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WRONGFUL DISMISSAL - Jurisdiction - Pleadings - Constructive dismissal

Tuesday, July 07, 2020 @ 5:49 AM  

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Application by Davison and his law firm to strike the plaintiff’s claim. The plaintiff was a lawyer who was previously employed at the defendant law firm. She alleged that during her employment she was sexually harassed by Davison to the point that the two partners of the firm created an objectively intolerable working environment entitling her to treat her employment contract with the law firm as repudiated. She sought damages for constructive dismissal and aggravated and punitive damages.

HELD: Application allowed in part. The plaintiff’s claim sufficiently set down an action for constructive dismissal. Neither the British Columbia Human Rights Tribunal nor the Workers’ Compensation Board had exclusive jurisdiction to consider the claim. The pleading was consistent with a cause of action in contract rather than a duty of care in tort for personal injury arising out of and in the course of employment. The paragraph in the pleading that claimed the plaintiff continued to suffer grave personal effects strayed too far into a claim for personal injuries arising from the conduct itself, and not the manner of dismissal, and was struck. To the extent the plaintiff might have a remedy in damages directly against Davison in relation to his conduct, it did not arise from her employment contract. The claim against Davison personally was dismissed. The pleadings and particulars were sufficient to plead a claim for aggravated damages related to the manner of the plaintiff’s dismissal. The plaintiff pled conduct in addition to the discriminatory conduct that could amount to a breach of the law firm’s duty of good faith and fair dealing to sustain an award of punitive damages. Certain paragraphs that were not material to the plaintiff’s losses or the need to punish or deter the law firm’s conduct were struck.

Deol v. Dreyer Davison LLP, [2020] B.C.J. No. 843, British Columbia Supreme Court, F.V. Marzari J., May 22, 2020. Digest No. TLD-July62020004