, markedly increased her sales and services, and provided excellent guest care. I also do not accept that failing to meet the sales target by $122 is “significant” given the extent to which she improved her sales. In my view, the company gave no meaningful attention to the improvement they said they were looking for. The company also did not provide the plaintiff with an explanation as to why her attitude was deficient or why it believed it had cause for her termination. The plaintiff did not have a reasonable opportunity to respond to the conclusions reached by the company before it dismissed her. In sum, the company has not shown that there was “serious or gross incompetence” such that it could be said that the plaintiff repudiated the contract.

2. Notice Period

[98] Given my conclusion that the company did not establish that it had cause to terminate the plaintiff’s employment, she was entitled to notice of termination or payment in lieu of notice.

[99] With respect to the appropriate period of notice, the company submits that the plaintiff was given three months’ notice of termination on March 13, 2015. As noted, the company claims that the March letter that served as notification of the plaintiff’s performance issues was also notice of termination; that the subsequent three months after the meeting was the notice period; and that this is over and above the notice requirement set out in the plaintiff’s employment contract and the Employment Standards Act, R.S.B.C. 1996, c.113 (the “Act”). In the alternative, the company submits that if the March letter did not constitute adequate notice, the terms of the employment contract provide that the plaintiff would be entitled to eight weeks’ severance prescribed by the Act.

[100] The company refers to section 8 of the 2004 and 2014 employment agreements, which it asserts stipulate the agreed amount of notice or pay in lieu of notice to which the plaintiff is entitled. The company submits that, by incorporating the termination notice provisions of the Act into the employment agreements, the presumption of common law reasonable notice is effectively rebutted.

[101] The 2004 agreement contains the following severance clause:

8. The Employer may terminate the Employment of the Employee without cause or notice in accordance of the Employment Standards Act of British Columbia …

The 2014 agreement contains the following revised provision: 8. Termination

8.1 The Employer may terminate the Employment of the Employee without notice or pay in lieu of notice in the following manner in the following circumstances:

(a) At any time, for cause;

(b) At any time, for notice in writing or pay in lieu or notice, said notice to be in accordance with the notice requirements provided in the Act, as amended from time to time.

[102] The plaintiff submits the neither the 2004 nor the 2014 agreement governed her employment with the company. The plaintiff contends that she was hired on an oral contract of employment which was created when Ms. Fell hired her in April of 2004, the terms of which were governed by the common law. Although the plaintiff agreed that she signed a contract of employment on May 3, 2004, she maintains that because the employment agreement was given to her to sign during her orientation and without new consideration provided, it is not binding. The same argument is advanced in relation to the 2014 agreement. The plaintiff relies on the decisions in Francis v. Canadian Imperial Bank of Commerce, [1994] O.J. No. 2657 (O.N.C.A.), Holland v. Hostopia.Com Inc., 2015 ONCA 762, Rejdak v. Fight Network Inc., [2008] O.J. No. 2995 (O.N.C.J), and Duprey v. Seanix Technology (Canada) Inc., 2002 BCSC 1335 in support.

[103] With regard to the first position of the company, that it provided three month notice to the plaintiff communicated to the plaintiff in the March letter, I find that the notice was deficient insofar as it did not clearly and unequivocally communicate that her employment would be terminated on June 12, 2015. Rather, it held out the prospect that her employment may not be terminated if there was a marked improvement and/or she had “two successful months”. It also provided that the contract may be terminated earlier than on June 12, 2105: “at any time” during the three month period if “management feels that your commitment and effort is not producing results to our satisfaction”.

[104] In Kerfoot v. Weyerhaeuser Company Limited,, 2013 BCCA 330, Madam Justice Saunders affirmed the law on the content of a notice as described in the decision of Mr. Justice Wood in Yeager v. R.J. Hastings Agencies Ltd., [1985] 1 W.W.R. 218 (B.C.S.C.) wherein it was held that a notice of dismissal must be “specific and unequivocal and it must be clearly communicated to the employee if it is to be effective in law” and that the “onus of proving that such a notice has been given rests upon the employer who seeks to raise it as a defence to an action fordamages for wrongful dismissal”.

23 I am mindful of the Supreme Court’s comments on the fundamental importance of work in a person’s life and its observation that individual employees may lack the bargaining power and information necessary to achieve more favourable contract provisions when they negotiate their employment contract: Machtinger. The principle remains, however, that when the ESA is referenced in an employment contract, its provisions may rebut the common law principles that govern reasonable notice. I note the employer paid a $9,000 signing bonus, suggestive of some demand for the plaintiff’s services and of some equality in bargaining power. I do not find evidence of unconscionability. I note also that the employment agreement twice sees the plaintiff confirming that she had the opportunity to seek a legal opinion to address any concerns she might have had at the time.

