Date: 20130709
Docket: T-1227-12
Citation:
2013 FC 767
Ottawa, Ontario,
July 9, 2013
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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TL'AZT'EN FIRST NATION
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Applicant
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and
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VINCENT JOSEPH
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of an adjudicator acting
under the Canada Labour Code, RSC 1985, c L-2, dated May 22, 2012,
wherein the adjudicator found that the respondent had been unjustly dismissed
and awarded compensation for employment related losses, as well as aggravated
and punitive damages.
[2]
In
its notice of application, the applicant only contests the aggravated
and punitive damages awarded to the respondent.
FACTS
[3]
The
respondent had served the applicant for more than thirty years prior to his
dismissal. At the time of his termination, he was the director of the
applicant’s health department. All of his activities were subject to oversight
and approval by either Mr. Gregg Drury, the applicant’s executive director, or
the Chief and Council of the applicant.
[4]
After
the respondent, along with two other senior members of the health department,
sent a letter to Mr. Drury criticizing his management style, Mr. Drury began to
target the respondent with unsupported accusations of fraud and mismanagement.
[5]
Aggravated
by the relentlessly threatening and harassing conduct of Mr. Drury, the
respondent’s health deteriorated to the point that he was compelled to take
medical leave under the care and supervision of his doctor. At all times, the
applicant knew he was on medical leave.
[6]
While
the respondent was on medical leave, Mr. Drury continued his vicious campaign
of intimidation. For example, he wrote letters to the respondent accusing him
of insubordination for visiting his doctor, and of intentionally attempting to
defraud the applicant in his calculation of sick leave benefits.
[7]
When
the then Chief of the applicant terminated Mr. Drury for reasons relating to
improprieties in his management and administration of the applicant’s affairs,
Mr. Drury mounted a political campaign against the Chief, including a
memorandum to the applicant’s Council in which he made fabricated and malicious
accusations regarding the respondent, including:
i)
criminal
wrongdoing in his oversight of expenditures;
ii)
insubordination
to the “authority chain of command”;
iii)
forcing
an employee to illegally remove files from his office and burning the files;
iv)
blackmailing
the Chief; and
v)
sexually
assaulting another employee.
[8]
The
accusations were widely distributed within the community and throughout the
region. They destroyed the respondent’s reputation in the community and his
professional standing among government agencies.
[9]
The
respondent was terminated without notice or compensation by the applicant.
THE IMPUGNED
DECISION
[10]
In
his forty page decision, the adjudicator reviewed the evidence before him and
concluded that:
-
the
respondent’s responsibilities in the health department were entirely
operational and not managerial;
-
none
of the allegations the applicant made to justify the termination of the
respondent, many of which were “vile and serious allegations of fraud,
deception and mismanagement”, were proven at the hearing and the applicant’s
own evidence substantiated that it knew throughout that all of the allegations
were completely baseless;
-
the
applicant’s contention that the respondent had abandoned his job was completely
unfounded; and
-
it
was plainly evident from the real facts that the treatment of the respondent by
the applicant’s executive director was “high-handed and malicious”.
[11]
The
adjudicator reviewed relevant case law on remedies, particularly aggravated
damages, punitive damages and solicitor-client costs, and assessed the damages
as follows:
95. In my view, to fairly and reasonably compensate
Mr. Joseph for his unjust dismissal and its directly resulting consequences for
him, and to appropriately and demonstrably censure the Respondent for its
deliberate, despicable, and deceitful treatment of Mr. Joseph, damages are
equitably assessed as follows:
a. For employment related losses, an amount equal to
21 months’ severance, plus 20% for benefits ($84,420 + $16,884), being
$101,304;
b. For consequential damage to his prospect of
future employment, to his mental and physical health and well-being, to his
integrity and dignity, and to his personal and professional reputation,
aggravated damages in the additional amount of $85,000.00;
c. For the reprehensibly dishonest and bad faith
manner of his dismissal by the responsible government of the Tl’azt’en First
Nation, punitive damages in the additional amount of $100,000.00; plus
d. Interest on the total amount of damages, at the
Court ordered interest rate of the Federal Court of Canada from the date of his
unjust dismissal to the date of this Decision; and
e. Mr. Joseph’s legal costs, on a full
solicitor-client basis.
