The Nova Scotia Court of Appeal has upheld a ruling that awarded 12 months’ notice and $15,000 in aggravated damages to a seasonal landscape worker who was dismissed after 17 years on the job.
As reported by HR Law Canada last September, the case involved a worker — JH — employed by Elmsdale Landscaping. He was suspended for performance issues and ultimately laid off.
He was issued a record of employment (ROE) saying it was due to lack of work, even though the company was actively hiring. Two months later, it offered to recall him but JH had taken another job.
The employer appealed, arguing that some of the trial judge’s finding should be ignored or set aside because she failed to consider or misunderstood evidence. It called into question all aspects of the ruling, including the test for constructive dismissal; the notice period for a seasonal worker; the duty to mitigate; and the aggravated damages award.
But the Court of Appeal noted that “significant deference” must be given to a trial judge’s assessment of the evidence and factual findings.
“Not only must an error of fact be clear and obvious, it must also be so significant that it impacts the outcome,” it said.
Elmsdale failed to prove that on appeal, it said. Instead, the court said the employer was essentially re-arguing evidence and asking it to reach a different factual conclusion than the trial judge. It reviewed the evidence and found that a conclusion of wrongful dismissal in this case was “fully supported by facts and applicable law.” It dismissed that ground of appeal.
Reasonable notice period for seasonal employees
The court said that calculating notice in a wrongful dismissal case is “inherently fact specific.” Given the nature of determining notice, appeal courts give significant deference to the trial judge’s determination.
Elmsdale Landscaping argued that seasonal employees should never have a notice period that extends beyond the end of the season. The appeal court shot that line of thinking down.
“In my view, there is no such principle. As noted by the trial judge, in the leading case of Bardal, the Supreme Court of Canada is clear that categorization of notice periods for particular classes of employment is not permissible,” it said.
It dismissed that ground of appeal.
Mitigation
The employer argued JH failed to mitigate his damages when he refused the offer to return to Elmsdale Landscaping.
The employer’s main argument was that feeling “awkward” is not a good enough reason to turn down a job. The trial judge found JH acted reasonably by not returning to work with the same employer, considering his treatment and the mixed signals he received about his job status.
“My friend said that he decided not to return to work because he felt it would be awkward. And I’ll just note for the Court that ‘awkward’ is not the legal standard for mitigation by accepting an alternative offer of employment with the same employer,” counsel for the employer submitted in the original trial.
The trial judge also considered JH’s decision to pursue carpentry rather than landscaping and concluded that he took reasonable steps to find new work. The trial judge also noted the burden is on the employer to prove failure to mitigate, and that JH’s behaviour was reasonable.
There was no palpable or overriding error in her thinking, and the appeal court dismissed this ground of appeal as well.
Aggravated damages
The trial judge concluded that Elmsdale had engaged in bad faith of the dismissal of JH.
It noted the employer was not candid with JH about his suspension, its duration or any conditions that may have ended it. A phone call from the business owner “reasonably created anxiety and uncertainty.” It noted the long history between the parties, and that the employer had made meaningful accommodations to JH to help support his personal circumstances.
“It was an act of bad faith for those personal accommodations to be the subject of (the owner’s) call to (JH) by calling him ‘bad with money,'” the trial judge said.
It concluded that it was clear that JH specifically was not to be recalled, even if work was available.
Elmsdale argued, on appeal, that to support aggravated damages the conduct must relate to the “manner of termination.”
“In my view, this submission is overly narrow and is not an accurate representation of the principles governing the assessment of allegedly bad-faith conduct on the part of an employer,” the appeal court said.
It ran through the conduct, including putting him off work for performance concerns that were never justified at trial; offering him work that paid less money; an abusive call from the president of the company when he questioned the demotion; and the ROE and letter that both said he was laid off due to lack of work at a time when the company was hiring.
All of those issues fall within the scope of “manner of dismissal,” the appeal court ruled. The decision to award $15,000 was reasonable, it said.
It dismissed the appeal and awarded costs to JH of $6,700.
For more information, see Elmsdale Landscaping Ltd. v. Hiltz, 2023 NSCA 56 (CanLII)
