[1]         To what extent is an employee entitled to work on a side business during work hours? That is the issue at the core of this wrongful dismissal claim.

[2]         The plaintiff was born April 15, 1964. After leaving high school, she obtained baking and cooking certificates. Prior to beginning work for the defendant, Destiny Software Productions Inc. (“Destiny”), the plaintiff worked at various jobs, including as a chocolatier and a restaurant worker. She had no prior experience in the technology industry space.

[3]         The plaintiff was close friends with Destiny’s CEO, Steve Vestergaard (“SV”). They had previously been in a romantic relationship, but she asserts that this was no longer the case by the time she started with Destiny. She says her actual partner was living in Ecuador for much of the material period. This explains why she was living at SV’s properties over the relevant time frame. She and SV also took trips together, and spent time with each other’s families. The plaintiff and SV routinely travelled to work together.

[4]         In 2007, the plaintiff started doing administrative work for Destiny, such as picking up office supplies, and providing purchasing and shipping support. She performed these tasks in return for the use of office space at Destiny for her crystal business. She says she was generally present at Destiny during normal office hours. However, she was not paid a salary, was not added to Destiny’s payroll, and had no job title. She agrees that she had the right to say no to work if she did not want to perform it.

[5]         To use her own word, she was then “hired” by Destiny on August 4, 2009, as their List Manager. There was a discussion regarding the decision to formally hire her between SV and Destiny’s Chief Financial Officer, Fred Vandenberg, which included Mr. Vandenberg raising the issue of whether it was appropriate for the plaintiff to be reporting directly to SV.

[6]         SV wrote on August 5, 2009 that “…Zashean started yesterday”. She agreed that she was no longer permitted to work on her crystal business in Destiny’s office after this date.

[7]         As her job title suggests, the plaintiff’s primary function was to oversee and manage Destiny’s list management service, called “PlayMPE”. PlayMPE is a software-based platform for marketing music within the music industry. PlayMPE users can upload content such as music, album art, and other artist information, select the intended recipients, and then share the content securely. Destiny’s customers are generally the senders who pay a fee based on the volume of the content delivered and number of recipients selected. Recipients are generally persons in the media industry who can broadcast content to a wider audience, such as radio stations and media reviewers. The success of PlayMPE is largely driven by the accuracy and currency of the network of recipients maintained in Destiny’s lists.

[8]         Destiny is wholly owned by Destiny Media Technologies (“Destiny Media”), a U.S. corporation publicly traded on the TSX Venture exchange.  

[9]         The plaintiff was employed by Destiny on a full-time basis for 40 hours/week. Destiny’s regular office hours were 8:30 am to 5:00 pm, Monday to Friday, although there was some flexibility to shift one’s hours with managerial approval. The plaintiff accepts that she did not have any right to work from home. On July 16, 2012, Destiny’s Operations Manager distributed an email to staff stating, “Just a reminder that our office hours are from 8:30 am to 5 pm. Please make sure you’re in by then and sign in to our staff page so that others know you are available.”

[10]      There was no written contract governing the plaintiff’s relationship with Destiny. However, the plaintiff agrees that in 2009 she likely saw Destiny’s Code of Conduct, which included the following provisions:

[11]      Mr. Vandenberg and another employee, Alen Vitasovic, both testified that they and others at Destiny generally assumed that the plaintiff and SV were a couple given their demeanour, the fact that they lived at the same properties, and that they often came into work together. Their relationship was clearly very close. In an email between SV and Mr. Vestergaard regarding a potential property purchase, SV states, “Zashean wears the pants – tried buying a dress but don’t like getting yelled at.” On August 30, 2006, the plaintiff registered with the provincial health insurer as SV’s common-law spouse. However, she asserts that this declaration was incorrect and, admittedly, improper.

