Employer’s actions before termination might be relevant to the duty of good faith in manner of dismissal: B.C. Court of Appeal

Illustration: Dall-E/HR Law Canada

The Court of Appeal for British Columbia has ruled that an employer’s conduct predating termination might be relevant when it comes to the duty of good faith in the manner of dismissal.

The ruling stems from a yet-to-be-tried wrongful dismissal case between the Province of British Columbia and the former executive-director for the Cross Government Compliance and Enforcement Secretariat. The worker, WT, was in her role from May 1987 until her high-profile termination on June 29, 2017.

The Province sought to strike out WT’s claims related to allegations of bad faith as “disclosing no reasonable cause of action.” That application was dismissed by the Supreme Court of British Columbia on June 22, 2023. The Province appealed that ruling to the Court of Appeal.

Seconded to Ministry of Health

WT pleads that, in June 2012, she was seconded to the Ministry of Health to help with an investigation into the alleged misuse of private health-care data by government employees and contractors.

Unexpectedly, the Ministry of Health terminated several employees and ended contracts based on recommendations unknown to WT, prematurely halting the investigation before a final report could be issued, she said.

This action garnered significant public scrutiny, wrongly placing WT in the spotlight as the lead investigator, exposing her to public confrontation and concerns for her safety without any protective measures from the Province, she alleged.

The British Columbia Ombudsperson later reviewed the controversial terminations, prompting WT to address numerous inaccuracies — 170 by her count — in the report, incurring substantial legal fees. Further complicating matters, she faced a personal investigation by the British Columbia Public Service Agency, necessitating additional legal counsel, she said.

Termination

Her employment was abruptly terminated on June 29, 2017, allegedly by Deputy Minister Henderson, with WT apparently being informed just half an hour before a public announcement regarding compensations for those affected by the Ministry of Health terminations.

This move positioned WT as a scapegoat for the Province’s embarrassment over the fallout, causing her significant personal and professional harm, she alleged.

WT’s legal battle began when she filed a notice of civil claim in June 2019, seeking damages for wrongful dismissal and alleging that the Province breached the duty of good faith in both her employment and her termination.

In upholding the lower court’s original decision, the Court of Appeal emphasized that conduct predating termination could be relevant if it contributed to the manner of dismissal.

“Generally, employers in British Columbia are not required to provide an employee with a reason for the employee’s termination if they provide reasonable notice or payment in lieu,” the Court of Appeal said.

“The Province asserts that it did just that. However, the crux of (WT’s) claim is that through her termination, she was made ‘a scapegoat for BC with respect to the [Ministry of Health] terminations.’ This is the core of her bad-faith claim. It would have been wrong for the judge, and wrong for this Court, to decide at this time what aspects of the parties’ conduct preceding the termination will prove to be relevant at trial in this developing area of law.”

At this stage, given the recognized potential for development of the law surrounding the duty of good faith in an employment context, “I do not think that it can be said that (WT’s) bad faith pleadings are bound to fail,” the Court of Appeal said.

The appeal was dismissed.

For more information, see British Columbia v. Taylor, 2024 BCCA 44 (CanLII).

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