Date Issued: June 2, 2022

File: SC-2021-005870

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Fitzpatrick v. IDM Youth Services Inc., 2022 BCCRT 645

Between:

PETER FITZPATRICK

Applicant

And:

IDM YOUTH SERVICES INC.

Respondent

REASONS FOR DECISION
Tribunal Member:	Nav Shukla

INTRODUCTION

1.      This is a small claims dispute flowing from an employment relationship. The applicant, Peter Fitzpatrick, was employed by the respondent, IDM Youth Services Inc. (IDM), between December 2019 and March 2020.

2.      Mr. Fitzpatrick alleges he resigned from his employment on March 14, 2020 and is entitled to $2,653.85 under his employment agreement since IDM waived his 2-week notice period. In his submissions, Mr. Fitzpatrick also claims $2,000 for alleged damage to his reputation and psychological distress caused by IDM.

3.      IDM alleges, in essence, that Mr. Fitzpatrick is not entitled to any damages because he repudiated his employment agreement before he resigned by refusing to accept IDM’s decision to extend his probationary period.

4.      Mr. Fitzpatrick is self-represented. IDM is represented by its owner.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

6.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

7.      Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction. A dispute that involves some issues that are outside the CRT’s jurisdiction may be amended to remove those issues.

8.      Mr. Fitzpatrick claims $2,000 for alleged damage caused by IDM to his reputation and psychological distress. A claim for damage to reputation is a claim for either slander or libel. Slander is an oral communication that is defamatory and libel is a defamatory written communication. A communication will be defamatory if the published words negatively affect the applicant’s reputation in a reasonable person’s eyes (see Grant v. Torstar Corp., 2009 SCC 61 at paragraph 28). CRTA section 119(a) says that the CRT does not have jurisdiction to resolve claims of slander or libel. So, I find that I do not have jurisdiction to resolve Mr. Fitzpatrick’s claim that IDM damaged his reputation and refuse to resolve it based on CRTA section 10. I discuss Mr. Fitzpatrick’s psychological distress claim below.

9.      Further, the CRT does not have jurisdiction over an employee’s claim for statutory entitlements under the Employment Standards Act as the Employment Standards Branch has exclusive jurisdiction over these issues. I find that Mr. Fitzpatrick’s claims do not concern his statutory entitlements, but rather his entitlement to damages based on his contractual relationship with IDM. I am satisfied that the CRT has the jurisdiction to address these damages claims.

10.   Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

11.   Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

ISSUES

12.   The issues in this dispute are:

a.    Did Mr. Fitzpatrick repudiate his employment agreement?

b.    If not, what damages, if any, is Mr. Fitzpatrick entitled to?

EVIDENCE AND ANALYSIS

13.   In a civil proceeding like this one, the applicant, Mr. Fitzpatrick, must prove his claims on a balance of probabilities. I have read all the parties’ submitted evidence and argument but only refer to what I find relevant to provide context for my decision.

Did Mr. Fitzpatrick repudiate his employment agreement?

14.   As the party making the allegation, I find that IDM bears the burden to prove that Mr. Fitzpatrick repudiated his employment agreement.

15.   According to his January 1, 2020 employment agreement, Mr. Fitzpatrick had a 12-week probationary period during which IDM could end his employment without notice or cause. It is undisputed that Mr. Fitzpatrick’s initial probationary period was set to expire on March 28, 2020. Under section 5.3 of the employment agreement, IDM could extend the probationary period so long as it gave notice to Mr. Fitzpatrick during the initial 12-week period that it was doing so.

16.   On March 11, 2020, IDM gave notice to Mr. Fitzpatrick and others that their probationary periods were being extended to June 1, 2020. It is undisputed that IDM was entitled to issue this extension under section 5.3 of the employment agreement. The same day, Mr. Fitzpatrick advised KCS, IDM’s Director of Operations, that he was not agreeable to the extension. On March 13, 2020, Mr. Fitzpatrick again told KCS that he did not agree to the extension and that if IDM did not rescind its decision to extend the probationary period, March 28, 2020 would be his last day of work.

17.   When a party indicates they no longer intend to be bound by a contract’s terms, it is called repudiation. The other party can accept the repudiation, which terminates the contract or continue to treat the contract as still in force (see Kuo v. Kuo, 2017 BCCA 245). Here, I find that Mr. Fitzpatrick repudiated the employment contract on March 11 and again on March 13 when he told IDM he did not agree to the probationary period’s extension.

18.   Next, I must consider whether IDM accepted the repudiation which would have terminated the employment agreement and the parties’ respective rights and obligations under it.

19.   It is clear from the evidence that IDM intended to terminate Mr. Fitzpatrick’s employment on March 16, 2020. On March 15, 2020, KCS prepared a termination letter that IDM intended to deliver to Mr. Fitzpatrick the following day. However, before IDM could send him the letter, Mr. Fitzpatrick gave IDM 2 weeks’ notice that he was resigning. On March 16, 2020, KCS advised Mr. Fitzpatrick that IDM had received his resignation and was accepting it effective immediately.