24 I find clause 8 of the March 9, 2007 employment agreement is valid and enforceable. It, and, by reference, s. 63 of the ESA, governed the defendant’s obligations to the defendant when it terminated her employment. The payment the defendant has already made fully discharged its obligations under the ESA to the plaintiff.

[110] The plaintiff did not argue that this decision was wrongly decided as she focussed her submissions on the enforceability of the written contracts of employment for lack of consideration.

[111] Although I am mindful of the comment in Machtinger that common law notice can be rebutted provided that contractual language “clearly” specifies some other form of notice, I agree with Justice Brown that the minor grammatical errors in this provision do not create a material ambiguity. The court should strive to give effect to what the parties reasonably intended to agree to when the contract was made: Miller v. Convergys CMG Canada Limited Partnership, 2014 BCCA 311, leave to appeal ref’d [2014] SCCA No. 424 at para. 15. I also note that courts, since Machtinger, have held that a clause which incorporates the Act by reference can be sufficient to rebut the presumption of common law notice and limit the obligation to that found in the Act: University of British Columbia v. Wong.

[112] In any event, the decision of Justice Brown ought to be followed unless, on a Hansard Spruce Mills analysis, I conclude any of the exceptions to which Justice Wilson referred to in Hansard Spruce Mills Ltd., Re, [1954] B.C.J. No. 136 (S.C. apply. I conclude that none of the exceptions are applicable: there have been no subsequent decisions affecting the validity of his judgment to which I was directed; it was not demonstrated that there are relevant cases which were not considered; and the reasons of Justice Brown were not nisi prius. Justice Brown provided a considered decision on the issue and judicial comity supports the conclusion that section 8 of the 2004 agreement is valid and enforceable: Zuria v. Mission Institution, 2011 BCCA 452.

[113] That said, I will consider the plaintiff’s submission that the 2004 and 2014 written employment contracts do not apply to the plaintiff for lack of consideration. The plaintiff suggests that she was employed on an oral agreement, which provided for common law notice and that it was not effectively modified by the subsequent employment contracts.

[114] I start with the general proposition that the standard principles of contract law apply in the employment setting. As noted by Madam Justice Dardi in DeGagne v. Williams Lake (City), 2015 BCSC 816:

20 The essence of any legally enforceable contract is consensus ad idem; there is no contract without the required meeting of the minds. Both parties to an alleged contract must have manifestly expressed an intention to be legally bound by the agreement and the parties must be shown to have reached consensus on the essential terms of the alleged contract. The parties must have expressed those essential terms such that “their meaning can be determined with a reasonable degree of certainty” by the courts: Frolick v. Frolick, 2007 BCSC 84 (B.C. S.C.) at para. 30.

[117] I accept Ms. Fell’s testimony that on May 3, 2004, she followed her usual practice with the plaintiff, which was to go through all the required paper work, the company policies, and the terms of the employment contract. The plaintiff does not dispute that she was asked by Ms. Fell if she was comfortable signing the contract and whether she wanted to obtain legal advice. The plaintiff also did not dispute that Ms. Fell reviewed the contract with her, line by line.

[118] Further, in cross-examination, when the plaintiff was asked about her 2004 telephone call with Ms. Fell, she testified that she was told by Ms. Fell she “was going to be hired and to show upon on May 3 at the Langley location”. Despite the plaintiff’s suggestion that, as she had trained on the first day, she had worked prior to signing the contract, her evidence was that she did not start her work duties with the company until after she signed the contract.

[119] In my view, the instant case can be distinguished from the decision in Francis in which the employee had signed a full offer letter prior to signing a more restricted formal agreement and from the decision in Holland in which the employee had been working for nine months prior to being presented with a written agreement.

[120] The decision in Rejdak can also be distinguished. In that case, the evidence supported that the employer and employee had agreed to the salary, position title, and start date on the phone prior to the employee starting work and that the employee had done a full days’ worth of worth before being presented with the written contract. I am not able to find that the plaintiff and the company discussed such essential terms as salary and benefits during the phone call.

