Wrongful Dismissals & Changes In Ownership

Wrongful Dismissals After Changes In Ownership

The following is an interesting case of wrongful termination involving a college professor and a large distance-learning institute. The plaintiff was terminated by the school without adequate notice, as found by the judge. The case is complicated further by the professor’s former institution being acquired by a larger institution – shortly after the professor was dismissed. This new ownership denies all connection or responsibility to the plaintiff. Challenging large ownership groups and institutions can be intimidating, especially following the rejection of employment. In circumstances like these, you need a seasoned wrongful dismissal lawyer who can help so give us a call us today at 1-780-666-8161.

Subject

Name

Phone

Monjushko v. Century College Ltd.,

2008 BCSC 86
Date: 20080122
Docket: S053519
Registry: Vancouver
Between:
Dr. Vladimir Monjushko
Plaintiff
And
Century College Ltd. and
Century College 2005 Inc.
Defendants
And
Century College Ltd. and
Li Hsing (George) Chen
Third Parties
Before: The Honourable Madam Justice Loo
Reasons for Judgment
Counsel for the Plaintiff
Y. Gertsoyg
Counsel for the Defendant, Century College Ltd.
G. K. Martin
Counsel for the Defendant, Century College 2005 Inc.
P. Di Tomaso
Date and Place of Trial/Hearing:
6 September and
13 November 2007
Vancouver, B.C.
The Parties and Overview
[1] On this Rule 18A application, the plaintiff seeks from Century College Ltd. (“Century”) damages for wrongful dismissal, bad faith termination or Wallace damages, loss of pension benefits, and aggravated and punitive damages. The plaintiff also claims against Century College 2005 Inc. (“Century 2005”), on the basis that it purchased all of Century’s assets and therefore is a successor employer. Century claims that the plaintiff was hired on a fixed term contract and is therefore not entitled to reasonable notice. Century 2005 claims that the closing of the asset purchase agreement did not take place until after the plaintiff’s employment was terminated and therefore it was never the plaintiff’s employer. The two corporate defendants are not affiliates.
[2] The third party proceedings will only proceed in the event that Century 2005 is found liable.
[3] Athabasca University (“AU”) in Athabasca, Alberta, is an “open university” or “distance-education university”. Students do not need to attend AU’s campus, but may take AU courses at partner campuses. From 1996 to 2005, Century and AU had a partnership agreement that permitted Century to offer AU courses.
The Background
[4] Dr. Monjushko obtained his doctorate degree in mechanical engineering in 1973 from the Institute of Marine Engineers in Odessa, Ukraine. He worked for a number of years as an instructor and associate professor before he came to Canada in 1995.
[5] Century operated a post-secondary educational institution at 300-1788 West Broadway, Vancouver. It offered a number of courses, including arts, computer science, information technology, and AU courses.
[6] Dr. Li Hsing (George) Chen was at the material times a director of Century.
[7] By letter dated January 4, 1996, Century appointed Dr. Monjushko to teach the AU course COMP 200 for the 1996 spring semester. By letter dated December 19, 1996, Century confirmed that he would be instructing MATH 265 for the 1997 spring semester.
[8] By letter dated April 30, 1997, Century appointed Dr. Monjushko as instructor for the summer semester. The letter signed by both parties reads:
CENTURY COLLEGE
An International Centre for Advanced Learning
… April 30, 1997
Dear Mr. Monjushko,
It is my pleasure to inform you that The Board of Directors of Century College, has approved your appointment as Instructor for Century College for the Summer I (May – June) Semester, 1997. This appointment is contingent on an adequate enrolment.
Duties. Your duties will be to teach the Athabasca University course, MATH 215 Introduction to Statistics (first half) using the course materials prescribed by that university. You are asked to help students in your classes to complete the courses and write the Final Exams for those courses. The Final Exams will be set jointly by you and the designated Athabasca University course professor, and will be scheduled the week following the last day of classes.
