In Nunez-Shular v. Osoyoos Indian Band, 2025 BCSC 491, the plaintiff employee brought a claim for constructive dismissal against her employer. She had been the Tax Administrator for ten years when she went on a medical leave. When she returned, she found that her position had been replaced by another individual. The plaintiff came back on a graduated return to work, but the Court found that the employer never intended to return her to her old job. She was ultimately demoted to a tax officer position that had half the responsibilities. The plaintiff therefore resigned and claimed constructive dismissal. The Court applied the law of constructive dismissal and found that removing the plaintiff from her position was a fundamental change to her employment that she did not authorize and therefore she was wrongfully dismissed. In light of her age of 52 years, 20 years of service, and the specialized nature of her job, the plaintiff was awarded 24 months pay. She was also awarded $50,000 in aggravated damages as the Court found that the employer had breached its duty of good faith by being untruthful, misleading, and unduly insensitive and that this had resulted in serious psychological injuries to the plaintiff including anxiety and PTSD-like symptoms. This decision demonstrates the dangers of trying to replace a senior employee following a medical leave and shows the consequences that can arise when the employer is not above board in its dealings with employees.

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In Hoem v Macquarie Energy Canada Ltd., 2025 BCSC 446, the plaintiff employee was employed as a salesperson for 17 years before he was dismissed. The plaintiff was a very successful salesperson and earned several hundred thousand per year in commission above his base salary of $100,000 for the sale of equipment. The termination was initially done on a “without cause” basis and the plaintiff was paid 52 weeks base pay ($100,000) due to a severance clause in his agreement. However when the plaintiff started the lawsuit, the employer claimed it had discovered “after acquired cause” after reviewing the plaintiff’s emails – the two primary grounds relied upon were 1) the employee had lied during the employer’s investigation into litigation between the employee and an Airbnb guest at his vacation rental suite; and 2) the employee had ingested Cannabis gummies on one occasion during work hours.

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The Court found that although the plaintiff had been dishonest with the employer, the lie was not sufficiently connected with the workplace. The Airbnb guest had left the plaintiff a negative review and refused to remove it. The plaintiff sued the guest. The plaintiff had sent the guest a threatening text from his spouse’s phone which became a matter of public record when the guest tweeted the threatening text. When the employer learned of the lawsuit, it investigated, and during the investigation, the plaintiff told the employer that it was his spouse that had sent the text and not him. The employer argued there was a connection to the workplace because the guest was a professor at UBC, which was a client of the employer (although a dormant one). Ultimately the judge found that this was not a close enough connection to the workplace for the dishonesty to be a fundamental breach of the contract. Regarding the CBD gummies, the plaintiff provided evidence that he had taken them for health reasons and that they did not impair him in any way. The judge largely accepted this evidence so this was not grounds for cause.

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Based on the above, the plaintiff was found to be wrongfully dismissed. In assessing his damages, the Court found that his termination clause was not enforceable. Even though it provided for 52 weeks of base pay, the Court found that this could potentially violate minimum employment standards, which requires determining the 8-week average of all wages including commission when calculating termination pay. Therefore, since the minimum 8 weeks of the plaintiff’s commission + base salary could potentially be more than 52 weeks of base pay in the event of high sales volume before termination, the clause was found to be unenforceable. The Court awarded 19 months pay based on the common law and used the plaintiff’s average income in the 6 years before his termination, including commission, which was $528,268 per year! The plaintiff’s damages were therefore assessed at a whopping $836,424 plus another $106,329 in vacation pay. Finally, the plaintiff was awarded an additional $35,000 in aggravated damages due in part to the emotional distress he suffered because of the fact that the employer had made serious allegations against him in the response to the lawsuit, which it ultimately chose to abandon before trial or was unable to prove.