A former delivery driver for Edgar Campbell Inc. who sought severance pay, even though he was a temporary contract employee and was apparently never actually terminated, has had his claim denied by the Supreme Court of British Columbia.
The driver’s unique case presented several legal complexities, leading the court to convert his petition into an action rather than providing the declaration he sought.
The crux of the dispute revolved around whether B.T., who represented himself in court, was entitled to severance pay after working for 44 months with the company. B.T. argued that he was an employee and thus entitled to severance under the Employment Standards Act (ESA). He claimed his employment was effectively terminated on April 29, 2021, without notice or a Record of Employment (ROE).
B.T.’s relationship with Campbell Edgar Inc. began on Aug. 14, 2017, when he started driving five-ton trucks to deliver Mercedes-Benz parts. Although he signed an agreement indicating his status as a temporary contract employee, he worked full-time hours and believed his employment was continuous until the contract with Mercedes-Benz ended.
The court’s judgment highlighted a key issue: B.T. never explicitly alleged that his employment had been terminated, creating ambiguity around his claim for severance. Justice Armstrong noted, “Interestingly, the petitioner does not allege in his petition that his employment with the respondents was ever terminated.”
Workplace injury
B.T.’s employment situation became more complicated when he was injured in a workplace event on March 26, 2021. Despite notifying WorkSafeBC about his injury, he failed to inform his employer until March 30, 2021.
The company then struggled to find replacement drivers and eventually learned that their contract with Mercedes-Benz was under review, effectively ending in late April 2021.
Despite this, the company did not terminate B.T.’s employment, recognizing his status as a disabled employee. Instead, they attempted to ascertain his ability to work through multiple efforts to contact him, which went unanswered. B.T.’s subsequent requests for an ROE, starting in May 2021, were met with responses from the company seeking information about his capacity to work, which he did not provide.
ROE issued without employer’s input
The respondents, represented by the company’s president, argued that B.T. was never terminated and that he had ample opportunities to resume work. They were surprised to learn that Service Canada had issued B.T. an ROE without their input, leading them to believe he had resigned.
Justice Armstrong pointed out that several legal and factual issues prevented a straightforward resolution of B.T.’s claim. These included the proper legal procedures for claiming severance under the ESA, the controversy over whether B.T.’s employment was terminated, and the applicability of the Limitation Act given the timing of the proceedings.
“Claims under the ESA must be commenced by application to the Director of Employment Standards,” stated Justice Armstrong. “There is no authority to commence this proceeding either by petition or notice of civil claim in the Supreme Court of British Columbia for relief under the ESA.”
Company dissolved
Moreover, the dissolution of Campbell Edgar Inc. added another layer of complexity. While the company could still be sued within two years of its dissolution under the Business Corporations Act, the exact date of dissolution was not clarified in the evidence presented.
The court also addressed the potential for litigation estoppel, noting that B.T.’s plan to use the declaration for further claims against associated employers, such as Ryder or Mercedes-Benz, would be inappropriate and possibly barred by previous litigation principles. (B.T. worked for Ryder Truck Rentals, a client of Campbell Edgar, but even that part of the case was a bit confusing.)
In conclusion, Justice Armstrong exercised discretion to convert the proceeding from a petition to an action, allowing for a more comprehensive examination of the facts and legal issues involved. He emphasized the need for pleadings and discovery to fully resolve the disputes between the parties.
“It would be an abuse of the courts process to attempt to achieve the result expected by the petitioner. Converting this petition to an action may give him the opportunity to expand of the claims he might wish to make against other parties. At present the petition should not be resolved on the state of the evidence and the pleadings,” said Justice Armstrong.
For more information, see Trakalo v Campbell Edgar Inc. (BC0489957), 2024 BCSC 1316 (CanLII).