[12]      Notwithstanding the plaintiff’s lack of prior technology experience, Destiny did not have any issue with the plaintiff’s performance until the period after January 1, 2017. Problems only began to develop after the plaintiff became involved in a commercial business purchased by SV. From that point, an array of problems started to develop.

[13]      In 2016, SV purchased a cafe and general store in Lions Bay, BC (“LB”) in partnership with Craig Doherty. Shortly thereafter, the plaintiff started performing work for LB. The plaintiff was not paid by LB for her work. Rather she claims that she did the work because she had extra time, and the work matched her skills given her prior experience in the food industry.

[14]      The plaintiff denies that she was an owner of LB. However, she, SV, and Mr. Doherty, often referred to her as an "owner" in various LB correspondence. In other LB correspondence, the plaintiff referred to herself as SV’s spouse. The plaintiff acknowledged in cross-examination that these representations were misleading. However, she says they were necessary in order to ensure that LB’s suppliers and contractors took her seriously.

[15]      The plaintiff’s work for LB included the following:

[16]      From January 2017 until her dismissal in June 2017, the plaintiff spent time on LB Work during Destiny Software's regular office hours. The plaintiff says that she did limited LB work in early 2017, but the work admittedly increased in April 2017. When asked how many hours per day she was doing LB Work during the January to June 2017 period, she responded, "Couldn't be more than an hour a day." Later in cross-examination, it was put to her that she appeared to be very busy in May 2017, and the plaintiff responded that "I maybe did 1 to 2 hours max in a whole day."

[17]      The plaintiff also admitted that in the January-June 2017 period she sent or received about 2,700 emails related to her LB Work, most of which were between April and June 2017. The plaintiff claimed that some of the emails were drafted in the evening and sent out the next day. However, this was not supported by the records, which showed the plaintiff responding promptly and in real time to various LB communications.

[18]      In terms of her signage work, on or about April 27, 2017, the plaintiff asked a Destiny employee, Ryan Gutierrez, to assist her in mocking up a proposed electronic logo for an LB sign. The plaintiff says that she asked Mr. Gutierrez to do this work outside of company hours. Mr. Vandenberg expressed a concern that, given her relationship with SV, Mr. Gutierrez would not have felt like he had the right to object to this request.

[19]      On May 15, 2017, SV wrote to Mr. Doherty about the plaintiff’s LB Work stating “She’s living and breathing inventory – it actually gets annoying as it is all she talks about, but she is spending a lot of time talking to people to get the right product mix…She’s also pushing for us to rip out the shelves and put in adjustable steel racks, which would allow us to have four rows instead of three.” On at least one occasion she stored goods intended for LB at Destiny’s premises. On May 16, 2017, SV wrote that “Zashean has been going through the POS [LB’s Point of Sale system] meticulously to correct mistakes.”

[20]      In terms of her attendance at conferences for LB, such as the May 25, 2017 Wines of British Columbia Convention at the Vancouver Convention Centre, the plaintiff suggests that she was generally able to attend these conferences outside of normal office hours.

[21]      The plaintiff controlled the main email address for LB. She arranged for the LB internet domain to be transferred to her control.

[22]      The plaintiff’s depth of involvement in LB’s operations is well illustrated by two May 16, 2017 emails where she (1) provides her comments on the proper price for a travel mug purchased wholesale for $7.50, and (2) questions whether the pricing for “powerade tropical mango” should be $1.41 or $2.59.

[23]      On June 2, 2017, she advised the onsite managers at LB that “You will have to report everything to me regarding liquor issues…”

[24]      On June 5, 2017, Mr. Doherty sent an email to an LB contractor stating, “I know [the plaintiff] is super busy (she’s looking after re-engineering all of our inventory…and she’s kicking arse) so she may not have had a chance to get to you.”

[25]      The plaintiff says that she felt she was entitled to do LB Work while employed by Destiny given that she regularly worked excess hours per week for Destiny. She also asserted that she often had to work late or from home for Destiny in order to manage its relationships with Australian and New Zealand contacts. As such, her position is that she simply applied excess Destiny work hours against her LB Work. However, she accepts that never sought managerial approval for this approach.