PRELIMINARY
ISSUES
i) Can the
applicant challenge a finding of fact by the adjudicator given the limited
grounds raised in its notice of application?
[12]
The
respondent objects to the applicant’s challenge to the adjudicator’s finding
that Mr. Drury was acting on behalf of the applicant or Chief and Council, as
it had not disputed findings of fact in its notice of application. Regardless,
the applicant’s assertion is in direct contradiction to the evidence that was
before the adjudicator.
[13]
I
agree with the respondent. Rule 301(e) of the Federal Courts Rules,
SOR/98-106, provides that a notice of application shall set out “a
complete and concise statement of the grounds intended to be argued, including
a reference to any statutory provision or rule to be relied on”. As
Justice Pinard noted in Spidel v Canada (Attorney General), 2011 FC 601
at para 16, this is mandatory language.
[14]
There
were no grounds set out in the applicant’s notice of application that related
to errors of fact. The only grounds raised in the notice of application related
to the adjudicator’s awards for aggravated and punitive damages. Accordingly,
the applicant’s submissions regarding its liability for the bad faith conduct
of Mr. Drury are not properly before the Court.
ii) Admissibility
of the affidavits of Lorne Brown, Diana Martinson and Joshua Hallman
[15]
The
respondent submits that despite receiving over one month’s notice that he would
seek extensive punitive damages, in addition to damages related to defamation,
mental distress and loss of personal and professional reputation, the applicant
never submitted evidence before the adjudicator on its ability to pay a
punitive damages award. The applicant now relies on the affidavits of Lorne
Brown, Diana Martinson and Joshua Hallman to present evidence that was not
before the adjudicator and does not fall within the narrow exceptions permitted
by the Court for the submission of evidence that was not before the tribunal.
The respondent notes that Lorne Brown and Diana Martinson were not present at
the hearing and that although Joshua Hallman was a witness at the original
hearing, his affidavit does not reconstruct the evidence that was before the
adjudicator.
[16]
It
is settled law that as a general rule, affidavit material in an application for
judicial review is restricted to providing the reviewing court with a record of
what was before the tribunal (Bekker v Canada, 2004 FCA 186 at para 11; Canadian
Tire Corp. v Canadian Bicycle Manufacturers Assn., 2006 FCA 56 at para 13 [Canadian
Tire Corp.]). To allow additional material to be introduced at judicial
review that was not before the decision-maker would in effect transform the
judicial review hearing into a trial de novo, which is not the purpose
of judicial review (Ochapowace First Nation (Indian Band No. 71) v Canada
(Attorney General), 2007 FC 920 at para 10). There are a few recognized
exceptions to the general rule against the Court receiving evidence that was
not before the decision-maker, namely that the evidence outlines either the
general background to the case, procedural defects not on the record, or a
complete absence of evidence before the decision-maker to support a particular
finding.
[17]
I
agree with the respondent that the three affidavits are inadmissible. Other
than statements related to the affiants’ credentials, all the information
contained in the affidavits of Lorne Brown, Diana Martinson and Joshua Hallman
relates to the applicant’s financial situation, including its limited financial
resources, its obligations to provide services to members and its ability to
pay damages to the respondent. This evidence was not before the adjudicator.
Nor does it fall under any exception to the general rule against new evidence
being admissible on judicial review. As such, the affidavits
of Lorne
Brown, Diana Martinson and Joshua Hallman are struck from the record.
iii) Admissibility
of the cross-examination of the respondent
[18]
The
respondent maintained a running objection to all questions asked in his
cross-examination and now submits the entire 200 page transcript of his
cross-examination should be struck from the record. The respondent only found
one set of questions which were directed at reconstructing the factual record
before the original panel, but submits the questions continue to be
inadmissible due to irrelevance, as they do not assist the Court on any issue
before it. The set of questions reads as follows:
Q You
advised Mr. Borowitz [the adjudicator] that you had worked 30 years for the
band, correct?
