What does a leader look like? Ask around and many will describe a confident, powerful, corporate figure, with a booming voice and shakable authority.
Somewhere along the way, we started to confuse “authoritative” with “leadership”. Intelligence became confounded with ability, and experience translated to competence.
Sure, an experienced, directive individual may well make for a competent leader, but that’s not the only definition.
A true leader is not defined by the dictionary or by what others may think about in the corporate context. A true leader is that individual standing in front of you. A true leader is defined by their story, journey, struggles, and by what they have survived from the time they were born.
In fact, anyone can be a leader.
Keep in mind, perspective is everything. Think about that person standing in front of you. That individual may appear to be quiet yet they’re focused. They may appear to be not moving forward, yet they’re processing. That individual may not appear to have leadership qualities, however they are actually utilizing leadership competencies by listening.
Leaders can be quiet. They can be introspective and may appear inexperienced. But in the right environment and under the right circumstance, you’ll see them shine. Any individual who has passion, resolve and integrity can have core leadership competencies.
Consider these leaders
Nelson Mandela is renowned as one of the most important leaders in history. But why? Because he could order people around and talk loudest at meetings? Not by a long shot. Mandela led through compassion and an unwavering commitment to ethics and honour. His self-sacrifice provided an example for others, and his dedication to life-long learning (even while in prison) proved he never thought he had all the answers. Soft spoken and humble, Mandela’s leadership qualities are steeped in emotional intelligence and humanity.
Malala stood up to the Taliban at age 11, and has been a tireless advocate of female education over the course of her young life. Malala is friendly, charming, and kind, and exhibits a high degree of empathy that guides her work. She is charismatic and idealistic, and serves others through the development of strong, intimate relationships.
My friend Diane
My friend Diane is a quiet, contemplative individual who spent many years in the corporate world. While there, she never considered herself a “leader” because she didn't take charge in meetings, or speak with a particular authority. But several years ago, Diane left corporate life to start her own business, which she successfully runs – balancing clients, projects, taxes, revenue, etc. Diane is a leader because she seized an opportunity to do what she is passionate about, had the courage to make a difficult decision, and delivers on promises every day. Most importantly, Diane understands that true leadership is not defined by external factors, but is defined from what’s within and the desire to be recognized, valued and contribute to society in the pursuit of living a fulfilled life.
How to recognize leadership competencies in your organization
The leaders among you aren’t necessarily the ones with the loudest voices or the most to say. True leaders possess certain characteristics.
A leader will:
A true leader also has to have the confidence to step aside. They have faith in their team and don’t impose their assertiveness onto them. Rather, they push and challenge them to be better. A true leader will step back and let one of their team members chair a meeting. A true leader should never be afraid to give up their position, because true leadership is not held in a title.
The next time you’re looking for a leader, look around you and be curious about what that person’s story is, and what lesson you can learn from them.
Developing EQ skills in your leaders
A successful leader will also have a high level of Emotional Intelligence. With high Emotional intelligence (or EQ), individuals can manage their own emotions, understand what they’re feeling – and why – and how these emotions can affect other people.
While IQ typically stops developing at age 17, EQ can be learned throughout one’s lifetime, meaning your leaders – and your potential leaders – can learn the essential skills to lead your organization. IQ is still vital – it’s a foundational element of a person’s life cycle. IQ and EQ begin from the day you’re born and are intertwined with each other as you grow. While IQ stops in young adulthood, EQ continues to develop. And through the consistent practice of EQ skills, anyone can develop the ability to use, understand and manage emotions in a positive, constructive way.
The definition of a leader is broad, and leadership qualities exist in everyone. Whether you’re forming a team, hiring a new leader, or evaluating your own competencies, consider what leadership really means. An expanded and evolved perspective of leadership may help you seize a new opportunity, discover a new superstar or create a collaborative squad that changes the game for your organization.
Ever been to a networking event; walk up to someone and ask them what they do?
You'll get answers like; I sell insurance or I sell employee benefits or maybe I'm a banker... blah blah blah.
Just once it would be refreshing to hear someone say something like;we partner with our customers to help them achieve success by increasing the performance and capacity of their people. Or, we sell training. People don't buy this, people don't buy insurance or benefits or training. They buy what these products give them, like; peace of mind or security or the growing their business. With insurance we buy it, hoping we never have to use it! So, why do most sales people insist on pedaling their products and not the benefits of their products? You don't know what you don't know.