[26]      In early 2017, the Board of Directors was concerned about Destiny’s declining revenues, so decided that it needed fresh information regarding Destiny’s various business processes (the “Business Plan”). On April 28, 2017, Mr. Vandenberg passed on this request to the various department heads, including the plaintiff. The intention was for the Business Plan to be used in the preparation of Destiny’s 2018 budget.

[27]      The plaintiff understood that the request for a Business Plan came from the Board. She knew it was important, and she recognized that she needed to provide the requested information by the stated deadline of May 19, 2017. She failed to do so.

[28]      On May 1, 2017, the plaintiff asked for more information about the request. Mr. Vandenberg offered to send her a draft outline that had been prepared previously. The plaintiff asked him to send it again. On May 3, 2017, Mr. Vandenberg replied by sending the older draft document which had a table of contents and other basic information, red-lined with details and a series of questions to help guide the plaintiff through the preparation of the information required. The plaintiff still did not respond. She claims that she still did not understand what Mr. Vandenberg wanted, and that the one time she went to see Mr. Vandenberg to discuss her confusion, he was on holiday. However, (1) she agreed that all the questions were understandable, and (2) she (somewhat inconsistently) argued that she had already done this work as part of earlier evaluations in or about 2009 and 2015.

[29]      On May 15, 2017, Mr. Vandenberg received an email from the plaintiff’s subordinate, Joanna Vestergaard, indicating that Ms. Vestergaard had planned to help the plaintiff prepare the Business Plan, but that the plaintiff had indicated this was not necessary.

[30]      On May 24, 2017, the plaintiff sent a message to LB’s Mr. Doherty stating that "I am behind on a big deadline on a report so I need to get this done. The board of directors are asking this of me and the CFO.” She sent a similar message on May 26, 2017, stating, "...I have just been so busy. The [LB] store does take up a lot of my time. I also had a deadline to the CFO and the Board of directors and I missed that. [So] I need to focus on that right now."

[31]      On June 21, 2017, Mr. Vandenberg asked the plaintiff to send him everything she had completed on the Business Plan. The plaintiff accepts that she received this email, but says she did not read it. The plaintiff says that she had difficulty keeping current with her internal PlayMPE emails because she was also getting copied on all service tickets emails. She did not have her internal email open throughout the day, only checking it about once daily. She suggested that she was unaware of how to filter her email to prevent her inbox from being swamped with service tickets. However, during the course of her testimony, she admitted to applying a filter on the emails coming to her LB email address. Furthermore, Mr. Vandenberg said that the service tickets were already being copied to her email in 2015, yet she has been able to stay current on her Destiny emails prior to her starting her LB Work. Mr. Vitasovic also confirmed that the service ticket email protocol was changed earlier than 2017.

[32]      On June 22, 2017, Mr. Vandenberg asked Lillian Sun to follow up again with the plaintiff. Mr. Vandenberg was told that she had done nothing about the Business Plan. Mr. Vandenberg instructed Ms. Sun to follow up and ask for anything she had prepared to date. Nothing was forthcoming. 

[33]      During the January to June 2017 period, the plaintiff was regularly absent from work. She suffered a series of unfortunate events that spring, including a house fire and personal and family health problems. She started falling into a negative position in relation to her Destiny vacation time allocation. She rarely, if ever, sought advanced managerial approval for her time off.

[34]      Given his concerns about the plaintiff and SV’s spotty attendance, Mr. Vandenberg began monitoring when they were in the office. He never saw the plaintiff working late. His tally has the plaintiff taking 24 vacation days between March 1, 2017 and April 12, 2017 alone.

[35]      On Wednesday, June 14, 2017, Joanna Vestergaard wrote to SV stating, “I’m just wondering if everything is ok with Zashean? I have not heard from her directly since last Tuesday.”

