Date Issued: April 14, 2023

File: SC-2022-004507

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Zoric v. Pollock-Cameron Investments Corporation, 2023 BCCRT 308

Between:

NIKOLETA ZORIC

Applicant

And:

POLLOCK-CAMERON INVESTMENTS CORPORATION

Respondent

REASONS FOR DECISION
Tribunal Member:	Megan Stewart

INTRODUCTION

1.      This is a dispute about alleged wrongful dismissal and delay in providing a record of employment (ROE).

2.      The applicant, Nikoleta Zoric, says the respondent, Pollock-Cameron Investments Corporation (PCIC), wrongfully dismissed them in April 2022 and failed to submit their ROE to Service Canada in a timely manner. They say the delay resulted in their being denied employment insurance benefits. Mrs. Zoric seeks $4,500 in damages for lost wages, inconvenience, and stress.

3.      PCIC denies Mrs. Zoric’s claims. It says it had cause to terminate Mrs. Zoric’s employment, but in any event, the parties agreed to a monetary settlement. PCIC also says it submitted Mrs. Zoric’s ROE to Service Canada through its payroll provider and that their ROE had been issued by June 2022. So, PCIC says it owes Mrs. Zoric nothing.

4.      Mrs. Zoric is self-represented. PCIC is represented by an employee or principal.

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.

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. In some respects, the parties in this dispute call into question each other’s credibility. Credibility of witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. 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.      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.

8.      Mrs. Zoric provided one piece of evidence that was not in English. CRT Rule 1.7 says all evidence a party relies on must be in English or translated to English. Mrs. Zoric did not provide a translation, so I have not considered that piece of evidence.

9.      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

10.   The issues in this dispute are:

a.    Is Mrs. Zoric entitled to damages for wrongful dismissal?

b.    Is Mrs. Zoric entitled to damages for lost wages, inconvenience, and stress in connection with any delay in PCIC submitting their ROE?

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, the applicant Mrs. Zoric must prove their claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties’ submissions and evidence but refer only to the evidence and argument I find relevant to provide context for my decision.

Wrongful dismissal

12.   It is undisputed that on April 4, 2022 Mrs. Zoric’s employment with PCIC was terminated. Mrs. Zoric alleges they were wrongfully dismissed while PCIC says it terminated their employment with cause. There is no employment contract in evidence. However, I find I do not need to decide whether Mrs. Zoric was wrongfully dismissed. This is because a signed April 6, 2022 letter shows the parties agreed PCIC would pay Mrs. Zoric a monetary sum equal to two weeks’ pay plus money owed for completed work in full and final settlement of their employment termination. Mrs. Zoric does not suggest PCIC failed to pay the agreed monetary sum or that they were coerced into signing the settlement agreement. So, based on the agreement, I find Mrs. Zoric is not entitled to further compensation for the alleged wrongful dismissal, and I dismiss this part of their claim.

13.   I note that despite Mrs. Zoric’s allegation, they do not claim damages for wrongful dismissal. Rather, they claim $4,500 for damages flowing from PCIC’s alleged delay in issuing their ROE, which I turn to below.

Record of employment

14.   Mrs. Zoric says PCIC’s breached its obligation to submit their ROE within the applicable timeframe under the Canada Employment Insurance Act’s (CEIA) Employment Insurance Regulations (the Regulations). The CRT has no authority to impose penalties for failure to provide an accurate ROE on time under the CEIA. However, though Mrs. Zoric does not use these words, I find they essentially argue PCIC’s delay in providing their ROE is a breach of its good faith and fair dealing obligation that caused them to suffer compensable damages, in the form of lost wages, inconvenience and stress.

15.   First, the alleged lost wages. Mrs. Zoric says they lost $11,000 in gross earnings based on 352 lost working hours between April 19, 2022 and their new job’s first pay date of June 15, 2022. I note Mrs. Zoric does not explain why their claim in this dispute is limited to $4,500, given the amount they say they lost. Even if Mrs. Zoric was prepared to waive any amount over $5,000 to bring their claim within the CRT’s small claims monetary limit, there is no evidence to support any amount of lost wages. The June 15, 2022 paycheck in evidence Mrs. Zoric says is from their new job is heavily redacted. It provides no indication of their hourly wage or salary and only reflects 86.67 hours worked. Also, Mrs. Zoric does not explain how a delay in submitting their ROE caused them to lose wages. In these circumstances, I find Mrs. Zoric’s claim for lost wages unproven and I dismiss it.

16.   Next, the claim for inconvenience. Mrs. Zoric submitted several of their emails to an employee, MM, at 100 Ways Jewelry, which I infer is one of PCIC’s business names. Mrs. Zoric says PCIC also uses the name Vancouver Gold, which PCIC does not dispute. So, I find PCIC does business as 100 Ways Jewelry and Vancouver Gold. The emails, between April 9 and July 4, 2022 included Mrs. Zoric’s repeated requests that their ROE be submitted.