For example, a pro football team sold out of all of their premiere suites last year, only 2 teams did this in the entire league. The team's record the year before was 6 wins and 10 losses. How do you think they accomplished this? Hint; it had nothing to do with the product and everything to do with why people were buying. Their sales people stopped pedaling tickets and seats and started selling the time that local business people could spend with their clients. What would your business look like if you could spend 3 hours every other week with your top clients and potential customers?
By asking a few more questions and getting clarity sales people can identify the reason why their customers buy and what they really want. They need to identify 4 things:
1) What they want
2) What they must have
3) what they would like to have and
4) Why they want it
When you have a clear picture of what the customer's current reality is, where they want to go, what it's costing them by not going there and how your solution can bridge the gap. You have all the necessary information to not only get the business but to also close the business faster. Oh, and by the way, if you sell this way you'll rarely hear potential customers say things like; we're happy with our current supplier or your prices are too high or we really don't need to change.
So, if you want to sell more faster, then find out why your customers buy from you. Here's a novel idea, ask your top customers why they buy from you and what benefits they experience by using your company and products or services. Some of the answers will surprise you and you will learn more from your success than you will from your failures.
By: Alice Wheaton
You can only gain customers from three sources: new business from new clients (strangers), new business from existing clients (keepers), and business from past clients (deserters).
A client once corrected me during a sales training session and said:
“No, Alice, they’re not deserters. They are usually deserted.”
I thought, Yes, that’s right! The client rarely leaves if they have been well cared for. So, let’s talk about how you can get those clients back with you where they belong. To do this, you must drain the swamp to get to the bottom of the issue. This means you need to meet with them and find out what caused them to leave in the first place. Only then can you do something about their desertion. After all, chances are that your competition is not doing a perfect job either and your past client might be looking for the opportunity to come back to your company.
You need to have an open discussion with them. You need to be able to make a call and say:
“My name is Janis Smith, and I am with XYZ Company. I know that you used to consider our company to be a trusted supplier but then you left—probably because we let you down. I’d like to come and explore that with you. I can’t say for sure that I’ll have any suggestions or solutions, but I’d sure like to know what we did to disappoint you.”
When the client understands the context of the meeting, they will likely agree to meet with you. When you arrive there, and they begin to tell you what went wrong, the worst thing that you can do is to justify, defend, or make excuses for what happened. If they complain about the quality or efficiency of your services and you respond with, “Well, you know, it was a difficult time for our company,” or, “The market was such that our prices had dropped,” you are justifying and defending and that worsens the situation.
Instead, it is important to respond simply and humbly to each complaint: “Thank you, I’m sorry that happened; tell me more.” This response is important because when you defend and justify what happened, you appear to be self-centered instead of client-centered which is what you promised to be.
Do have the grace to take responsibility for everything that caused your client to leave. Do not assign responsibility to your client. Don’t ever say:
“Well, you know, your project manager just couldn’t get his act together. We tried hard to work with you, but your project manager just would not cooperate.”
That may have been the case, but if you are trying to win the client back it is better to simply say, “You know what? If times were different, I would’ve dealt with that situation differently,” and move forward by talking about the changes in both your and your client’s companies:
“I would like to share with you some of the changes since we worked together because between now and then, changes have happened in your company and mine. I would like to share some of the process improvements we have made that now ensure an overall satisfaction rate of 98% from our clients. We hired new project managers and required existing project managers to be re-certified. For that reason, I wonder if you would reconsider giving us a second chance. I will personally stay involved at every step of the way.”
If the client still resists, offer the thin edge of the wedge. If you want their business back, say:
“You know, from my point of view, it looks like we can still do business together. What I would suggest, if it’s okay with you, is that we start over, not with a big project but with a smaller one. If we don’t meet your expectations, there’s less risk to you. How does this sound to you?”
Chances are, your client will say yes but you must continue to follow up with them. If you don’t, you and your company will continue to be considered as an insensitive supplier.