Course texts and student study materials will be provided to instructors for use during the Semester; at the conclusion of the Semester, instructors are asked to return these materials to Century College.
Interim evaluations of students’ progress. Only those students whose overall progress in your courses is judged to be satisfactory or above average will be recommended to sit for the final exams. Such determinations will be based on progress evaluations, which you are asked to provide Century College during the semester.
At the conclusion of the courses, you will be asked to provide Century College (for transmittal to the Registrar of Athabasca University) each student’s final course grade.
Compensation. The compensation amount for each course is based on the current Rate Scale enclosed.
Conditions. Century College shall have the right to terminate this agreement if (1) the class is cancelled because of insufficient enrolment, (2) you fail to appear in class without notice, (3) the substance, method of teaching, testing, grading, or materials used are not consistent with Canadian university practice in general and Athabasca University standards in particular, as outlined in the current AU Calendar.
If this is your first appointment at Century College you are required to submit a copy of your university degrees and a transcript of your most recent degree programme.
Schedule of payment. Cheques will be available to University Instructors on their last teaching day each month. Amounts required by law (income tax, CPP, UI) will be withheld from the agreed upon amount for each pay period. Century College will pay the related costs, including holiday pay, if applicable.
Effective date. The appointment and conditions outlined in this letter are not effective until approved and signed by the President and the University Instructor.
“Chen” “V Monjushko” 05.05.97
Dr. Frank Lee, Ph.D. Mr. G. Chen Date Vladimir Monjushko Date
President & Founder Chair, Board of Directors University Instructor
Witness: “K. Shau” Witness: “K. Shau”
3rd Floor, 1788 West Broadway, Vancouver, B.C. V6J 1Y1 Canada
Tel: (604) 731-8869 Fax: (604) 731-8830 Email: century@centurycollege.com
[9] By letter dated January 2, 1998, Century appointed Dr. Monjushko for the 1998 spring semester to teach four AU courses. Except for the dates and the courses he was to teach, the appointment was almost identical to the letter appointment of April 30, 1997.
[10] From 1996 to 2004, there were a total of 40 appointment letters from Century to Dr. Monjushko. The form of appointment for each semester was almost identical to the letter of April 30, 1997, and even as late as January 2003 included the clause requiring the instructor to submit a copy of his or her university degrees and transcripts, if this was his or her first appointment.
[11] Dr. Monjushko taught a course load of between six to eight courses each semester. He was the sole instructor for mathematics, statistics, information systems, and computer science courses at Century. His work included recommending, developing, and implementing academic programs and curriculum planning, creating course outlines, developing course examinations, and assisting students with course work. At the end of each semester, he was evaluated for his performance and passed each evaluation with positive results.
[12] On August 20, 2003, Dr. Monjushko sent Century an invoice from AVM Computing for four courses he was teaching that semester. It is obvious that AVM Computing was a business name that Dr. Monjushko used because the invoice listed his home address.
[13] However, Canada Customs and Revenue Agency (“CCRA”) determined that Dr. Monjushko was not an independent contractor, but an employee under a contract of service. A letter dated October 14, 2004 from CCRA to Century reads, in part:
Canada Customs Agence des douanes
and Revenue Agency et du revenu du Canada
Vancouver Tax Services
Vancouver BC V6E 3H8
October 14, 2004
CENTURY COLLEGE LIMITED
100-1788 BROADWAY W
VANCOUVER BC V6J 1Y1
Dear Sir or Madam:
SUBJECT: EMPLOYMENT INSURANCE LEGISLATION