A Yes.
Q Did
you explain to Mr. Borowitz - - and unfortunately because there’s no transcript
or no record of what was said - - did you explain to Mr. Borowitz at that time
that there was a two-year period that you were not employed by the band?
A It
wasn’t asked.
Q So
the answer is you didn’t - -
A It
wasn’t asked.
Q You
were asked how long you worked for the band, correct?
A It’s
still employment with the band because you still get band funds to be a
councilor. You get an honorarium.
[19]
Again,
I agree with the respondent. The length of time the respondent worked for
the applicant and the portion of that time the respondent spent as a contractor
or councillor are irrelevant to the issues before the Court, as the applicant
has not challenged the adjudicator’s award of employment-related damages. Only
the awards of aggravated damages and punitive damages are challenged in these
proceedings. As none of the cross-examination dealt with reviewing the record
before the adjudicator on the issues of aggravated damages and punitive
damages, the transcript of the cross-examination must be struck from the
record.
ISSUES
[20]
This
application for judicial review raises the following issues:
- Was the adjudicator’s award of
$85,000 in aggravated damages reasonable?
- Was the
adjudicator’s award of $100,000 in punitive damages reasonable?
[21]
For
the reasons noted above, the applicant’s submissions regarding
its liability for the bad faith conduct of Mr. Drury are not properly before
the Court. As such, this issue will not be addressed. These reasons are
premised on the adjudicator’s factual finding that Mr. Drury acted on behalf of
the applicant as the Executive Director at all times that his actions
prejudiced the respondent. Furthermore, there is no indication in the record
that the issue of Mr. Drury not acting on behalf of the band was ever raised
before the adjudicator.
STANDARD OF
REVIEW
[22]
The
applicant challenges the remedies of aggravated and punitive damages chosen by
the adjudicator. In Opaskwayak Cree Nation v Booth, 2009 FC 225 at
paragraphs 23 and 24, Madam Justice Dawson held that the reasonableness
standard of review applied to the remedy chosen by an adjudicator appointed
under section 242 of the Canada Labour Code, RSC
1985, c L-2:
[23] The first asserted error attacks the
adjudicator's determination that the dismissal was unjust and his choice of
remedy. These are questions of mixed fact and law. I am required to consider
whether the existing jurisprudence has already determined in a satisfactory
manner the degree of deference to be accorded to such determinations. See: Dunsmuir
v. New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190 at paragraphs 57
and 62.
[24] In my view, the jurisprudence has settled
this question. Questions of mixed fact and law decided by adjudicators
appointed under section 242 of the Code are reviewable on the standard of
reasonableness. See: Colistro v. BMO Bank of Montreal (2008), 378 N.R.
288 at paragraph 6(F.C.A).
[23]
Similarly,
the reasonableness standard of review applies to both issues raised in this
application.
ARGUMENT AND ANALYSIS
1. Was
the adjudicator’s award of $85,000 in aggravated damages reasonable?
[24]
The
applicant submits the adjudicator erred by not assessing the actual damages
suffered by the respondent as a result of the manner of his dismissal (Honda
Canada Inc. v Keays, 2008 SCC 39 at para 59 [Keays]). In fact, each
of the decisions on which he relied gave awards that were significantly lower
than the amount awarded in this case (Waldman v Eskasoni Band Council,
[2001] FCJ 1228 at para 33 [Waldman]; Downham v Lennox and Addington
(County), [2005] OJ 5227 [Downham]; Piresferreira v Ayotte,
2010 ONCA 384 at para 95 [Piresferreira]).
[25]
The
applicant argues that the only rationale provided in the adjudicator’s reasons
for the $85,000 award was a reproduced argument of the respondent on the issue
at paragraph 74 of the decision.
