Fobert v MCRCI Medicinal Cannabis Resource Centre Inc., 2020 BCSC 2043 (CanLII) <https://canlii.ca/t/jcb3r>
The plaintiff sought damages for wrongful termination of her employment by the defendants MCRCI Medicinal Cannabis Resource Centre Inc. (“MCRCI”) and Global Health Clinics Ltd. (“Global Health”). She sought damages for reasonable notice, aggravated damages and punitive damages.
Ms. Fobert was 26 years old. She was working for MCRCI, a wholly owned subsidiary of Global Health, a publicly traded company, as an intake-specialist, a front-line position. She worked under an Employment Agreement which included a termination provision that required MCRCI to provide Ms. Fobert with 30 days’ notice of termination or pay in lieu, if terminated without cause. The court had no difficulty finding that the termination provision was void and unenforceable as contrary to the Employment Standards Act.
Due to corporate and operational changes, she was terminated without cause on May 29, 2019. There followed some discussions about her being paid her statutory severance. Global Health indicated that an offer of one week’s severance and their unpaid wages might be on offer. When she attended a meeting, one of the directors of Global Health, Liu, offered her “500 bucks” – on a take-it or leave-it basis – and made references to “you guys have misplaced millions.” She filed a complaint with the Employment Standards Branch, which was settled. The court found that the settlement agreement was limited to the employment standards claim and did not bar Fobert from suing for reasonable notice.
Liu, who had made the offer, did not testify at trial although he was listed as witness. At trial the company sought to withdraw statements in the Response, among others to the effect that Liu did not represent to company, which the court did not accept. It is fair to say that the learned trial judge found the testimony of the company witness wanting in terms of credibility.
Fobert asserted that by the time she was terminated, both MCRCI and Global Health were her employers, relying on the common employer doctrine as discussed in Shoolestani v. Ichikawa, 2016 BCSC 347, and case law considered there: a sufficient degree of relationship between the corporate entities exists, an element of common control, such factors as individual shareholdings, corporate shareholdings and interlocking directorships, “there is no reason in law or in equity why they ought not all to be regarded as one for the purpose of determining liability for obligations owed to those employees …“. What is sufficient connection to establish a common employer it appears will depend on the details of each relationship. The learned judge concluded that there was ample evidence to establish a high degree of proximity between the defendants or a relationship with an element of common control.
In the circumstances of the case, including Fobert’s age (25), short duration employment (18 months), limited educational background, general nature of her position, and securing comparable employment relatively soon after termination, the court found that 8 weeks was reasonable. The court did not accept the company’s submissions that she failed to mitigate.
However, the court did award aggravated and punitive damages. The defendants’ bad faith conduct did not result in the extreme consequences. Fobert’s mental distress was quite intense initially, with the help of counselling and no doubt her own resilience, she improved and recovered quickly. In light of the compensatory purpose, the court awarded her $25,000 in aggravated damages. At the same time, the court considered that, despite the award of aggravated damages, punitive damages were also necessary to effectively deter and also to denounce the range of misconduct in this case. Applying the principle of proportionality and considering the facts relevant to the relevant dimensions, the court awarded $35,000.