CANADA PENSION PLAN

We received a request for a ruling regarding the insurability and pensionability of Vladimir Monjushko’s employment for the period January 01, 2002 to December 31, 2003.
This request originates from the Trust Account Examination Section of our Agency.
We have determined that Vladimir Monjushko was an employee under a contract of service.
His employment in Canada with you during the period under review was insurable under paragraph 5 (1) (a) of the Employment Insurance Act and pensionable under paragraph 6 (1) (a) of the Canada Pension Plan.
It has been determined that he was an employee for the following reasons:
You, as an employer, exercised control over him and his work because:
– You controlled his hours of work.
– He had to perform the services personally.
– He had to take direction about the work to accomplish as well as the method to use to complete it.
– You determined the course content.
You provided any equipment necessary to complete the work.
The terms of his employment did not allow him to profit or expose him to a risk of loss.
The services he rendered to you were not performed as a self-employed worker.
Since Vladimir Monjushko’s employment was insurable and pensionable, you were required to deduct and remit premiums and contributions from all amounts paid to him.
As a result of our decision a Trust Accounts Examiner may call upon you shortly if the necessary deductions and remittances have not been made.
You have to provide Vladimir Monjushko with a T4 slip showing his earnings and the deductions which have been made from those earnings.
Both rulings are based on the information obtained and are applicable only to the period under review.
If you disagree with either or both rulings, you have 90 days from the date of this letter to appeal either or both by sending a copy of this letter along with your reasons for appealing to the Chief of Appeals, Canada Customs and Revenue Agency at 1166 Pender Street West, Vancouver, British Columbia V6E 3H8.

[14] The CCRA ruling was not appealed. Century issued a T4 Statement of Remuneration to Dr. Monjushko for each year that he worked.
[15] On June 18, 2004, Century issued a certificate to Dr. Monjushko recognizing his contributions and service:
Century College
10th Year of Academic Excellence
Dr. Vladimir Monjushko
Athabasca University
In recognition of your contribution and
service to Century College-Canada
“Chen”
Dr. George Chen, Chairman/President
June 18th, 2004
[16] Around the end of October 2004, Century learned that AU did not intend to renew their partnership agreement once the current agreement expired in June 2005. The partnership agreement was crucial for the viability of Century because approximately seventy percent of its students and revenue were generated by AU courses.
[17] However, Century did not inform Dr. Monjushko that its partnership agreement with AU was not going to be renewed or that his job was in jeopardy.
[18] In December 2004, Century appointed Dr. Monjushko “as an Instructor to teach eBusiness Information Technology Diploma program course(s) for the spring semester, which will commence on January 10, 2005 and will terminate on April 22, 2005.” The Instructor’s Appointment which was signed in December 2004 was similar to the other appointment letters and reads in part:
CENTURY COLLEGE
An International Centre for Advance Learning
INSTRUCTOR’S APPOINTMENT
… …
Dear Vladimir:
Century College is pleased to offer you an appointment as an Instructor to teach eBusiness Information Technology Diploma program course(s) for the Spring Semester, which will commence on January 10, 2005 and will terminate on April 22, 2005.
Duties:
Your duties will be to teach the following course(s):
EBIZ330: Database Management Systems
You are asked to help students in your class to complete the course. Your duties include lesson planning; preparation and delivery; preparation of students’ lecture notes and materials; lecturing; class tutorials; invigilating test/exam; setting and marking of assignments and test/re-test; exam/re-exam papers; and if necessary, as prescribed by the program director.