[26]
Moreover,
unjust dismissal cases involving first nations bands where complainants were
awarded much smaller amounts of aggravated damages, or none at all (Gullstrom
v Tlowitsis-Mumtagila First Nations, [1997] BCJ 367 at para 67; Dignean
v White Bear First Nation No. 70, 1999 SKQB 3 at para 19 [Dignean]; Solomon
v Alexis Creek Indian Band, [2007] BCJ 680 at paras 55-56) [Solomon]).
[27]
Accordingly,
the applicant argues the award of aggravated damages be set aside or, in the
alternative, be reduced to $10,000.
[28]
On
the other hand, the respondent submits the adjudicator’s award of aggravated
damages in the amount of $85,000 is consistent with the case law. Where there
is general insensitivity and the employee can prove mental distress as a
result, damages are awarded around the $20,000 range (Trask v Terra Nova
Motors Ltd., [1991] NJ 112; Simmons v Webb, [2008] OJ 5249, aff’d
2011 ONCA 7). Where the conduct becomes more severe, outrageous and heavy
handed, there is normally a corresponding finding of damages above $40,000 (Downham, above;
Zesta Engineering Ltd. v Cloutier, 2010 ONSC 5810; Piresferreira,
above; Harbour Air Ltd. v Maloney, [2012] CLAD 105). In the case at bar,
the adjudicator outlined a clear need for aggravated damages and found that
there was a clear causal relationship between the applicant’s conduct and the
respondent’s physical and mental health, as well as the respondent’s
reputation. As such, the respondent submits the award of aggravated damages was
clearly reasoned and entirely warranted.
[29]
For
the following reasons, I agree with the respondent.
[30]
In
my view, the adjudicator properly understood the principles relating to
aggravated damages. He cited as an authority on the matter Kelowna
Flightcraft Air Charter Ltd. v Buchanan, 2010 BCSC 1650 at paragraphs 13 to
18 [Kelowna]. This decision summarized the Supreme Court’s guidance on
aggravated damages that it set out in Keays and in Wallace v United
Grain Growers Ltd., [1997] 3 S.C.R. 701 [Wallace]. The principles
summarized in Kelowna at paras 13 to 18 include the following:
-
The
term aggravated damages is used to refer to compensatory damages flowing from
the manner in which employment is terminated (Keays, at para 62);
-
Damages
resulting from the manner of dismissal must be available only if i) they result
from the circumstances described in Wallace, namely where the employer
engages in conduct during the course of dismissal that is “unfair or is in bad
faith by being, for example, untruthful, misleading or unduly insensitive” (Keays,
at para 57) and ii) if the manner of dismissal caused mental distress that was
in the contemplation of the parties (Keays, at para 59);
-
The
term “bad faith” in reference to damages is to be given a broad definition and
is not intended to refer to the kind of deliberate wrongful and malicious
conduct that gives rise to a claim for punitive damages (Kelowna, at
para 16 citing Keays, at paras 57-58);
-
Examples
of conduct in dismissal resulting in compensable damages include attacking the
employee’s reputation by declarations made at the time of dismissal and
misrepresentation regarding the reason for the decision (Keays, at para
59); and
-
The
employer’s pre-termination and post-termination conduct may be relevant to the
issue of bad faith in the manner of dismissal, as an employee’s actual
termination may be part of a larger pattern of conduct. The adjudicator
referred to Kelowna, at para 18 citing Gismondi v Toronto (City),
[2003] OJ 1490 at para 23 (Ont CA), in which the Court of Appeal stated the
following:
23 … I do not disagree with the trial judge’s
view that Wallace damages are not limited to acts of the employer at the very
moment of dismissal and can in appropriate circumstances include “the employer’s
conduct pre- and post-termination ... and the conduct of the employer in its
aftermath” but only, in my view, as a component of the manner of dismissal.
[31]
The
case law supports the adjudicator’s decision in the case at bar to award
aggravated damages to compensate the respondent for “consequential damage to
his prospect of future employment, to his mental and physical health and
well-being, to his integrity and dignity, and to his personal and professional
reputation”.
