The B.C. Supreme Court has thrown out a wrongful dismissal claim from a former executive against the City of Nanaimo.
Victor Mema, who was the cityB次元官网网址檚 chief financial officer from 2016-18, filed a notice of civil claim in B.C. Supreme Court in May 2021, alleging wrongful dismissal, breach of contract, breach of good faith, and intentional infliction of mental suffering. The city filed a response in June 2022. In a ruling on Wednesday, July 12, Justice Ian Caldwell ruled that MemaB次元官网网址檚 claim was filed outside a limitation period.
B次元官网网址淚 find that the six-month limitation period provided by [Section 735] of the Local Government Act applies to the unlawful termination claim B次元官网网址� that is the allegations of non-compliance with the cityB次元官网网址檚 statutory procedural requirements for termination B次元官网网址� as well as the wrongful dismissal claim, which is inextricably connected to the termination issue. I dismiss those portions of the plaintiffB次元官网网址檚 claim in their entirety,B次元官网网址� Caldwell said in his reasons for judgment.
The city had alleged that questionable purchases were charged to MemaB次元官网网址檚 work credit card while he was director of financial services in 2015, through to his time as CFO, even though an agreement prohibited personal expenses, according to CaldwellB次元官网网址檚 judgment. By the latter part of 2017, expenses were estimated at about $14,000, including close to $1,300 charged in Cancun while he was on holiday, the judgment noted.
A cheque to pay back some of the expenses signed in December 2016 bounced, according to the judgment, and even after a repayment plan was agreed upon in February 2017, Mema B次元官网网址渃ontinued to incur further personal charges on the [card].B次元官网网址�
In his court filing, Mema claimed the B次元官网网址渃onduct of the city was a material and fundamental breach of its obligation of good faith and fair dealing,B次元官网网址� something that caused him distress. He sought damages for breach of contract and B次元官网网址渟pecial damages for out-of-pocket expenses incurred to mitigate his losses and obtain alternative, comparable employment.B次元官网网址�
Mema claims the agreement did not B次元官网网址渁bsolutely preclude use of the [card] for personal expenses. In addition, B次元官网网址淸cards] were used for personal purchases in practice and that there was no policy or practice requiring personal purchase charges to be immediately repaid to the city.B次元官网网址� He also stated city staff didnB次元官网网址檛 inquire about his personal charges, except for repayment. He also claims he was not informed that credit card usage for personal expenses was inappropriate or inconsistent with procedure he thought B次元官网网址渨as in play.B次元官网网址�
According to the judge, lawyers can still file an application seeking further direction or to have sections of the claim struck, if it is their prerogative, but he didnB次元官网网址檛 think it was necessary given the circumstances.
Further, he noted that the limitation period doesnB次元官网网址檛 apply to the allegations regarding breach of good faith and intentional infliction of mental suffering, B次元官网网址渁s the operative legislation clearly does not provide any lawful means or process by which the city could carry out such acts lawfully.B次元官网网址� Whether the allegations are true and if any damages should be awarded is something a trial would decide, the judge said.
The hearing, which took place April 18, and this weekB次元官网网址檚 judgment both took place in court in Abbotsford.
Mema was represented by Adele L. Burchart, while the city was represented by Robyn A. Jarvis.
Mema also has a B.C. Human Rights Tribunal complaint against the city, citing discrimination based on race, but a ruling has not been made in that case.
RELATED:
karl.yu@nanaimobulletin.com
Follow Karl on and