Course texts and student study materials will be provided to you for use during the semester, at the conclusion of the semester, you are asked to return these materials to Century College.
You are required to submit to the College a copy of the course outline for review before the course commences. In some cases, the College shall request you to submit a full set of teaching materials for record. You should teach according to the agreed course outline. If any changes on the course contents, prior consent should be obtained.
You are obliged to teach the course according to the day, time and number of hours as scheduled. You are required to be punctual to the classes, and to avoid changing the time of classes. Make-up class(es) should be arranged, if for any reason a scheduled class were missed.
You are asked to return all marked assignments to students on or before the last teaching session of the course. You should provide the final course mark sheet to the program director no later than one week after the final exam. You are required to participate in staff meetings occasionally as deemed appropriate in relation to the teaching of the course.
Compensation and Payment Schedule:
The compensation amount for each course is $2,600.00. Century College will pay you $173.3 (including vacation pay $6.93) per three-hour session for a maximum of 15 sessions. Cheques will be available to you on the last day of each month, providing that you have submitted an hourly summary to the program director one week before the pay day. Amounts required by law (income tax, CPP, UI) will be withheld from the agreed upon amount for each pay period.
Conditions:
Century College shall have the right to terminate this agreement if (1) the class is cancelled because of insufficient enrollment; or (2) you fail to appear in class without notice; or (3) you are guilty of gross misconduct or unprofessional behaviour or (4) the substance, method of teaching, testing, grading, or materials used are not consistent with good teaching practice in general.
Effective/Terminate Date:
The appointment and conditions outlined in this contract are not effective until approved and signed by both parties. Your appointment as an instructor will terminate upon the expiry date of the semester as defined. After the appointment is terminated, both you and Century College shall not obligate to accept or offer any further or subsequent appointments.
If you accept this offer and the terms and conditions listed above, please date and sign the enclosed copy and return to the College.
Sincerely yours,
“Chen” “V Monjushko”
Authorized Signature (Century College) Instructor’s Signature
“Dec. 06, 2004” “Dec. 10, 2004”
Date Date
# 100-1788 West Broadway, Vancouver, B.C. V6J 1Y1 Canada
Tel: 604-731-8869 Fax: 604-731-8830 Email: century@centurycollege.ca
www.centurycollege.ca
[19] On April 11, 2005, Century as the vendor, Century 2005, as the purchaser, and Dr. Chen, as the covenantor, entered into an Asset Purchase Agreement (the “Agreement”). The purchase price of $40,000 included the leasehold improvements, office furniture, inventory and supplies, including all educational program materials, and the goodwill, including the student lists and records, but excluded certain programs including the AU programs. The closing date was defined in the Agreement to mean “April 15, 2005, or such other date as the parties may agree upon in writing”. Clause 4.4 provided that:
… [T]he Vendor will ensure, at the Vendor’s cost, that all staff, to the extent required, fulfil their obligations in connection with the College up to the end of April, 2005, to ensure the successful completion of the current semester, including teaching, conducting final exams, providing final marks and invigilating examinations).
[20] Dr. Chen, in his examination for discovery, gave the following evidence through an interpreter:
Q When did the college shut down?
A End of April.
Q And no operations have been in existence since April?
A No. We sold the programme to other institutions.
Q To whom did you sell the programme?
A Century College (2005) Inc.