[36]      The plaintiff claims that it would not be possible for others to know whether she was in the office, because she was working out of a boardroom near reception. She says she set up there because she had a hearing problem, a condition that causes her to speak too loudly when there is ambient noise. Mr. Vandenberg stated that other employees would still know if the plaintiff was there from their trips to reception, the elevator or the washroom.

[37]      Beyond these three major issues (too much work on external LB work, not enough work on Destiny’s Business Plan, and excessive and unapproved absences), the plaintiff was also falling behind on many routine tasks. She fell several months behind in signing off on her subordinate’s time. She was late in the provision of her vacation documentation. She failed to respond promptly to inquiries requesting receipts for her corporate credit card.

[38]      On June 22, 2017, the plaintiff was placed on administrative suspension by way of a letter hand-delivered in Destiny’s office by Mr. Vandenberg. The letter advised her to show up at Destiny’s lawyer’s office at 12 p.m. on Friday, June 23, 201,7 for an interview with an investigator, Paula Boddie. The letter declared that a failure to attend would be considered insubordinate conduct.

[39]      The plaintiff says she lost this letter, so she showed up with SV at the earlier time set for his interview. The plaintiff says she asked the investigator whether they could witness each other’s interviews or record them, and was told no. However, it was Ms. Boddie’s recollection that it was SV that asked about these points. The plaintiff waited while SV met with Ms. Boddie. After only about 15 minutes, the meeting with SV ended. SV had advised the investigator that he and the plaintiff would be tentatively willing to meet with her on Tuesday afternoon, but only with their legal counsel present.

[40]      The plaintiff testified that Ms. Boddie then told her that "it's over for today" and that "somebody would contact her" about rescheduling for another time. Ms. Boddie testified that she did not say this, as she did not even know at the time whether the meeting would be rescheduled. Given all that occurred over the weekend following this meeting, it is unnecessary for me to resolve this particular evidentiary conflict.

[41]      SV and the plaintiff immediately and jointly retained Oliver Hanson as their legal counsel. On June 23, 2017, Mr. Hanson wrote an aggressive letter to Destiny stating, inter alia:

[42]      Mr. Vandenberg testified that the Hanson Letter caused him a concern about the scene that might develop if the three dismissed employees showed up at Destiny’s offices on Monday morning. On Sunday, June 25, 2017, Destiny responded to Mr. Hanson stating, inter alia:

[43]      The Destiny Letter was only sent to the plaintiff by her counsel at 1:16 pm on Monday, June 26, 2017. The plaintiff testified that while it went to her LB email account, she did not read it. When probed as to why she did not see or read the letter, she stated she was with her mother all weekend. However, June 26, 2017, was a Monday. The plaintiff also suggested that she did not see the letter due to the volume of emails in her account. However, the plaintiff’s own record of the emails sent and received for LB shows only 4 emails on June 26, 2017.

[44]      As noted earlier, the plaintiff admitted that she was using the filtering function in her LB account. When asked why she did not also filter her Destiny emails, she said "I don't know." She later followed up with an explanation that she had only recently learned how to filter her emails, but then eventually conceded that “she probably could have” filtered her Destiny emails.  

[45]      The plaintiff did not engage further with Destiny thereafter. As such, Ms. Boddie submitted her Workplace Review Report on June 28, 2017. That same day, the plaintiff was terminated for cause. A letter to that effect was sent to her counsel Mr. Hanson and SV directly. The letter instructed her to return all company property in her possession or control, including computers. The plaintiff failed to return her work computer after her dismissal. She claims that she no longer knows where it is.