[32]
As
noted by the adjudicator, in Downham, above, at
paras 253-256, the Ontario Superior Court of Justice awarded aggravated damages
due to loss suffered from a damaged reputation:
253 Wallace held that where “bad faith” or
unfair conduct of the employer causes intangible losses such as humiliation,
embarrassment, damage to self-esteem, these losses should be compensated for
even if there is no consequent tangible loss.
254 The intangible damage flowing from wrongful
actions of the employer in the case before me resulted in humiliation,
embarrassment, loss of self-esteem and loss of enjoyment of social activities.
Unlike the routine case, these losses were not temporary. These losses have
continued for the better part of 4 years up to the present. I find that the
losses will be diminished by this judgment but that there will be a lingering
loss. As the plaintiff has already experienced, “clouds” on one's character are
difficult to eradicate.
255 I assess these losses at $50,000.
[33]
In
Downham, the Court considered aggravating factors in the
pre-termination and post-termination events in its assessment of the
complainant’s damages (see Downham, at paras 231 and 233). The
aggravating factors included the following findings:
-
a
letter given to the complainant advising him of his suspension contained
extremely serious findings which were “essentially groundless”;
-
this
letter was intended to cause the complainant personal distress and to destroy
his professional career;
-
a
subsequent report about the complainant contained numerous statements of fact
and conclusions which were unfounded and the report was circulated to
politicians whose knowledge would inevitably lead to problems in a small
community;
-
the
complainant had to live with the consequences of the employer’s unfounded
allegations for more than three years and it had affected all areas of his
life, including his social life and employment; and
-
the
employer maintained its position at trial and contended that the errors they
acknowledged in the report were inconsequential.
[34]
Similarly,
in the present case, the applicant made numerous allegations towards the
respondent, which it maintained at the hearing before the adjudicator.
The adjudicator found that all the allegations were unfounded and that both the
respondent’s reputation in his community and his professional standing among
government agencies were predictably destroyed when a number of the allegations
were widely distributed publicly.
[35]
As
a consequence the complainant suffered damage to his health in the manner in
which he was dismissed. The adjudicator made the following findings in his
decision:
28. The Executive Director’s malevolence to the
Complainant appears to have originated in a letter the Complainant and two
other senior members of the Health Department had sent to the Executive
Director expressing concern about his management style. He took affront to the
letter, stating in his testimony that it was a breach of the Respondent’s “Code
of Conduct”. From that point on, he targeted the Complainant with
unsupported accusations of fraud and mismanagement. It was a relentless
witch-hunt.
…
31. Aggravated by the relentlessly threatening and
harassing conduct of the Executive Director, the Complainant’s health
deteriorated to the point that he was compelled to take medical leave under the
care and supervision of his doctor.
…
33. While the Complainant was on medical leave, the
Executive Director continued his vicious campaign of intimidation. He wrote
letters to the Complainant accusing him of insubordination for visiting his
doctor, and of intentionally attempting to defraud the Respondent in his
calculation of sick leave benefits.
[Emphasis added]
[36]
Thus,
the adjudicator did not err in awarding aggravated damages in part on the
damage the respondent suffered to his physical and mental health.
[37]
Lastly,
the jurisprudence also supports the adjudicator’s decision to award aggravated
damages on the basis of damage to the respondent’s integrity and dignity. In Waldman,
above, at para 33, this Court upheld aggravated damages awarded to a
complainant for the “manner of his dismissal, and the humiliation of being
escorted off the premises”. The quantum of aggravated damages awarded in the
circumstances of that case was $23,750.
[38]
Similarly,
in the case at bar, the respondent was humiliated at his workplace when the
Executive Director purported to make a workplace rule that no employee of the
applicant was allowed to speak with the complainant while he was on medical
leave, even on their own personal time away from work. Again, it was reasonable
for the adjudicator to take this factor into account.