Q So the students were told that the college was going to be under new ownership around April the 10th, 2005?
A Yes.
Q And when were the employees of your college told that the college was being sold to new ownership?
A It’s also around about that time.
Q So the employees of the college were —
A Well, what I meant is the staff working in our offices.

Q And, to your knowledge, none of them have continued working under the new ownership?
A No.
Q None?
A No, none. Well, we suggested to the new ownership owners to use our old staff, but I’m very disappointed they didn’t use any of the staff.
Q So when was the college transferred to new ownership?
A End of April.
Q 2005?
A Yes.
Q What happened to the staff?
A What do you mean by “what happened to the staff”, to the employees?
Q Well, what happened to their jobs?
A No longer there, finished.
Q They all lost their jobs?
A Yes.
Q Did they receive severance pay from you?
A Well, everything goes according to the Labour Relations, according to contracts. Whatever the labour rules do, according to that.
Q So your employees received severance pay in according with labour rules?
A Yes.
Q All of your employees?
A Yeah, all of them, yes.

Q Very good. Now, was staff of the college notified that the Athabaska contract had not been renewed?
A Discontinued with Athabaska’s programme, I’m not clear if their principal, when they were informed or if they were informed, but I’m sure — but after the discontinuation, then we have to inform their employees according to the labour law.
Q So you think they were informed around April 10th, 2005?
A Yeah, about that.
[21] Dr. Monjushko states that in April 2005 he was informed, without warning, by the Dean of Century, Mr. Ken Chao, that his employment would be terminated. Dr. Monjushko provides no other evidence relating to the manner or circumstances of his dismissal, other than stating that he was given no reasons for his termination, no notice, and no severance. There is no evidence from Mr. Chao.
[22] Dr. Chen swore three affidavits. In his third affidavit (incorrectly noted as affidavit #2) sworn March 29, 2007, Dr. Chen denies that Dr. Monjushko was informed that his employment was terminated, and states that he was advised that “[a]fter the expiry of the Final Teaching Contract [the December 2004 appointment], Century would not be in a position to enter into another contract with the Plaintiff…”.
[23] It is clear from his examination for discovery on October 20, 2005 that Dr. Chen was not the person who informed Dr. Monjushko of anything relating to his employment. Dr. Chen does not state the source of his information and belief and I find much of his affidavit to be in the nature of argument rather than evidence. For example, he contends:
19. …
f. Century never retained the teaching services of the Plaintiff, or any other service of the Plaintiff, without entering into a contract with the Plaintiff, which set out the specific terms and conditions under which the Plaintiff would provide the service to Century, and which further set out a specific and limited period of time during which such service would be provided by the Plaintiff, and after the expiry of such period of time, the contract would expire.
20. …
a. If the Plaintiff was an employee of Century, the Plaintiff did not have “continued employment with Century College, from January 4,1996 until April 2005”. Century College’s academic year was divided into a spring semester, a summer semester, and a fall semester. During those periods between each semester, when Century College was not in session and when courses were not scheduled, the Plaintiff was not an employee of Century, and did not provide services to Century, and was not contracted by Century to provide teaching services, or any other services.