[46]       In its final argument, Destiny summarized its grounds for dismissal as follows:

[47]      Mr. Vitasovic took over the plaintiff’s role after she left. He is no longer with the company, but testified that:

[48]      At the time of her dismissal, the plaintiff testified that she was in receipt of the following compensation and benefits:

[49]      The Plan provided for the following to occur with any shares after termination:

[50]      The plaintiff had accrued 19,099 shares at the time of her dismissal. The plaintiff did not contact Destiny to provide directions in relation to the delivery of these shares after her dismissal. For their part, the defendants never delivered any certificate. It was only on March 14, 2023, that the defendants finally put these shares under the plaintiff’s control. Between her dismissal and the date the shares were placed under her control, the share price varied between $0.45 USD and $1.60 USD.

[51]      The plaintiff controlled other earlier acquired shares during the period after her dismissal, but there was no evidence that she disposed of any of these shares following her termination.

[52]      After being let go, the plaintiff continued her LB Work without compensation until about December 2017. The plaintiff was offered a position with LB as a manager at about $50,000 per year, but she turned that down as she did not want to do the drive to Lions Bay on a daily basis.

[53]      In terms of other efforts to find employment, the plaintiff only sent out one resume. She says she did in-person research at various establishments to confirm if they were a good fit. In particular, she needed to ensure that the ambient noise would be manageable in light of her alleged hearing problems. She remains unemployed.

[54]      In Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) the Court of Appeal stated:

[55]      In Bradshaw v. Stenner, 2010 BCSC 1398, aff'd 2012 BCCA 296, Madam Justice Dhillon stated:

[56]      I find that the plaintiff’s evidence had a number of reliability and credibility issues

[57]      The fact that the plaintiff often advised persons that she was married to SV, or was an owner of LB, shows a willingness to misrepresent facts when it serves her interests. Even more serious was the insurance misrepresentation (unless she was, in fact, SV’s common-law spouse, which would simply establish a different inconsistency with her trial evidence).

[58]      The plaintiff gave her evidence in a painfully circuitous manner. She would start in one place, then head off into an array of tangents, to the point where it was difficult to understand what she was trying to communicate. It was difficult to assess if this was reflective of a reliability problem or a credibility problem. The plaintiff claims to suffer from post-traumatic stress disorder which affects her thought processes. That said, she did not present any evidence of this diagnosis.

[59]      The plaintiff’s manner of testifying and conducting herself was quite confusing. I expect that her work colleagues also had difficulties dealing with the plaintiff’s communication challenges.

[60]      Indeed, Mr. Vandenberg freely admitted that part of the reason he did not go to see the plaintiff in person after she first expressed difficulty preparing the Business Plan was that she was very difficult to engage with. That willingness to make an admission against interest did help me reach the conclusion that Mr. Vandenberg was generally credible and reliable.

[61]      Between the plaintiff’s credibility problems and her struggle to tell a coherent story, I find that I must approach her evidence with caution.

[62]      The investigator, Ms. Boddie, appeared to be generally truthful, although she could not recall many of the details of the relevant day.

[63]      Mr. Vitasovic was the most credible and reliable of the witnesses. He is now independent of the parties, and had a very good recollection of the facts to which he testified.

[64]      The court may draw an unfavourable inference where, in the absence of an explanation, a party fails to provide evidence from a material witness, when it can be inferred that the witness would be willing to assist the party or is someone over whom the party has exclusive control: Chu v. China Southern Airlines Company Limited, 2023 BCSC 21 at paras. 51-52.

[65]      The plaintiff did not call SV to testify. No explanation was provided for this absence, although the plaintiff suggested vaguely that they had had a falling out. The defendants argue that the Court should assume that SV likely would have had material evidence, including: the nature of her relationship with SV; the scope of work and time spent on the LB business; the plaintiff’s restricted work for Destiny; and the interactions with Ms. Boddie on June 23, 2017.