Returning to past clients with an agenda to bring them back is simple, but not easy. Most people indulge their instinct to defend and justify past actions. Our instinct is neither to shoulder any responsibility nor to accept blame. But (and I can’t stress this enough) when you’re a 100% accountable and you are 100% responsible, you are 100% trustworthy. Your clients will know when you’re that kind of person. It shows; people pick up on that because the attributes of leadership are universal.
This article is an excerpt from Alice Wheaton's latest publication:
BY: MIKE WEILER
The Supreme Court of Canada (“SCC”) choses cases based on the importance of the legal principles the case evokes. Generally the role of our highest court is to correct errors of law in the lower courts and to bring clarity and uniformity to the law for future cases and to allow the population to “know the rules of the game”. In some cases the court succeeds: eg Shaffron which deals with restrictive covenants in employment contracts. In other areas the court struggles to create that clarity for example in defining the scope of review of administrative tribunals: e.g. Dunsmuir.
In Matthews versus Ocean Nutrition Canada Ltd. 2020 SCC 26 the SCC overturned the Nova Scotia Court of Appeal and awarded an employee who had been constructively dismissed $1 million under an incentive plan because the triggering event for payment occurred during the 15 month notice period. Further, it held that the language in the LTIP did not remove this common law right to the bonus as damages for wrongful dismissal. This analysis clarified the law in this area but unfortunately the SCC also took this occasion to attempt to clarify various other aspects of wrongful dismissal law, including the duty of good faith in the performance of contracts. While clarifying certain aspects of the law of wrongful dismissal and damages, the decision creates uncertainty in respect of the scope of the duty of good faith and honest performance of contracts.
Mr. Matthews was a well-respected experienced chemist who occupied several senior management positions with Ocean. As a senior manager he was entitled to and enrolled in the long term incentive plan (“LTIP”). Under the LTIP a “Realization Event” such as a sale would trigger the payment to employees who would qualify under the plan.
In 2007 Ocean hired a new COO who began “a campaign to marginalize” Mr. Mathews which included limiting his responsibilities and lying to him about his prospects and status. He was ostracized within the company and the actions of the company officials were “characterized by dishonesty”. The misconduct was truly egregious as the company had “no qualms about leaving Matthews in a state of anxiety about his future” and left him in a “prolonged state of anxiety and uncertainty”. Mr. Matthews endured the misconduct for years primarily because he knew the company would be sold and he wanted to preserve his LTIP bonus. However he finally had enough and quit. He successfully sued for constructive dismissal and the court awarded damages based on a 15 month notice period. Neither the constructive dismissal nor the notice period was challenged in the SCC. The company was sold 13 months after he quit. In his wrongful dismissal action he claimed payment of the $1 million bonus under the LTIP. He also sought a declaration that the dismissal was done in bad faith.
BONUS PAYMENT AS DAMAGES FOR WRONGFUL DISMISSALThe SCC confirmed that in this case there were two basis to find a constructive dismissal as per its hallmark decision in Potter. First the employer had substantially breached an express or implied term of the employment contract by unilaterally reducing his responsibilities. Secondly Ocean’s mistreatment of Mr. Matthews over the years made his continued employment intolerable and the cumulative actions over time demonstrated that Ocean no longer intended to be bound by the contract.
The SCC noted that it was unnecessary to consider a separate claim for damages for the breach of the duty of good faith and honesty as the key issue of whether Mr. Matthews was entitled to the LTIP award was easily answered by applying common law damage principles.
The court clarified that a claim for the bonus was part of the claim for damages for wrongful dismissal and was not a claim under the LTIP. That is to say a court will put the employee in the same position as he would have been if he had been given “reasonable working notice”. Therefore the question was in the first instance “whether, but for the termination, the employee would have been entitled to the bonus during the reasonable notice period.” The court had no problem in finding that Mr. Matthews would have been so entitled.
The second question then is whether the terms of the LTIP removed Mr. Matthews’ common law right. The test for exclusion is very onerous and the language of the clause will be “strictly construed”. The language of the exclusion clause must be “absolutely clear and unambiguous”. So, for example, language requiring an employee to be “full time” or “active” will not suffice. Even language such as “with or without cause” will not suffice to remove the common law right to the bonus. The SCC puts an exclamation mark on this point—the exclusion clause “must clearlycover the exact circumstances which have arisen” in order to be effective (emphasis added).