25. … I state that all of Century’s obligations to the Plaintiff, under the Final Teaching Contract, and under all of the Teaching Contracts, were fulfilled by Century. Century was under no obligation to provide the Plaintiff with “severance pay”, under the Final Teaching Contract, or under any of the Teaching Contracts.
26. … I state that if the Plaintiff’s [sic] was an employee of Century, such employment was at all times subject to the terms and conditions of each of the Teaching Contracts, which the Plaintiff and Century agreed to, and each Teaching Contract set out a defined and limited period of employment. Upon the expiry of each Teaching Contract, the employment of the Plaintiff was terminated.
[24] Century was Dr. Monjushko’s sole source of income. He worked for no other employer. He expected his employment “to continue indefinitely”.
[25] On April 28, 2005, Dr. Chen on behalf of Century, issued a Record of Employment (“ROE”) for Dr. Monjushko. In the box noted “FIRST DAY WORKED (OR FIRST DAY WORKED SINCE LAST ROE ISSUED”, Dr. Chen stated January 2, 1997. In the box noted “LAST DAY FOR WHICH PAID” he stated, April 22, 2005, and under “FINAL PAY PERIOD ENDING DATE”, he stated April 30, 2005.
[26] It was the only ROE that Century ever issued to Dr. Monjushko.
Was the employment a contract of a fixed term or indefinite term?
[27] Dr. Monjushko argues that the employment contract was for an indefinite term and that he is therefore entitled to reasonable notice of termination. Century argues that it was for a fixed term, from January 10, 2005 to April 22, 2005, and therefore no notice was required.
[28] Both parties rely on Ceccol v. Ontario Gymnastic Federation 2001 CanLII 8589 (ON CA), (2001), 55 O.R. (3d) 614, 204 D.L.R. (4th) 688 (C.A.).
[29] In that case, Ms. Ceccol and the defendant Federation entered into 15 annual contracts, each of which contained a specific final date. However, the trial judge concluded that Ms. Ceccol was not a fixed term employee and that she was entitled to reasonable notice. MacPherson J.A. stated at ¶ 13:
13 I agree with the trial judge’s conclusion. His observation about the importance of the parties’ reasonable expectations is a faithful application of one of the leading decisions of the Supreme Court of Canada in the contract law domain. In Consolidated Bathurst Export Ltd. v. Mutual Boiler & Machinery Insurance Co. (1979), 1979 CanLII 10 (SCC), [1980] 1 S.C.R. 888 (S.C.C.), at 901, Estey J. said:
[T]he normal rules of construction lead a court to search for an interpretation which, from the whole of the contract, would appear to promote or advance the true intent of the parties at the time of entry into the contract. Consequently, literal meaning should not be applied where to do so would bring about an unrealistic result or a result which would not be contemplated in the commercial atmosphere in which the insurance was contracted. Where words may bear two constructions, the more reasonable one, that which produces a fair result, must certainly be taken as the interpretation which would promote the intention of the parties.
[30] It could be argued that the principles in Ceccol only apply when there is an ambiguity, however, I do not think that is the case.
[31] In Ceccol, MacPherson J.A. stated at ¶ 26:
26 It seems to me that a court should be particularly vigilant when an employee works for several years under a series of allegedly fixed term contracts. Employers should not be able to evade the traditional protections of the ESA and the common law by resorting to the label of ‘fixed term contract’ when the underlying reality of the employment relationship is something quite different, namely, continuous service by the employee for many years coupled with verbal representations and conduct on the part of the employer that clearly signal an indefinite term relationship.
[32] In Marbry Distributors Ltd. v. Avrecan International Inc., 1999 BCCA 172 (CanLII), 1999 BCCA 172, 67 B.C.L.R. (3d) 102, Braidwood J.A. dealt with the “intermediate category” of employment relationships in between those which are clearly employment and those which are independent contracts. He stated at ¶ 38:
[38] In every case where a determination is necessary of whether a working relationship is one of employee/employer or independent contractor/strict agency, one should bear in mind the four-fold test as enunciated by Lord Wright in Montreal, supra, and Lord Denning’s “business integration” test in Stephenson, supra. However, as the Privy Council recognized in Montreal, supra, as society, and as a corollary employment and business relationships, become increasingly complex the courts must adapt. The so called “intermediate category” involves different aspects and therefore additional considerations come into play. After reviewing the case law I suggest that the following factors be considered. While I do not suggest that this list is exhaustive I find it helpful in determining where on the continuum a relationship of this nature resides. These factors are:
(i) Duration/Permanency of the Relationship. The longer the duration of the relationship or the more permanent it is militates in favour of a reasonable notice requirement. Amongst other evidence, the purchase and maintenance of inventory, which contains a permanency aspect, should be considered;
(ii) Degree of Reliance/Closeness of the Relationship. As these two interrelated sub-factors are increased the more likely it is that the relationship falls on the employer/employee side of the continuum. Included in this factor is whether the sale of the defendant’s products amounted to a significant percentage of the plaintiff’s revenues; and
(iii) Degree of Exclusivity. An exclusive relationship favours the master/servant classification.