[66]      I note that SV has his own wrongful dismissal trial upcoming. I expect that part of the explanation for the fact that he did not testify is that he did not want to risk an opportunity to frame potential inconsistencies, but this is speculation. That said, given the clear relevance of his potential testimony, I am prepared to draw an adverse inference against the plaintiff, but the weight of this inference is moderated by the following factors:

[67]      The defendants also argued that the Court should draw an adverse inference from the plaintiff’s failure to return her work computer. It was possible that the emails on this computer would have contained additional internal PlayMPE emails. However, I am not prepared to draw an adverse inference on this basis given that:

[68]      I find that the plaintiff only became an employee with Destiny on August 4, 2009. Even she described this as the date that she was “hired”. She was only added to Destiny’s payroll on this date. It was only then that she committed to working a full-time 40 hours per week, and started to receive a salary. Prior to that date, I find that the plaintiff was, at most, a contractor performing odd jobs in return for space within Destiny’s premises.

[69]      I summarized the general principles applicable to wrongful dismissal claims in Scorpio Security Inc. v. Jain, 2018 BCSC 978:

[70]      Employees have a duty to provide full-time service to their employer unless otherwise agreed. Working for outside business during business hours without approval can be a basis for dismissal: McMahon v. TCG International Inc., 2007 BCSC 1003 at para. 50-52.

[71]      In Wells v. Newfoundland and Labrador Nurses' Union, [1986] N.J. No. 370 (S.C.) an employee accepted a position with a commission while still working in his position. The court found that there was just cause for dismissal stating:

[72]      In Ross v. IBM Canada Limited, 2015 ABQB 563, a senior salesman was terminated by IBM on the basis that he was also working for his own personal company during IBM’s office hours. IBM had clear conduct guidelines of which one particular guideline expressly prohibited using company time to perform non-IBM work or using IBM assets for outside work. The court held that the plaintiff’s termination was justified. His role was a full-time job with a substantial salary and required that all of his work energy to be devoted to IBM’s interests. The court accepted evidence that the employee spent on average three to four hours per week conducting his private businesses on IBM time. This breakdown in the employment relationship was sufficient to warrant termination with cause, as Ross’s misconduct:

[73]      In Ross v. Readyfoods Ltd., 1981 CanLII 3493 (M.B.Q.B.), an employee became involved with an external business during his employment with the defendant. The court found that cause for dismissal was established because the employee spent significant time during the employer's regular business hours focused on his external business, to an extent that was incompatible with his duties to his employer. The court held as follows:

[74]      In King v. Kenair Apartments Ltd. (2001), 8 C.C.E.L. (3d) 289, 2001 CarswellOnt 1412 (Ont.S.C.J.), the court found no support for the employer's contention that the plaintiff's involvement with a second job detracted from his job performance as the building manager of an apartment complex. His role in relation to the second position was largely confined to administrative work done during his time off. Moreover, the fact that the plaintiff had a second job was known throughout by the employer.

[75]      In O.W.L. (Orphaned Wildlife) Rehabilitation Society v. Day, 2018 BCSC 1724, the court considered the importance of the employer providing warnings, and considering alternative measures, prior to dismissal:

[76]      In Hennessy v. Excell Railing Systems Ltd., 2005 BCSC 734 the plaintiff was given no warning that his job was in jeopardy, nor that he was failing to meet the level of job performance required of him. The court found that “[the plaintiff’s] performance was not so grossly deficient that the likelihood of discharge was so obvious that warnings and reasonable notice were not required. Although dissatisfaction with his work may well have led to the decision to terminate his employment, he was entitled to receive proper warnings that his job was in jeopardy and to have been given a reasonable opportunity thereafter to correct the deficiencies”: paras. 13-14.

[77]      This warning issue was also discussed in Ross. In Ross, the court found that a warning was not required given the nature of the plaintiff’s conduct. The court stated:

[78]      To similar effect, in Fonceca v. McDonnell Douglas Canada Ltd. (1983), 1 C.C.E.L. 51 at para. 16 (Ont. H.C.J.), the court held, "Where the incidents complained of are trivial, but annoying, then warnings are necessary before termination for cause is justified. However, where incidents, each in themselves, are serious, even though not sufficient to justify dismissal at the time, then a warning is not essential".