The court applied these principles to find that the exclusion clause in the LTIP did not apply to exclude the bonus. That clause 2.03 read:
“ONC shall have no obligation under this Agreement to the Employee unless on the date of the Realization Event the Employee is a full-time employee of ONC. For greater certainty this Agreement shall be of no force and effect if the employee ceases to be an employee of the ONC regardless of whether the Employee resigns or is terminated, with or without cause.”
SCC then looked at clause 2.05 that had not been considered by the trial judge to see if it excluded the bonus claim. The clause read:
“The Long Term Value Creation Bonus Plan does not have any current or future value other than on the date of a Realization Event and shall not be calculated as part of the Employee’s compensation for any purpose, including in connection the Employee’s resignation or in any severance calculation.”
The SCC said no. It distinguished between “damages” and “severance”—the former protect employees by providing an opportunity to seek alternative employment; the latter “acts to compensate long-serving employees for their years of service and investment in the employer’s business and for the special losses they suffer when their employment terminates”. The court noted this is how the concept of severance is used in many provincial employment standards legislation.
The SCC also confirms that there is no implied term that an employer provide “pay in lieu” that would supplant the concept of reasonable notice. Such a term would be too complex to provide pay in lieu of notice; if there was a term that required “pay in lieu” then that would require the employer to pay it at the time of termination and finally pay in lieu would eliminate the obligation to mitigate damages by seeking alternate employment.
Interestingly the SCC ducked two important arguments that were made by counsel. First it did not consider whether the exclusion clause must be brought to the employee’s attention before it could be effective. Secondly it did not consider whether such exclusion clauses were contrary to minimum employment standards: see Machtinger v. HOJ,  1 S.C.R. 986.
In the normal course this would have been the end of the decision. The plaintiff had argued not only breach of contract but also breach of the duty of good faith. The plaintiff did not claim mental stress damages which are usually associated with bad faith claims. Nor did he pursue in the SCC claims for punitive damages. These damages may have been available to him if he had pleaded same:
So long as damages are appropriately made out and causation established, a breach of a duty of good faith could certainly give rise to distinct damages based on the principles in Hadley …including damages for mental distress. Punitive damages could also be available in certain circumstances.
The plaintiff never claimed damages for mental stress which are different than damages for wrongful dismissal. Since the result would have been the same i.e. payment of $1 million, it was unnecessary for the court to consider this alternative argument for damages for bad faith.
However although not necessary for the outcome of the case ,the SCC decided to opine on the nature of the duty of good faith performance of a contract as outlined by the SCC in Bhasin and further analyzed in Keayes and Potter.
The court noted that despite the outrageous conduct of the employer in the four year campaign highlighted by dishonesty, the trial judge did not explicitly find a breach of contract.
Here are a few principles extracted from this portion of the judgment:
This is a dismissal case. In light of the comment in Bhasin that the common law should develop in an incremental fashion, I would decline to decide whether a broader duty exists during the life of the employment contract in the absence of an appropriate factual record.”
Since the plaintiff offered no explanation as to why such a declaration should be issued the court would not make a declaration of a contractual breach related to good faith in the formal sense. But it went on to note on the facts that such a declaration would have been appropriate.
This last comment by the court is most troubling. The court provides no road map as to how these obiter comments will play out in future claims or what the utility of a declaration of a contractual breach related to good faith in the formal sense would be. Yet it continues to assert the importance of the role of work in an employee’s life. Nevertheless I am certain we will see plaintiffs’ counsel build on these comments to construct further claims against employers who have alleged acted in bad faith. Such claims might include in the extreme case a claim for reinstatement or extension of the notice period beyond the normal notice period.
TAKEAWAYSOn the key issue in the appeal, employers should consider the wording of their employment contracts to see if in fact they have contracted out of the obligation to pay any incentive bonus that would otherwise come due during the notice period. It will be extremely difficult to craft such enforceable language in light of this decision.
But perhaps a better solution is to ensure that there is a written employment agreement in place that limits the employee’s right to reasonable notice at common law. In this case it could have been possible under BC law to have an enforceable contract that limited Mr. Matthews’ damages to 8 weeks notwithstanding his 15 year tenure. That in turn on the facts of this case would have eliminated the right to the $1 million bonus.