17.   Mrs. Zoric also submitted a screenshot of a May 19, 2022 communication from Service Canada indicating it was not able to establish a claim for their employment insurance benefits because it had not received their ROE. In addition, they provided a screenshot of their Service Canada online account showing that Vancouver Gold issued their ROE on September 8, 2022. Mrs. Zoric also says they spoke with a Service Canada agent twice in April and July 2022, and during the second call were told PCIC was ignoring Service Canada.

18.   PCIC denies having been contacted by a Service Canada representative as alleged. It also submitted a screenshot of its payroll software page showing its ROE request for Mrs. Zoric was successful. The screenshot displayed a June 3, 2022 date.

19.   Based on this evidence, I find it is unclear when exactly PCIC submitted Mrs. Zoric’s ROE to Service Canada. Although MM advised Mrs. Zoric their ROE had been submitted on April 11, 2022, PCIC provided no documentary evidence to support this. So, I find it unlikely PCIC submitted the ROE before at least June 3, 2022, the date displayed in the screenshot of PCIC’s payroll software page. I note June 3, 2022 is nearly 2 months after Mrs. Zoric’s employment was terminated and well outside the Regulations’ 5-day timeframe. So, I find PCIC delayed submitting Mrs. Zoric’s ROE. But, does that give rise to compensable damages?

20.   Mrs. Zoric relies on Ellis v Artsmarketing Services Inc., 2017 CanLII 51563 (ON SCSM), an Ontario Small Claims Court case in which the court awarded a plaintiff $1,000 in inconvenience damages for an employer’s intentional 5-month delay in submitting the plaintiff’s ROE. The court’s decision to award inconvenience damages also took account of the employer’s ROE declaration that the plaintiff had quit, which led to the plaintiff being denied employment insurance benefits and resulted in proven financial hardship.

21.   I find there are facts that distinguish this dispute from the Ellis decision.

22.   First, there is no evidence to suggest PCIC deliberately delayed submitting Mrs. Zoric’s ROE to Service Canada. PCIC says it submitted Mrs. Zoric’s ROE through its payroll provider, and as noted above, provided evidence the ROE request was successful on June 3, 2022. Even if PCIC’s payroll provider delayed submission of Mrs. Zoric’s ROE, there is no evidence this was deliberate. In addition, the emails between MM and Mrs. Zoric indicated MM followed up on all but the last of Mrs. Zoric’s delay concerns, and they gave no indication PCIC was withholding Mrs. Zoric’s ROE on purpose.

23.   Second, there is no evidence Mrs. Zoric was particularly inconvenienced by the delay. Mrs. Zoric submitted a copy of a May 29, 2022 notice to end their tenancy in support of their position that they were unable to pay rent and so lost their housing because of the delayed ROE. However, the notice cited both late rent payment and significant interference with another tenant as reasons for their tenancy’s termination. Also, I note that of the notice’s 5 late rent payment dates, 4 pre-dated Mrs. Zoric’s employment’s termination. So, I find the notice does not prove Mrs. Zoric was inconvenienced because of the delayed ROE.

24.   Third, Mrs. Zoric says they lived below the poverty line during the delay. Even if I accept they were impoverished and so generally inconvenienced during the delay, I find there are no proven damages arising from it.

25.   Fourth, there is no evidence Service Canada denied Mrs. Zoric’s claim for employment insurance benefits due to a delayed ROE or for any other reason. I note the May 19, 2022 Service Canada communication indicated it could not establish a claim for Mrs. Zoric and advised them to submit their ROE as soon as possible. But that is not the same as a denial. I find if Mrs. Zoric had been denied employment insurance benefits in September 2022 as they claimed, they would have submitted concrete evidence of that.

26.   For these reasons, I find Mrs. Zoric’s claim for inconvenience damages unproven. I note that even if I had not been able to distinguish Ellis on the facts, it is not a decision that is binding on me.

27.   Finally, Mrs. Zoric’s claim for stress. As discussed in Eggberry v. Horn et al, 2018 BCCRT 224, a non-binding but persuasive decision, for a claim for stress or mental distress to be successful there must be medical evidence supporting the stress or mental distress. While I accept the situation may have been stressful for Mrs. Zoric, that alone is insufficient to prove damage or loss. As Mrs. Zoric did not submit any medical evidence, I find they are not entitled to any damages for stress.

28.   In conclusion, I find Mrs. Zoric has not proven PCIC’s delayed submission of their ROE resulted in lost wages, inconvenience, and stress. I dismiss this part of Mrs. Zoric’s claim.

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. However, neither party paid any CRT fees, nor did they claim any dispute-related expenses.

ORDER

30.   I dismiss Mrs. Zoric’s claim and this dispute.