[79]      Damages for wrongful dismissal will be reduced if the court finds that the plaintiff did not adequately mitigate their wage loss by seeking alternate employment. The duty to mitigate was described as follows in Smith v. Aker Kvaerner Canada Inc., 2005 BCSC 117:

[80]      In Moore v. lnstow Enterprises Ltd., 2021 BCSC 930, this court considered what a reasonable job search should look like:

[81]      If there is a complete failure to seek work after dismissal, the court may deny a claim for damages in its entirety. ln Steinebach v. Clean Energy Compression Corp., 2016 BCCA 112, the Court of Appeal stated as follows:

[82]      In Cimpan v. Kolumbia Inn Daycare Society, 2006 BCSC 1828, the plaintiff did not take steps to secure new employment following her dismissal. The court found she failed to mitigate and the court dismissed her claim for wrongful dismissal. The court stated as follows with respect to her failure to mitigate:

[83]      In Besse v. Dr. A.S. Machner Inc., 2009 BCSC 1316, the court held that a plaintiff's refusal to consider alternate employment in Chilliwack when she resided in Hope was unreasonable. The court stated at para. 96 that "the desire to avoid a short commute is not a reasonable ground for a failure to pursue employment in mitigation of damages."

[84]      I find that there was just cause for the plaintiff’s dismissal. This determination is not based on any one factor. Rather the conclusion is driven by the cumulation of the following findings and factors:

[85]      Although it is more important to determine whether she failed to keep up with her responsibilities for Destiny than to determine why that was the case, my sense is that the plaintiff had a fixed capacity to work over the relevant period, so she chose the work that she found more enjoyable – being her volunteer work for LB. However, that was not her choice to make, particularly without Destiny’s express permission. While I am suspicious that she was encouraged to make that choice by SV, the plaintiff repeatedly refused to argue that she was “just following orders”. I am also suspicious that her decision not to advance this condonation defence may have been motivated by a desire to protect SV’s legal position in relation to his own upcoming wrongful dismissal trial. However, it is not necessary to come to arrive at findings on those suspicions in order to resolve the present matter, but these suspicions do “fit” the evidence.

[86]      In terms of setting the present matter within the case law, Ross is the most helpful precedent given the parallels between the two cases:

[87]      That said, there are certain factors that make the present case somewhat less clear-cut:

[88]      Nonetheless, I find that the comparable elements outweigh the distinguishing factors such that Ross is generally supportive of the conclusion I have reached on just cause. On the facts of this case, I find that there was just cause for dismissal, disregarding for the moment the question of the need for a warning.

[89]      In terms of the need for a warning, beyond the points already reviewed, I find that the following factors favour the need for some form of warning:

[90]      On the other side of the ledger however, I find that the plaintiff ought to have understood from the surrounding circumstances that her job was in jeopardy if her conduct continued, particularly as it relates to her failure to produce a Business Plan notwithstanding Destiny’s repeated efforts to extract same.

[91]      Were it appropriate to simply ignore the fact that Destiny did take steps to investigate, I may well have reached the conclusion that some additional form of warning should have been provided. However, the facts surrounding the investigation undercut the suggestion that a further warning was required.

[92]      When issued, the suspension was just that – a suspension. At the time the investigation began, it was just that – an investigation. Ms. Boddie was acting in good faith with an intention to discover the true facts. Her investigation would presumably have given Destiny an opportunity to outline its concerns, and the plaintiff an opportunity to explain her actions.

[93]      An employer’s decision to investigate is reasonably related to the provision of a warning. As the court stated in Geluch v. Rosedale Golf Assn., 2004 CanLII 14566 (ON SC):

[94]      Here, the plaintiff’s decision to tie her lot to SV’s decision not to cooperate with the investigation, coupled with her own counsel’s aggressive reaction to the proposed investigation as communicated in the Hanson Letter, effectively destroyed Destiny’s ability to use the investigation as a means of alerting the plaintiff to the precise nature of its concerns. Furthermore, Destiny did (reasonably) advise the plaintiff that a failure to cooperate with the investigation would be itself be treated as insubordination.

