Wrongful dismissal damages, police officer's $1.5M ICBC claim denied and Civil Resolution Tribunal patently unreasonable

Legally Speaking with Michael Mulligan

This week on Legally Speaking with Michael Mulligan:

Mr. Eisler was born in 1932. He left school at age 14 and started work as a farmer and shepherd. By age 18 he was working in the Alberta oil fields. By 22 he was a field supervisor and by age 31 he had started his first company.

At age 79 Mr. Eisler was fired by the board of directors of a mining company he started and had worked at for twenty-four years.

Mr. Eisler sued for wrongful dismissal but, sadly, died a few months before the wrongful dismissal trial. After he died, the company claimed that they had cause to fire Mr. Eisler because of events many years earlier.

Mr. Eisler’s executor carried on with the case, succeeded, and had this decision upheld in the BC Court of Appeal. The company had no cause to fire Mr. Eisler.

As discussed on the show, while an employer is permitted to fire a non-union employee without cause, they are required to provide either notice or pay in lieu of notice. Typically, the amount of notice, or pay, would be calculated based on the provisions of the BC Employment Standards Act, or common law principles that would take into account the length and nature of the employment.

In Mr. Eisler’s case, however, he had a written agreement with respect to the terms of his employment that provided for payment if he was fired without cause. As a result, his estate received an award of $72,500 plus costs.

Also on the show, a Vancouver police officer sued for $1.5 million claiming that she was seriously injured in two car accidents.

The judge who heard the case did not believe the police officer. He examined photographs of the vehicles which showed very minor damage and took into account cross-examination of the police officer including on an application form for her job as a police officer where she described herself as “physically fit active with ability to work for long hours”.

In addition to finding the plaintiff police officer to not be a credible witness regarding the extent and longevity of her accident-related pain, the judge also disbelieved the plaintiff’s boyfriend. The judge described the boyfriend’s evidence as overly rehearsed and partisan and found that he plainly embellished the impact of the second accident. The boyfriend, as it turns out, had also been hired as a police officer in Vancouver.

The case demonstrates the importance of cross-examination and testing of claims. Having trials of issues like these with an independent judge is valuable not only for plaintiffs but for defendants, including ICBC.

Finally, on the show, a decision of the Civil Resolution Tribunal is found to be patently unreasonable on judicial review. The judge reviewing the decision concluded that the tribunal “exercised its discretion arbitrarily and on the basis of predominantly irrelevant and/or non-existent facts.”

The case involved a driver who was attempting to review ICBC’s decision that they were 100% responsible for an accident because this would result in their insurance rates increasing.

The Civil Resolution Tribunal adjudicator in the case misunderstand the nature of a civil claim being made by the other driver in the case and wrongly thought that this would resolve the issue of who was responsible for the accident.

Had the Civil Resolution Tribunal decision not been overturned the driver asking for a review would have been left with no way to challenge the ICBC decision concerning who was at fault.
Follow this link for a transcript of the show and links to the cases discussed.