The uncertainty created by the SCC’s obiter comments on the duty of good faith and honest performance is unfortunate. In the real world it is hard to be honest with employees all of the time. However the comments by the court serve as a good reminder to employers to treat their employees with respect and fairness and above all honesty.
Check out our Related Articles here.
Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact our Employment & Labour Group.
BY: Mike Weiler
“This high-conflict case arises out of the breakdown of a 20-year friendship and business relationship between Michael Price (“Mr. Price”) and Farrukh David Robson (“Mr. Robson”).
 In addition to their business and personal relationships, both Mr. Price and Mr. Robson suffer from significant life‑altering illnesses. The emotion engendered as a result of these factors led to a difficult and “hotly disputed” trial; particularly the factual matrix. Both sides accused the other of lies and fabrications. Within this context, the factual reality must be distilled.”
Two court cases illustrate what can go wrong. In both cases the employer had a binding contract that limited the employee’s rights, but were found liable for damages for negligent misrepresentations that occurred at the hiring stage.
Price v 481530 B.C Ltd 2016 BCSC 1940
In 2010 I wrote a blog on an interesting case involving a fight between two brothers who jointly owned a very successful company along with other companies they owned individually. One brother had laid off an employee from his own company and had him hired by the jointly owned company. The other brother strongly objected to the hiring and refused to pay him. The employee brought a complaint before the E S branch and was awarded a significant amount of wages. The court in a separate application broke the tie between the two brothers in the management of the company by referencing the articles but not after a huge amount of money had been wasted on legal fees.
Since then I have done two more blogs on similar cases while I sit in amazement on how much acrimony can develop with family or friends owned businesses:
Family Feud (weilerlaw.ca)
Family Feud #2 – Family Businesses, Take Note (weilerlaw.ca)
Family Feud Gets Downright Nasty (And Expensive)
Many of these problems could have been solved by careful planning at the outset. When I read the recent case of Dubois v Milne 2020 BCCA 216 I couldn’t help think it was “déjà vu all over again”.
Dubois v Milne
The Plaintiff and his spouse bought a 5% share interest in L Inc. a small, closely held company founded and owned by C. The Plaintiff and C were longtime friends. M convinced the Plaintiff to join the company as general manager and subsequently the Plaintiff became a 45% shareholder. The Plaintiff’s role increased and M’s role decreased over time. The Plaintiff was paid $100,000 and M’s salary remained at $60,000. M went into the hospital in 2009 and when her returned a year later he expressed a wish to reassert control over the business to which the Plaintiff acquiesced. However M had a deep negative attitude towards the Plaintiff for no apparent reason. In January 2011 M caused the company to terminate the Plaintiff. The wrongful dismissal action that ensued was settled. But that was not the end of the matter.
M as sole director appointed himself CFO at an annual salary of $100,000. He also approved for himself an annual salary of $50,000 as President and appointed himself Director of Purchasing at an annual salary of $75,000.
Most importantly he caused the company to stop paying dividends in 2010 and 2011 notwithstanding the dividend history of the company.
On August 1st 2021 the Plaintiff commenced an action in the form of a Petition claiming relief from oppression under section 227 of the Business Corporation Act. He sought an order that M purchase or redeem his shares for an amount determined by a valuator. The matter was placed on the trial list. The trial judge held in the Plaintiff’s favour finding that M had oppressed the Plaintiff and that M, not the company, should be ordered to purchase the Plaintiff’s shares. Given the excessive amounts M took in salary and the company’s current economic condition he ordered that the appropriate date to value the shares was the date of the Petition August 1st 2012. It is noteworthy that the company did start to pay dividends again in 2014. The appeal of the trial judge’s decision was dismissed with concurring reasons: Dubois v Milne 2020 BCCA 216.
Section 227(2) of the BCA is a powerful tool that is frequently used by disgruntled shareholders especially in small closely held companies. And there are many cases where the plaintiff/petitioner is also a key employee:
 Section 227(2) of the BCA establishes the oppression remedy:
(2) A shareholder may apply to the court for an order under this section on the ground
(a) that the affairs of the company are being or have been conducted, or that the powers of the directors are being or have been exercised, in a manner oppressive to one or more of the shareholders, including the applicant, or
(b) that some act of the company has been done or is threatened, or that some resolution of the shareholders or of the shareholders holding shares of a class or series of shares has been passed or is proposed, that is unfairly prejudicial to one or more of the shareholders, including the applicant.
