Dove v. Destiny Media Technologies Inc., 2023 BCSC 1032

Naz Mitha, K.C. successfully represented the defendant employer in a wrongful dismissal claim. The Court found that the plaintiff had been dismissed for cause for performing work for another company during working hours and therefore was not entitled to any notice period or damages. 

The plaintiff’s main role was to manage the defendant’s list management service, a platform for marketing music in the music industry. There was no written contract between the parties. 

While employed by the defendant on a full-time basis, the plaintiff carried out work for a store in Lions Bay owned by the defendant’s CEO at the time and another individual. The plaintiff’s duties at this store were far-reaching. Over a six-month period, she devoted to it at least three to four hours per week during regular business hours. In addition, the plaintiff failed to meet at least one important deadline with the defendant, relating to a business plan aimed at improving the defendant’s declining revenues. Furthermore, she was regularly absent from work during this period, and did not seek preapproval for her time off. Finally, the plaintiff also fell behind on routine tasks, such as signing off on her subordinate’s time. Relying on these and other factors, the Court concluded that the defendant had just cause for the plaintiff’s dismissal, even in the absence of a formal warning about her performance. 

In the alternative, if there had been no cause, the Court would have concluded that a reasonable notice period would have been nine months, based on the plaintiff’s eight years of service, her age (53) and her managerial role. However, due to the plaintiff’s failure to mitigate her damages by conducting a reasonable job search, an appropriate remedy would have been an award of four months’ salary, had there been no cause. 

Finally, the plaintiff advanced a separate claim in breach of contract on the basis that the defendant had not transferred to her certain shares she was entitled to under an employee share purchase plan. The plaintiff was successful on this point, but, because she suffered no damages as a result of the defendant’s breach, she was only awarded nominal damages in the amount of $1,000.