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B.C. court rules in favour of music therapist who ‘frightened’ client with her tattoo

by HR Law Canada

The Supreme Court of British Columbia has ruled in favour of a music therapist who sought damages for wrongful dismissal against Creative Music Therapy Solutions Inc. (CMTS).

The termination came about following a complaint about one of her tattoos that “frightened” a client, and the fact she took work without discussing it or routing the contract through CMTS.

The court concluded that C.D., who provided music therapy services for CMTS for over a decade, was a dependent contractor and entitled to reasonable notice upon termination. The case highlights the nuances in determining employment status and the obligations that companies have towards their contractors.

Nature of the employment relationship

C.D., a highly qualified music therapist with a Bachelor’s and Master’s degree in music therapy, began working for CMTS in 2010 under a written agreement titled “Terms of Agreement.”

For more than 12 years, she provided music therapy services to various clients of CMTS. Despite this long-term relationship, CMTS contended that C.D. was an independent contractor and not entitled to any severance upon termination.

The court examined the nature of C.D.’s working relationship with CMTS to determine if she was a dependent contractor. The court found that her work for CMTS met several key criteria indicating dependence, including the duration and permanence of the relationship, economic dependency, and the degree of control CMTS had over her work.

“Although it might not be fairly said that (C.D.) was ‘largely limited exclusively’ to the service of CMTS, in my view she was economically dependent upon her income from CMTS,” the ruling stated.

The tattoo incident

The tattoo issue arose when the director of care at Evergreen Baptist, a facility where C.D. was providing music therapy services, informed her that a client had been “frightened” by her tattoo and requested that she cover it up.

C.D. refused, citing the heat and her immediate need to begin her session.

C.D. was terminated in October 2022 via a “Letter of Discipline/Termination,” which cited the tattoo incident and accepting work from another facility without routing it through CMTS. The court, however, found that neither of these reasons justified immediate termination without notice.

Regarding the issue of accepting work at the Waterford House facility, C.D. testified that she only provided music entertainment services there, not music therapy services, which CMTS claimed fell under its contract’s restrictive terms. The court sided with C.D., stating, “CMTS did not have just cause to terminate the Contract on the basis that (she) was providing music entertainment services to the Waterford.”

As for the complaint about unprofessional behaviour relating to the tattoo, the court found that C.D.’s actions, even if rude, did not warrant immediate termination. “A reprimand or lesser disciplinary measure would have sufficed,” noted the judge.

Damages and mitigation

The court awarded C.D. damages equivalent to twelve months of notice, amounting to $12,090 after considering her efforts to mitigate her losses.

C.D. had continued to earn income through her own business, Music for Life, during the notice period, which the court took into account when calculating the final damages.

Claims for aggravated and punitive damages dismissed

C.D.’s claims for aggravated and punitive damages were dismissed. The court did not find that CMTS acted in bad faith or in an unduly insensitive manner.

“Although I have found that (the employer’s) position with regard to work obtained by music therapists from work placements was incorrect, I am unable to find that (it) took that position in bad faith or in an unfair manner,” the ruling explained.

Unenforceable restrictive covenant

CMTS’s counterclaim against C.D. for breaching non-competition and non-solicitation obligations was also dismissed. The court found the restrictive covenant in C.D.’s contract to be ambiguous and unreasonable.

The covenant’s geographic scope was unlimited, and its three-year duration was deemed excessive.

“The Restrictive Covenant is unreasonable and therefore unenforceable, both because it is ambiguous and because its scope is excessive geographically and temporally,” the court concluded.

For more information, see Dibble v Creative Music Therapy Solutions Inc., 2024 BCSC 1066 (CanLII).

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