The Supreme Court of Canada in the seminal decision on oppression cases in BCE Inc v 1976 Debentureholders 2008 SCC 69, at paragraphs 56-62 gave a broad and liberal interpretation to these provisions
 In our view, the best approach to the interpretation of s. 241 (2) is one that combines the two approaches developed in the cases. One should look first to the principles underlying the oppression remedy, and in particular the concept of reasonable expectations. If a breach of a reasonable expectation is established, one must go on to consider whether the conduct complained of amounts to “oppression”, “unfair prejudice” or “unfair disregard” as set out in s. 241 (2) of the CBCA.
 We preface our discussion of the twin prongs of the oppression inquiry by two preliminary observations that run throughout all the jurisprudence.
 First, oppression is an equitable remedy. It seeks to ensure fairness-what is “just and equitable”. It gives a court broad, equitable jurisdiction to enforce not just what is legal but what is fair: Wright v. Donald S. Montgomery Holdings Ltd. (1998), 39 B.C.L. (2d) 266 (Ont. Ct. (Gen. Div.)), at p. 273; Re Keho Holdings Ltd. and Noble (1987), 38 D.L.R. (4th) 368 (Alta. C.A.), at p. 374; see, more generally, Koehnen, at pp. 78-79. It follows that courts considering claims for oppression should look at business realities, not merely narrow legalities: Scottish Co-operative Wholesale Society, at p. 343.
 Second, like many equitable remedies, oppression is fact specific. What is just and equitable is judged by the reasonable expectations of the stakeholders in the context and in the relationships at play. Conduct that may be oppressive in one situation may not be in another.
 Against this background, we turn to the first prong of the inquiry, the principles underlying the remedy of oppression. In Ebrahimi v. Westbourne Galleries Ltd.,  A.C. 360 (H.L.) at p. 379, Lord Wilberforce, interpreting s. 222 of the U.K. Companies Act, 1948, described the remedy of oppression in the following seminal terms:
The words [”just and equitable”] are a recognition of the fact that a limited company is more than a mere legal entity, with a personality in law of its own: that there is room in company law for recognition of the fact that behind it, or amongst it, there are individuals, with rights, expectations and obligations inter se which are not necessarily submerged in the company structure.
 Lord Wilberforce spoke of the equitable remedy in terms of the “rights, expectations and obligations” of individuals. “Rights” and “”obligations” connote interests enforceable at law without recourse to special remedies, for example, through a contractual suit or a derivative action under s. 238 of the CBCA. It is left for the oppression remedy to deal with the “expectations” of affected shareholders. The reasonable expectations of the shareholders is the cornerstone of the oppression remedy.
 As denoted by “reasonable”, the concept of reasonable expectations is objective and contextual. The actual expectation of a particular shareholder is not conclusive. In the context of whether it would be “just and equitable” to grant a remedy, the question is whether the expectation is reasonable having regard to the facts of the specific case, the relationships at issue, and the entire context, including the fact that there may be conflicting claims and expectations.
The trial judge had a very unfavourable view of the credibility of M in contrast to the Plainfiff who the judge found was “a forthright and credible witness”. In the result the trial judge held that where the evidence of M is in conflict with evidence of the Plaintiff he accepted the evidence of the Plaintiff. In my view that finding in a case of equity and fairness indicated the eventual outcome.
Applying these broad principles the trial judge held that the Plaintiff had reasonable expectations that
 Dubois’ reasonable expectations that he would participate in the management of Lucid and that he would have employment with Lucid as long as he was a shareholder were contravened by the actions of Milne in wrongfully terminating Dubois’ employment.
 Wrongful dismissal by itself will not justify a finding of oppression. It is only where the interests of the employee are closely intertwined with his interest as a shareholder, and where the dismissal is part of a pattern of conduct to exclude the complainant from participation in the corporation, that the dismissal can be found to be an act of oppression: Krynen v. Bugg (2003), 64 O.R. (3d) 393 (S.C.J.) at para. 74.
 Milne wanted not only Dubois’ money in purchasing the shares in Lucid, but also his ability and skills. Dubois considered himself on an equal footing to Milne and I infer, based on the evidence, that up until 2010, Milne shared the same view.
