Burd v Tahtsa Timber Ltd., 2022 BCSC 1372 (CanLII)
The plaintiff was 68 years old and a commercial truck driver working for the defendant logging contracting company. He had started working for the defendant around 2003. The plaintiff worked for the defendant through until August 2019. By all accounts he was a safe and conscientious driver. Due to a medical emergency, he underwent heart surgery. His doctor recommended staying off work for three months. After the three months had expired, the plaintiff was still not up to returning to work, so he had a discussion with the defendant’s truck foreman, about returning to work in the summer of 2020. The plaintiff says foreman agreed. In June 2020, the plaintiff obtained medical clearance to return to work. There was conflicting evidence as to whether the plaintiff contacted the employer with respect to return to work, which the defendant denied. The employer’s evidence was that it assumed the plaintiff had resigned. The plaintiff obtained lower paying employment, which he subsequently left. After leaving that company, the plaintiff says that “given my age and recent medical history, it was difficult for me to obtain further alternative employment. I understand and expect that I am not an appealing candidate for a commercial trucking organization”
The question was whether the plaintiff quit. The Court found that the circumstances of the case were similar to those in Beggs (Beggs v. Westport Foods Ltd., 2011 BCCA 76), as well as Wong v. Polynova Industries Inc., 2021 BCSC 603, in that, as in those cases, the parties were operating under a misapprehension of the other’s intentions due to a lack of communication.
The Court noted:
[25] As noted by Justice Tammen in Wong, the evidence here is equally consistent with a finding that the plaintiff did not intend to resign and, alternatively, a finding that it was objectively reasonable for the defendant to conclude that the plaintiff had in fact abandoned his employment and had therefore effectively resigned.
[26] Both parties acknowledge that the employment relationship terminated. In my view, the proper characterization of that termination turns on the events of August and September 2020. The plaintiff deposes that in August of 2020, he went to the defendant’s office and was handed a phone to speak to Mr. Van Den Boogaart. According to the plaintiff, Mr. Van Den Boogaart said he would call the plaintiff at a later date, but he never did. He says he did not hear from the defendant again. Mr. Van Den Boogaart does not address this evidence in either of his affidavits. However, in his second affidavit, he deposes that he did speak to the plaintiff on August 26, 2020 and to his recollection, they discussed fall hauling.
[27] The fact that they discussed fall hauling supports a finding that as of late August 2020, the employment relationship was still intact. It is common ground however that thereafter, the plaintiff did not drive again for the defendant.
The plaintiff did not quit. The employer’ failure to the failure to take meaningful steps to confirm that assumption that the plaintiff had quit proved fatal to the defence.
With respect to reasonable notice, the Court found: “Taking account of all of the circumstances, including the minimal evidence of steps taken in mitigation, I find that a reasonable notice period is 15 months.”
The Court did not find aggravated damages appropriate.