None of these factors are by themselves conclusive and not every factor need be present in order to classify a relationship as one requiring notice to terminate.
[33] Clearly, none of the 40 or so appointments signed by Dr. Monjushko were employment contracts that he in any way negotiated. The appointments were standard forms that set out the courses he was to teach in the upcoming semester and the amount of his compensation. While the appointments were for a semester, there was no notice provision in the event that the appointment was terminated before the start or the end of a semester, or in the event that there was insufficient enrolment.
[34] To accept the argument of Century that each of the 40 appointments was a separate fixed contract that did not require any termination notice on its part flies in the face of the fact that the ROE states that he started work on January 2, 1996 (Dr. Monjushko says that he started work on January 4, 1996, but nothing turns on this) and his last day of work was April 22, 2005. Century never issued a Record of Employment at the end of each and every semester which is what it would have had to do had his employment terminated at the end of each semester. It likely never did so because Dr. Monjushko was considered by both parties to be continuously employed until April 22, 2005.
[35] Accordingly, I conclude that Dr. Monjushko was continuously employed by Century and entitled to reasonable notice of the termination of his employment.
What is the period of reasonable notice?
[36] In his Amended Statement of Claim, Dr. Monjushko claims that at the time of his dismissal he was entitled to 18 months of severance pay in lieu of notice in the amount of $85,458 and contributions to the Canada Pension Plan.
[37] Dr. Monjushko turned 65 years old on January 22, 2007 and is now receiving Canada Pension of $780 a month. He immigrated to Canada in 1995. After his termination in April 2005, he found a summer teaching position “for only one two-part course at Dorset College” which paid him $5,850 “over a period of three months, ending July 15, 2005”. He had been unable to find steady full-time employment. In 2006, he found part-time work and earned $6,765 from Dorset College, $3,692 from Arbutus College, and $4,992 from the University of Phoenix, or $15,449, plus employment insurance, for a total of $18,814.51. He continues to hold part-time employment with Dorset College and the University of Phoenix at the same levels of income he received in 2006. In 2005, the year of his termination, he earned a total of $33,006. In 2004 he earned $60,000 from Century. In 2003 he earned $43,000, and in 2002 he earned $59,000. His income was obviously dependant on the number of courses he taught.
[38] Century knew at the end of October 2004 that it would no longer have work for Dr. Monjushko after its partnership agreement which AU ended in June 2005, or even sooner, when the semester ended in April 2005. However, it did not make that fact known to Dr. Monjushko when it ought to have. That is a factor that in my view ought to lengthen the notice period.
[39] For the length of notice, counsel for Dr. Monjushko refers to Young v. Okanagan College Board 1984 CanLII 492 (BC SC), (1984), 5 C.C.E.L. 60 (B.C.S.C.), where 6 months was awarded when a one school-term contract was terminated before the term started; to Greenwood v. Chilliwack Christian School Society 1994 CanLII 696 (BC SC), (1994), 8 C.C.E.L. (2d) 122 (B.C.S.C.) where a teacher who was terminated after five years was awarded one and half year’s salary; and to Jalan v. Institute of Indigenous Government, 2005 BCSC 590 (CanLII), 2005 BCSC 590, where Mr. Justice Kelleher found that an appropriate notice period for a Dean of Academic Affairs who was terminated after three years, was 8 months, but increased it to 18 months based on a promise of continued job security previously provided to the plaintiff.
[40] I conclude that based on Dr. Monjushko’s age, his length of employment —over 9 years, the difficulty he has and will have finding alternate employment in his specialized field, and the failure of Century to inform him in October 2004 that his employment was in jeopardy, an appropriate award in this case is 15 months, less any sums earned by him during that period.
[41] Dr. Monjushko also claims bad faith damages based on Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701. However, those damages relate to the manner of dismissal, not the fact of the dismissal. As I indicated earlier, there is little or no evidence relating to the manner of Dr. Monjushko’s termination, and I make no award under this head of damages. I similarly make no award for aggravated or punitive damages. While Dr. Monjushko claims damages for loss of opportunity to increase his pension benefits, there was no evidence on this point and I make no award relating to any loss of benefits.
Can Century 2005 be held liable to Dr. Monjushko?
[42] This action was commenced against Century in June 2005. Century 2005 was added as a defendant in August 2006.
[43] Dr. Monjushko, through his counsel, contends in argument that he would be unable to realize on any judgment against Century because it is no longer in business. However, that argument may be premature. I am unable to find on the evidence before me at this time that Dr. Monjushko will be unable to recover his judgment against Century.
[44] Dr. Monjushko did not plead the Employment Standards Act, R.S.B.C. 1996, c. 113, although he was given liberty to plead s. 96. Section 96 of the Act provides inter alia:
Corporate officer’s liability for unpaid wages
96 (1) A person who was a director or officer of a corporation at the time wages of an employee of the corporation were earned or should have been paid is personally liable for up to 2 months’ unpaid wages for each employee.