[39]
I
am also satisfied that the quantum of damages the adjudicator awarded
was reasonable, considering that in Downham the complainant was awarded
$50,000 in aggravated damages for loss related only to humiliation,
embarrassment and damage to self-esteem.
[40]
Therefore,
given that the adjudicator awarded the aggravated damages flowing from the
manner in which the respondent was dismissed to compensate him for numerous
losses related to his prospect of future employment, his health, his
integrity and dignity, and his reputation, an award in the present case of
$85,000 is entirely justifiable. This amount is not inconsistent with the case
law involving extreme, heavy handed conduct that had a severe impact on the
person being compensated.
[41]
For
all these reasons, I find the decision of the adjudicator on aggravated damages
to be reasonable. The decision is justified, transparent and
intelligible, and the reasons allow the Court to understand why the adjudicator
made his decision (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 at para 16).
2. Was
the adjudicator’s award of $100,000 in punitive damages reasonable?
[42]
The
applicant submits a punitive damage award of $100,000 is not appropriate in
this case. The adjudicator erred by making no concluding statements with
respect to punitive damages and no finding of an independent actionable wrong
that would give rise to punitive damages (Greater Toronto Airports Authority
v Public Service Alliance Canada, Local 0004, [2011] OJ 358, at paras
121-128).
[43]
In
the alternative, the applicant argues that if punitive damages should be
awarded, the amount should be lowered. The adjudicator had to assess punitive
damages with respect to the totality of the damages he had already awarded, yet
he failed to perform any rationality and proportionality analyses. The $100,000
award far from meets the aims of punitive damages and is so excessive that it
has in essence crippled the applicant.
[44]
Accordingly,
the applicant argues the award of punitive damages be set aside or, in the
alternative, reduced.
[45]
The
respondent submits the adjudicator’s order on punitive damages was reasonable
and well within the range of other punitive damage awards for conduct similar
to the applicant’s (Downham, above, at paras 272-278; Elgert v Home
Hardware Stores Ltd., 2011 ABCA 112 at para 104). Notably, the adjudicator
clearly separated the analyses of punitive and aggravated damages. The
adjudicator outlined the leading case law that both clearly demarcated the
difference between the two heads of damages and outlined the applicable test.
He also separated the actual sums into the appropriate categories at the end of
his decision.
[46]
The
respondent maintains that the principles of proportionality are varied and
require a weighing and balancing of the evidence and the adjudicator’s view of
the required censure. The adjudicator’s impression of the applicant’s conduct
was expressed throughout the decision and his perception that there was a need
for punishment was clear.
[47]
For
the following reasons, I agree with the respondent.
[48]
In
Whiten v Pilot Insurance Co., 2002 SCC 18 [Whiten], the Supreme
Court made numerous conclusions regarding punitive damages and found that a
proper award of punitive damages must look at proportionality in several dimensions,
including the blameworthiness of the defendant’s conduct, the degree of
vulnerability of the plaintiff, the harm or potential harm directed
specifically at the plaintiff and the need for deterrence (Whiten at
paras 111-126). Punitive damages should be resorted to only in exceptional
cases and with restraint (Whiten at para 69). The focus is on the
defendant’s misconduct, and not the plaintiff’s loss (Whiten at para
73). Furthermore, the overall award of damages should be rationally related to
the objectives of retribution, deterrence and denunciation, for which the
punitive damages are awarded (Whiten at paras 74 and 111).
[49]
Recent
case law has changed the perception that high punitive damage awards were
inappropriate. For example, in Pate v Galway-Cavendish (Township), 2011
ONCA 329 at paras 58-62 [Pate], the Court of Appeal ordered a new trial
on the issue of the punitive damage award because the trial judge expressed the
opinion that he would have ordered more punitive damages than $25,000, but was “bound
by the principles of proportionality”. In that case, the trial judge had found
that “the Defendant’s egregious conduct in making unfounded claims, both in the
criminal action and in its Statement of Defence respecting the employee’s
conduct, amounted to the intentional infliction of mental distress and social
and economic damage”. As this finding was not challenged on appeal (Pate at
para 61), the Court of Appeal held that:
62 Taking account of the trial judge’s findings
of significant misconduct on the part of the respondent that lasted over a
lengthy period and that had a devastating impact on the appellant’s life, as
well as the amounts awarded under the other heads of damages, it is not
immediately apparent why whatever higher amount of punitive damages the trial
judge was considering would not have been appropriate.