[95]      Admittedly, there were certain problems with the investigation. In particular, the investigation did not adequately segregate the plaintiff’s situation from that of SV. However, any such failings were overwhelmed by the following factors:

[96]      As such, I do not find that the warning/investigation issue requires a change in my conclusion that just cause existed in this case.

[97]      The defendants say that the appropriate notice period would have been 7.5-9 months, only a slight variation from the plaintiff’s proposal of 10-12 months.

[98]      In Ensign v. Price’s Alarm Systems (2009) Ltd., 2017 BCSC 2137, the court provides a helpful summary of the law in relation to the determination of the appropriate notice period. The court stated:

[99]      In this case:

[100]   The defendants relied on the guidance provided by the following decisions:

[101]   I find that in the circumstances of this case, a 9-month notice period would have been appropriate, disregarding the mitigation issue.

[102]   I also conclude that the defendants have established on a balance of probabilities that the plaintiff failed to properly mitigate her losses: Coutts v. Brian Jessel Autosports Inc., 2005 BCCA 224 at para. 23.

[103]   In terms of the appropriate adjustment to the award to account for this finding, I find that refusing to make any award would have been too harsh an outcome. Even with best efforts, the plaintiff’s future employment prospects would have been severely restricted in any event given her:

[104]   Furthermore, the plaintiff did at least perform some minimal “on the ground” research on suitable work environments, did send in one application. The one position she was offered would have demanded a great deal of driving on her part.

[105]   Although not a complete bar to recovery, I find that the plaintiff should have at least been able to find reasonable paid employment within a few months, although I expect that it would necessarily have been at a much lower salary than she had earned with Destiny. Rather than conclude that her failure to mitigate was so severe as to disentitle her to any award at all, I would have found that an appropriate remedy would have been to award approximately 4 months salary, or $25,000.

[106]   If I had found no cause for dismissal, I would not have made any award for punitive and aggravated damages. The defendants’ conduct did not merit either type of award.

[107]   There is one claim by the plaintiff that is not dependent on a finding of wrongful dismissal. The defendants failed to provide the plaintiff with her share certificate within the time frame required by the Plan. The defendants did not seriously argue otherwise. However, they argued that the plaintiff did not sustain any loss as a result of this failing. The defendants note that:

[108]   I agree with these points. Although there was a breach of contract, I am unable to find any pecuniary damage. That said, breach of contract is actionable without loss.

[109]   Nominal damages are awarded where a plaintiff’s legal right has been invaded, but no damages have been proven. In this case, nominal damages can be awarded as the plaintiff has established a breach of contract, which is actionable, but she has failed to establish a loss caused by the wrong: S.M. Waddams, The Law of Damages, 5th ed. (Toronto: Thomson Reuters, 2012), at c. 10.10-10.30.

[110]   There is substantial discretion in terms of the appropriate figure for nominal damages. However, in Chohan v. Cadsky, 2009 ABCA 334, leave to appeal to SCC ref’d, 33461 (22 April 2010), the Alberta Court of Appeal said that an award as high as $5,000 was not properly described as “nominal”: para. 61.

[111]   I would exercise my discretion to award $1,000 in nominal damages:  Cantera v. Leah Eller, [2007] O.J. No. 1899, aff’d 2008 ONCA 876 at para. 64; A.M. v. Matthews, 2012 ABQB 185 at para. 246; Georgian Windpower v. Stelco, 2012 ONSC 3759 at paras. 215, 273.  

[112]   The plaintiff’s claim is dismissed save for a $1,000 nominal damage award relating to the delayed delivery of the share certificates. Unless the parties seek to make further submissions, the defendants shall have their costs at Scale C as the substantially successful party.