[121] I find that this case is more analogous to the situation in Bern v. Amec E & C Services Ltd., 2007 BCSC 856. In that case, Mr. Justice Bauman (as he then was) held that the contractual relationship between the parties did not crystallize until the plaintiff had reviewed all the terms of the written contract. He emphasized that the plaintiff did “not begin performing his duties of employment” until after the written contract had been signed. Here, I find that the plaintiff’s first day was an orientation day, in which she toured the spa facilities, was advised on general procedures and policies, and reviewed the contract of employment. There is no evidence that she provided any skincare services prior to signing the agreement. I am not satisfied that she could be said to have commenced her duties as an employee prior to signing the contract.

[122] I, therefore, find that the 2004 agreement was valid and in effect during the plaintiff’s employment. I find it unnecessary to consider the 2014 agreement. It has no application for want of consideration.

[123] In summary, I find that the employment of the plaintiff was governed by the 2004 agreement and that, given that no cause existed for her termination, the plaintiff is entitled under the agreement to eight weeks’ severance pay, calculated on her total weekly wages earned in the last 8 weeks of her employment with the company as provided in the Act. I note that the common law duty of mitigation does not apply as the plaintiff is limited to the amount of severance she is entitled to under the Act: Boland v. APV Canada Inc., [2005] O.J. No. 510 (S.C. Div. Ct.) at paras. 21- 24.

3. Aggravated and Punitive Damages

[124] The plaintiff also seeks an award of aggravated damages and punitive damages in the amount of $20,000. She submits that, in the circumstances, the company acted callously and unfairly in accepting her performance for 11 years only to arbitrarily change the standard to which she was required to perform, and to then dismiss her in three months without a dismissal letter when she failed to meet those standards. She submits that she was set up to fail and that the company breached their duty of good faith in the manner of her termination.

[128]

thepurposeofawardingeachisdifferent. Inawrongfuldismissalcase, aggravated damages are awarded to compensate a plaintiff for actual damage that is caused by unfair or bad faith conduct of the employer in the manner, as distinct from the fact, of the dismissal. In contrast, the objects of punitive damages are retribution, deterrence and denunciation as opposed to compensation, and punitive damages are restricted to cases where an employer’s conduct is so malicious and outrageous that it is deserving of punishment: Vernon v. British Columbia (Liquor Distribution Branch), 2012 BCSC 133; Rodrigues v. Shendon Enterprises Ltd., 2010 BCSC 941.

[Emphasis added.]

I will therefore deal with each head of damages separately.

The Michael Lacombe Group Inc. in which the plaintiff was awarded $25,000 due to allegations of theft raised by the employer during the plaintiff’s termination.

[141] In my view, in light of these cases and the conduct of the company in the manner of dismissal, I award the plaintiff $15,000 in aggravated damages.

Punitive Damages

[142] Punitive damages, unlike aggravated damages, are directed toward punishment and will be awarded by a court if “there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behavior”: Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 94. The goals of punitive damages include retribution, deterrence and denunciation and an award of punitive damages is only appropriate if these objectives cannot be accomplished by compensatory damages alone.

[143] The threshold for punitive damages is high as can be seen in the decision in Honda where the Court reversed the trial judge’s decision to award punitive damages and stated the following:

[68] Even if I were to give deference to the trial judge on this issue, this Court has stated that punitive damages should “receive the most careful consideration and the discretion to award them should be most cautiously exercised” (Vorvis, at pp. 1104-5). Courts should only resort to punitive damagesinexceptionalcases(Whiten,atpara.69). Theindependent actionable wrong requirement is but one of many factors that merit careful consideration by the courts in allocating punitive damages. Another important thing to be considered is that conduct meriting punitive damages awards must be “harsh, vindictive, reprehensible and malicious”, as well as “extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment” (Vorvis, at p. 1108). The facts of this case demonstrate no such conduct. Creating a disability program such as the one under review in this case cannot be equated with a malicious intent to discriminate against persons with a particular affliction.

[Emphasis added.]

additional conduct on the part of the company that is distinct from the conduct that forms the basis of the claim for aggravated damages. The award for aggravated damages in this case adequately achieves the objective of retribution, deterrence and denunciation: Veron at para 383.

Conclusion

[145] In summary, for the reasons set out above, the plaintiff was wrongfully dismissed for cause and is entitled to eight weeks’ severance, calculated on her total weekly wages earned in the last 8 weeks of her employment with the company as provided in the Act, and in addition, to $15,000 in aggravated damages.

[146] Costs are awarded to the plaintiff unless there are circumstances which bear of this issue of which I am not aware. In that eventuality, the parties may make arrangements for submissions through Supreme Court Scheduling.

“Harris, J.”