(c) vacation pay that becomes payable after the director or officer ceases to hold office, or
(d) money that remains in an employee’s time bank after the director or officer ceases to hold office.

(3) This Act applies to the recovery of the unpaid wages from a person liable for them under subsection (1) or (2.1).
(4) In this section, “director or officer of a corporation” includes a director or officer of a corporation, firm, syndicate or association that the director treats as one employer under section 95.
[45] “Wages” is defined in s. 1 to mean:
“wages” includes

(c) money, including the amount of any liability under section 63, [severance pay], required to be paid by an employer to an employee under this Act,

[46] Section 63 sets out the employer’s liability for statutory severance:
Liability resulting from length of service
63 (1) After 3 consecutive months of employment, the employer becomes liable to pay an employee an amount equal to one week’s wages as compensation for length of service.
(2) The employer’s liability for compensation for length of service increases as follows:
(a) after 12 consecutive months of employment, to an amount equal to 2 weeks’ wages;
(b) after 3 consecutive years of employment, to an amount equal to 3 weeks’ wages plus one additional week’s wages for each additional year of employment, to a maximum of 8 weeks’ wages.
(3) The liability is deemed to be discharged if the employee
(a) is given written notice of termination as follows:
(i) one week’s notice after 3 consecutive months of employment;
(ii) 2 weeks’ notice after 12 consecutive months of employment;
(iii) 3 weeks’ notice after 3 consecutive years of employment, plus one additional week for each additional year of employment, to a maximum of 8 weeks’ notice;
(b) is given a combination of written notice under subsection (3) (a) and money equivalent to the amount the employer is liable to pay, or
(c) terminates the employment, retires from employment, or is dismissed for just cause.

[47] Dr. Chen, as a director of Century, can be found personally liable to Dr. Monjushko for eight weeks’ wages which is the maximum available under the Act. However, that is a remedy that Dr. Monjushko may have to seek through the Employment Standards Tribunal.
[48] More to the point: Dr. Monjushko alleges that Century was disposed of on April 15, 2005, prior to his termination on April 22, 2005. If that is the case, then under s. 97 Century 2005 is deemed to have been Dr. Monjushko’s employer when he was dismissed. This conclusion flows readily from Mitchell v. British Columbia (Director of Employment Standards) 1998 CanLII 3983 (BC SC), (1998), 62 B.C.L.R. (3d) 79 ¶ 38-39 and 41 (S.C.), where Vickers J. expressly agreed with the Tribunal’s conclusion that all that is needed for the application of s. 97 is for the employee to be employed by the vendor at the time of the disposition:
38 The Tribunal said at page 18 of its decision:
Unlike, section 53(1), section 97 explicitly states that upon a disposition of a business ‘the employment of an employee of the business is deemed, for the purposes of this Act, to be continuous and uninterrupted by the disposition.’ In other words, the disposition of a business does not terminate employment because employment is deemed to continue for the purposes of the Act. We agree with the original panel that the wording of section 97 creates ‘… the very sort of ongoing employment relationship referred to by the Court of Appeal in Verrin …’.
This does not mean that an employee is obliged to work for a purchaser. What it does mean is that for the purposes of ascertaining and enforcing an employee’s entitlements under the Act, employment is treated as if it were continuing with the purchaser.
39 I agree with the Tribunal.

41 I conclude that s. 97 must be interpreted to mean that if employees are employed by a vendor at the time a business is disposed of then, for the purpose of the Act, the employment of those employees is deemed to be continuous with the successor employer. In short, nothing has changed and all the benefits of these employees are continued with the new employer. Their employment is continuous and it cannot be said to have been terminated.
[Underlining added]
[49] Dr. Chen testified more than once in his examination for discovery that the “transfer” to the “new owner” occurred at the “end of April 2005”. However, Century 2005 served a Notice to Admit and Century admitted that the closing date was postponed from April 15, 2005 to June 21, 2005 to allow the vendor to transfer prepaid tuition to the purchaser as provided by the terms of the Agreement.
[50] I am unable to decide on this Rule 18A application the issue of when Century was disposed of, for the purpose of s. 97 of the Act. However, it seems to me that whether I accept Dr. Chen’s evidence that the change in ownership took place at the end of April 2005, or June 21, 2005, both dates are after Dr. Monjushko’s termination on April 22, 2005.
[51] In the event Dr. Monjushko finds that Century is unable to satisfy the judgment against it, he may reapply on the s. 97 issue, although I note that it has not been pled. Based on the covenants that Dr. Chen made under the Agreement, I am hopeful that the parties may otherwise agree.
Conclusion
[52] Dr. Monjushko is entitled to a reasonable notice equivalent of 15 months salary, less any sums earned by him during that time. The amount of salary is to be based on what he was earning in the 2005 spring semester. Dr. Monjushko is also entitled to court order interest and costs.

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