Date Issued: February 7, 2025

File: SC-2023-011248

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Lewis v. Hanington Painting Inc., 2025 BCCRT 182

Between:

IAIN LEWIS

Applicant

And:

HANINGTON PAINTING INC.

Respondent

REASONS FOR DECISION
Tribunal Member:	Jeffrey Drozdiak

INTRODUCTION

1.      This dispute is about employment termination.

2.      The applicant, Iain Lewis, worked for the respondent, Hanington Painting Inc. (Hanington), as a painter. Mr. Lewis says Hanington terminated his employment without cause. He claims $2,880 for “common law severance”.

3.      Hanington denies it owes Mr. Lewis anything. Hanington argues it is exempt from paying severance under the Employment Standards Act (ESA).

4.      Mr. Lewis represents himself. Hanington is represented by a manager.

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). CRTA section 2 says that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly.

6.      CRTA section 39 says the CRT has discretion to decide the hearing’s format, including by writing, telephone, videoconferencing, email, or a combination of these. I considered the potential benefits of an oral hearing. Here, there are no significant credibility issues, and I am properly able to assess and weigh the documentary evidence and submissions before me. So, the CRT’s mandate to provide proportional and speedy dispute resolution outweighs any potential benefit of an oral hearing. Overall, I find that an oral hearing is not necessary in the interests of justice, and I decided to hear this dispute through written submissions.

7.      CRTA section 42 says the CRT may accept as evidence information that it considers relevant, necessary, and appropriate, whether or not the information would be admissible in court.

8.      Where permitted by CRTA section 118, 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.

Employment Standards Jurisdiction

9.      The CRT does not have jurisdiction over an employee’s claim for statutory entitlements under the ESA. The ESA gives the Director of Employment Standards exclusive jurisdiction over such claims.

10.   I find Mr. Lewis’ claim for severance pay is a claim for common law damages for wrongful dismissal. So, I find the CRT has jurisdiction to consider his claim for damages under CRTA section 118.

ISSUE

11.   The issue in this dispute is whether Mr. Lewis is entitled to $2,880 in damages for the alleged wrongful dismissal.

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, Mr. Lewis, as the applicant, must prove his claims on a balance of probabilities (meaning “more likely than not”). Mr. Lewis had the opportunity to provide reply submissions but did not do so. I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.

The Employment

13.   On May 2, 2022, Mr. Lewis began working for Hanington as a painter. The hiring package provided by Mr. Lewis includes an unsigned employment agreement. Neither party disputes that this agreement reflects the terms of Mr. Lewis’ employment.

14.   In the agreement, Hanington agreed to hire Mr. Lewis as a painter and pay him $20 per hour. I find the agreement does not include any terms about ending the employment relationship.

15.   Mr. Lewis says on August 4, 2023, Hanington terminated his employment after a temporary layoff. Hanington does not dispute this. Mr. Lewis’ record of employment (ROE) shows his last day of work was July 20, 2023. The ROE says the employment relationship ended due to “shortage of work / end of contract or season”.

Is Mr. Lewis Entitled to Compensation for the Termination?

16.   Mr. Lewis argues he is entitled to severance because he was dismissed without cause. Hanington does not dispute that Mr. Lewis was dismissed without cause. Instead, it argues under ESA section “65(e)” it is not required to pay Mr. Lewis compensation.

17.   ESA section 63 outlines an employer’s liability to pay compensation if it terminates an employee without cause. The compensation is based on an employee’s length of service. ESA section 65 outlines several exceptions where this liability does not apply. ESA section 65(1)(e) says compensation is not owed where an employee is employed at one or more construction sites by an employer whose principal business is construction.

18.   Hanington says its principal business is construction and Mr. Lewis worked at one or more construction sites. So, it argues this means Mr. Lewis is not entitled to any compensation. I disagree. I find Mr. Lewis is not claiming compensation under the ESA. He is claiming compensation for damages under the common law.

19.   Under the common law, there is an implied term in an employment agreement that an employee is entitled to a reasonable amount of notice before losing their job. ESA section 65(1)(e) does not affect an employee’s entitlement to this reasonable notice (see Reotech Construction Ltd. v Snider, 2022 BCSC 317 at paragraph 53).

20.   Instead of providing a reasonable amount of notice, an employer normally pays the employee as if they worked the notice period. This is commonly referred to as severance. The amount of severance is based on the reasonable amount of notice an employer should have given an employee and is measured in weeks or months.

21.   The factors that affect the length of the notice period include the character of the employment, the length of service, the age of the employee, and the availability of similar employment (see Ansari v. B.C. Hydro & Power Auth., 1986 CanLII 1023 (BC SC) at paragraphs 15 to 16). Although fact specific, courts also look at past case law to help it decide this issue.

22.   To support his claim, Mr. Lewis refers to Saalfeld v. Absolute Software Corporation, 2009 BCCA 18. In that decision, the BC Court of Appeal found that BC jurisprudence suggested a range of two to three months of notice for a nine-month employee.

23.   Here, Mr. Lewis says he mitigated his damages, and he found similar employment by August 28, 2023. So, he argues he is entitled to three weeks of severance, which equals $2,880. Hanington does not dispute this calculation, so I accept this amount represents three weeks of Mr. Lewis’ wages.

24.   Mr. Lewis worked for 15 months as a painter. He was also able to find similar employment within three weeks of the layoff. Applying the factors in Ansari, I find three weeks is reasonable under the circumstances. I find this amount is also consistent with the general rule of thumb that a starting point for notice is one month for every year of service (see Linsdell v. Squamish W K Enterprises Inc., 2003 BCSC 188 at paragraph 5).

25.   In summary, I find Mr. Lewis is entitled to three weeks’ pay in lieu of reasonable notice, and I order Hanington to pay Mr. Lewis $2,880.

INTEREST AND CRT FEES

26.   The Court Order Interest Act applies to the CRT. In his Dispute Notice, Mr. Lewis explicitly chose not to claim interest, understanding that he could not claim this amount later. So, I order none.

27.   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. Mr. Lewis was successful, so I find he is entitled to reimbursement of $150 in CRT fees. Mr. Lewis did not claim dispute-related expenses, so I order none. As Hanington was unsuccessful, I dismiss its claim for CRT fees.

ORDERS

28.   Within 15 days of the date of this decision, I order Hanington to pay Mr. Lewis $3,030, which includes $2,880 in damages and $150 for CRT fees.

29.   Mr. Lewis is entitled to post-judgment interest, as applicable.

30.   I dismiss Hanington’s claim for CRT fees.

31.   This is a validated decision and order. 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. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.