Chu v China Southern Airlines Company Limited, 2023 BCSC 21 (CanLII)
The plaintiff, Mr. Chu, worked for CSA, controlled by the Chinese government, between 2008 and 2019, when he was terminated for cause, including unspecified allegations of incompetence and “time theft.” In the first three years, he was a contractor. He worked full-time from 2011 and 2019. He worked as Marketing and Business Development Manager until early 2018, when he was demoted to a front-line customer service position with a 25% pay cut and little training. He worked in that capacity for about one year. His demotion followed a change of the General Manager for British Columbia. He was 68 years old at the time of termination.
In his wrongful dismissal action, Chu alleged that “beginning in February 2018, CSA engaged in broad and sustained pattern of bad faith abusive conduct, including unfair discipline, insincere warnings, manufactured cause, and public embarrassment.” He alleged that CSA’s bad faith conduct continued throughout the course of the litigation. Following a summary trial, the court agreed with Chu on both counts. CSA was originally represented by counsel in the action but later chose to be self-represented. That did not work out well. The Court noted that “very little of the plaintiff’s evidence and that of the other plaintiff witnesses is contested.” The Court also found that CSA failed to adduce evidence from key witnesses, including the former and current General Manager.
In assessing damages, the Court considered the Bardal factors. While he was in a low-level position at the time of termination:
[127] … CSA continued to rely on the plaintiff for senior management duties. He was required to help other employees fulfill duties that he was formerly responsible for. …
[128] The plaintiff’s relevant work experience at the time of his termination was in the fields of air travel and tourism, specifically focused upon the Chinese and Canadian markets. His title of Marketing and Business Development Manager aptly described his functions with CSA. In my view, in assessing damages, it is not appropriate to focus on his most recent assignments as a customer service representative and an airport operations worker. This is for two reasons: (1) he was unilaterally and unfairly placed in these jobs without consultation, as part of the defendant’s efforts to terminate his employment by one means or another; and (2) he was not suited to these jobs. Much more relevant is the plaintiff’s prior experience with CSA as its Marketing and Business Development Manager.
The Court found that while Chu’s length of service, as an employee, was eight years, his services as a contractor should not be ignored. He was 68 at the time of termination. There was no reasonably comparable employment available to the plaintiff and he ended up working as a DoorDash delivery driver. In the circumstances, 20 months’ notice was appropriate.
With respect to aggravated damages, the Court relied upon the principles set out in Hrynkiw v. Central City Brewers & Distillers Ltd., 2020 BCSC 1640 (paras. 190-193). The Court had “no difficulty concluding that CSA breached its duty of good faith and fair dealing in the manner of the plaintiff’s dismissal.” The Court accepted “the plaintiff’s evidence that he suffered from mental distress from March 2018, well before he was terminated, and then for approximately one year post-termination.” CSA’s conduct merited a $50,000 award for aggravated damages.
The Court concluded that CSA’s conduct met the threshold for punitive damages. CSA’s conduct could comfortably be described as “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.” The conduct included the employer’s conduct throughout the litigation, making “vicious, vindictive, and unfounded allegations that it knew or ought to have known could not be supported,” and compelling the Plaintiff to make “multiple pre-trial applications to enforce compliance with its obligations as a litigant,” designed to frustrate the Plaintiff’s claim. The compensatory damages were relatively modest, approximately $108,000. In the result, the Court awarded $100,000 in punitive damages.