[50]
Upon
re-hearing the matter, Justice Gunsolus awarded $550,000 in punitive damages (Pate
v Galway-Cavendish (Township), 2011 ONSC 6620 at para 20). A similar
punitive damage award was also upheld by the Ontario Court of Appeal in McNeil
v Brewers Retail Inc., 2008 ONCA 405 at paras 63-65 [McNeil].
[51]
In
the case at bar, the adjudicator awarded punitive damages in the amount of
$100,000 “for the reprehensibly dishonest and bad faith manner” of the
dismissal of the respondent by the applicant.
[52]
The
adjudicator’s factual findings and overview of relevant case law on punitive
damages provide a firm basis for his decision to award punitive damages in the
amount of $100,000.
[53]
I
disagree with the applicant that the adjudicator erred by referring to Downham,
above, which also involved a wrongful dismissal of an employee. The adjudicator
simply noted that in Downham the Ontario Superior Court of Justice
awarded $50,000 for aggravated damages and also awarded punitive damages in the
amount of $100,000 for “numerous acts of misconduct and its continuance to
trial” (Downham at para 278). The applicant states that this case is not
parallel to the case at bar, but I fail to see how the adjudicator erred by
referring to it, as the Court in that case found that the employer had been
malicious, extreme and deserved full condemnation for its misconduct (Downham
at paras 272-277).
[54]
Analogously,
in the case at bar the adjudicator found that the applicant’s conduct
was reprehensible, dishonest, malicious, deliberate, despicable, deceitful and
in bad faith. The adjudicator properly looked at several dimensions of the
case, including the blameworthiness of the applicant’s conduct, the
vulnerability of the respondent - for example, that he was on medical leave
while the Executive Director continued his “vicious campaign of intimidation” -
and the deliberate harm directed specifically at the respondent.
[55]
I
note that the adjudicator referred to a case that was set aside by the British
Columbia Court of Appeal in Marchen v Dams Ford Lincoln Sales Ltd., 2010 BCCA 29.
However, I find that the Court of Appeal’s guidance in that case supports the
approach taken by the adjudicator:
66
Punitive damages are awarded to express approbation and to punish in
circumstances where the global amount of damages awarded, including aggravated
damages in appropriate circumstances, is insufficient (Whiten v. Pilot
Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 at para. 94; B.P.B. v.
M.M.B., 2009 BCCA 365 at para. 59). The trial judge was well aware of this,
but, in my view, he erred making such an award in this case.
67
In breach of contract cases, punitive damages flow out of egregious conduct of
a defendant at the time of the breach. In this case, when dismissing the claim
for moral damages, the judge held that the appellant’s “conduct at the time of
termination was not unfair, unfaithful, misleading or unduly insensitive”. He
also held that Mr. Marchen did not suffer undue distress. On these findings of
fact, punitive damages are not available.
[56]
In
contrast, in the present case, given that the adjudicator made numerous factual
findings regarding the reprehensible and bad faith conduct of the applicant,
the $100,000 award of punitive damages is reasonable. The quantum for
punitive damages awarded by the adjudicator is entirely justifiable and within
the range of acceptable outcomes.
[57]
Although
the applicant argued that damages recoverable from a first nations band for the
unjust dismissal of an employee were different than the damages recoverable
from employers generally, there is no case law to support this assertion.
[58]
For
these reasons, I would dismiss the application for judicial review, with costs
to the respondent.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
This application
for judicial review is dismissed with costs to the respondent.
“Danièle
Tremblay-Lamer”
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