20.   Between April 3 and April 4, 2020, Mr. Fitzpatrick exchanged emails with IDM’s owner about his payment for the 2-week notice that IDM had allegedly waived. IDM’s owner, Todd McDonald, told Mr. Fitzpatrick that IDM would not be paying him because they had reasonable grounds to terminate his employment since he would not agree to the probationary period’s extension. Mr. Fitzpatrick says this is the first time he was made aware of IDM’s position that he had breached his employment agreement.

21.   There is no evidence before me that IDM ever informed Mr. Fitzpatrick that it had accepted his repudiation. In fact, in its submissions, IDM says that it is true that it accepted Mr. Fitzpatrick’s resignation in order to have an amicable separation between the parties and “save face” for Mr. Fitzpatrick.

22.   So, I find that IDM did not accept Mr. Fitzpatrick’s repudiation and the employment agreement remained in effect at the time of Mr. Fitzpatrick’s resignation.

Is Mr. Fitzpatrick entitled to any damages?

23.   Under section 7.1 of his employment agreement, Mr. Fitzpatrick was required to give not less than 2 weeks’ notice in writing to IDM if he chose to resign. Section 7.2 says that IDM could choose to waive the notice period and pay Mr. Fitzpatrick his regular salary for that period. Mr. Fitzpatrick says that by accepting his resignation effective immediately on March 16, 2020, IDM waived the notice period, and he is entitled to payment for that period.

24.   The evidence includes Mr. Fitzpatrick’s March 14, 2020 resignation letter. Though the letter is dated March 14, 2020, there is no evidence that it was delivered to IDM on that day. The only evidence before me is Mr. Fitzpatrick’s March 16, 2020 email to KCS saying that he has resigned and given his 2 weeks’ notice. In its submissions, IDM says that Mr. Fitzpatrick submitted his resignation during the weekend, hours shy of being terminated. So, based on IDM’s submissions and the March 16, 2020 email, I find that Mr. Fitzpatrick gave IDM 2 weeks’ notice that he was resigning on March 15, 2020, in accordance with the employment agreement’s section 7.1. I also find that IDM waived the notice period on March 16, 2020 by accepting Mr. Fitzpatrick’s resignation effective immediately. So, I find that IDM is required to pay Mr. Fitzpatrick 2 weeks’ pay under section 7.2 of the employment agreement.

25.   As mentioned, Mr. Fitzpatrick claims $2,653.85 for the 2 weeks’ pay. The only evidence I have of Mr. Fitzpatrick’s compensation is the employment agreement which says his monthly salary was $5,750 and that he would be paid twice monthly. Neither party has made submissions regarding what the 2 weeks’ pay should be. However, based on the monthly salary set out in the employment agreement, I find that $2,653.85 is an appropriate amount for the claimed 2 weeks’ pay.

26.   So, I find that IDM owes Mr. Fitzpatrick $2,653.85 in damages for the 2 weeks’ pay he is entitled to under section 7.2 of his employment agreement.

27.   As set out above, I have already refused to resolve Mr. Fitzpatrick’s claim for damage to his reputation as it is outside the CRT’s jurisdiction. For the following reasons, I also dismiss Mr. Fitzpatrick’s psychological distress claim. Though Mr. Fitzpatrick may have found the circumstances surrounding the end of his employment with IDM stressful, Mr. Fitzpatrick has not provided any medical or other evidence to support a claim for psychological distress, so I find he is not entitled to such an award.

28.   The Court Order Interest Act applies to the CRT. Mr. Fitzpatrick is entitled to pre-judgment interest on the $2,653.85 from March 31, 2020, which I find to be the date IDM should have paid him by, to the date of this decision. This equals $35.91.

29.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I find Mr. Fitzpatrick is entitled to reimbursement of $150 in CRT fees. Mr. Fitzpatrick did not claim any dispute-related expenses. As IDM was unsuccessful, I dismiss its claim for reimbursement of paid CRT fees.

ORDERS

30.   Within 21 days of the date of this decision, I order IDM to pay Mr. Fitzpatrick a total of $2,839.76, broken down as follows:

a.    $2,653.85 in damages,

b.    $35.91 in pre-judgment interest under the Court Order Interest Act, and

c.    $150 in CRT fees.

31.   Mr. Fitzpatrick is entitled to post-judgment interest, as applicable.

32.   I refuse to resolve Mr. Fitzpatrick’s claim for damage to reputation under CRTA section 10(1). Further, Mr. Fitzpatrick’s psychological distress claim is dismissed.

33.   Under section 48 of the CRTA, the CRT will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the CRT’s final decision.

 

34.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. A CRT order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.