 Dubois’ interests as an employee were closely intertwined with his interest as a shareholder. Dubois worked long hours and conducted himself as an owner would.
 In my view the wrongful dismissal of Dubois establishes a finding of oppression on its own.
 Further, Milne tripled his salary after Dubois was terminated. This was contrary to the Agreement and there was no precedent in the operation of Lucid to justify this. Based on the evidence, I find that Milne increased his salary for the specific purpose of depriving Dubois of the dividends he was entitled to.
 Milne wrongfully withheld dividends from Dubois, again for the purpose of forcing Dubois out of Lucid.
 In my view, these two further grounds would establish a finding of oppression on their own. However, I am confident that the cumulative effect of these actions by Milne clearly establishes oppression on his part against Dubois.
The decision of the trial judge was upheld on appeal.
The Honourable Chief Justice Bauman dismissed the appeal. However he disagreed with the trial judge’s last comment that a wrongful dismissal alone could constitute an act of oppression. As the Chief Justice noted:
I do note the error in the judge’s statement that, in his opinion, “the wrongful dismissal of Dubois establishes a finding of oppression on its own” (at para. 273). I emphasize again that the oppression remedy is distinct from contractual remedies: just as oppression relief does not require the breach of a contractual right to be available, so does a breach of contract not mandate oppression. To reiterate Justice Newbury’s statement from 1043325 Ontario Ltd. v. CSA Building Sciences Western Ltd., 2016 BCCA 258 at para. 54, quoted above:
[W]here the complainant is able to show an entire course of oppressive conduct which includes another cause of action (in Naneff, wrongful dismissal), that cause may also be remedied under the oppression provision.
[Emphasis in original.]
 Or, as Justice Blair stated in the trial decision in Naneff v. Con-Crete Holdings Ltd.,  B.C.J. No. 1756 at para. 25 (Ont. Gen. Div.), var’d with respect to remedy  O.J. No. 1811 (Ont. Div. Ct.), rev’d  O.J. No. 1377 (Ont C.A.):
[A] claim for wrongful dismissal is not, in itself, a proper claim to be asserted by way of oppression remedy. Where the dismissal is part of an overall pattern of oppression, and where the complainant’s position of employment is closely connected with his or her rights as a shareholder, officer and director of the company, or companies, in question, the dismissal may properly be considered as part of that pattern of conduct . . .
 Oppressive conduct can encompass other legal wrongs, but cannot be contingent on a finding of a separate legal wrong: see also BCE at para. 71, making this point. To the extent it suggested otherwise, the judge’s statement at para. 273 was incorrect. Yet given that the judge’s finding of oppression did not indeed rest on wrongful dismissal alone, and was based on the existence of close connection between Dubois’s employment and his rights as a shareholder, there is no error in the result stemming from this misstatement. I note further that there is no suggestion that the settlement Dubois entered into for his wrongful dismissal resolved any claims he might have as a shareholder, or that the remedy in this case duplicates a remedy for wrongful dismissal. The relief in this case was specific to his shares, and there is no argument he has been overcompensated for the harm suffered.
 The judge’s conclusion that Dubois’s employment expectations were reasonable in the circumstances betrays no error.
Mr. Justice Groberman would likewise have dismissed the appeal but he gave separate reasons concurred in by Madame Justice Fisher. The main point of disagreement with the Chief Justice appears to be the argument that the expectation of employment was tied to the Plaintiff’s interest as a shareholder:
Where shares have been issued on the clear understanding that investors will, as a consequence of holding shares, be entitled to employment, termination of that employment can constitute oppressive conduct against those investors qua shareholders.
 The mere fact that an employee is a shareholder does not mean that an oppression action will lie when the employee is wrongfully dismissed: Mohan v. Philmar Lumber (Markham) Ltd. (1991), 50 C.P.C. (2d) 164 (Ont. General Division). An action for oppression is concerned with the reasonable expectations of a shareholder qua shareholder. The onus was, therefore, on Mr. Dubois to show that he reasonably expected to continue to be employed by the company as a function of him being a shareholder.
 The judge accepted Mr. Dubois’s testimony, that he anticipated that he would continue to be employed by Lucid so long as he had shares in the company. He found that Mr. Dubois’s expectations were reasonable, but does not appear to have considered whether the expectations were expectations qua shareholder, or merely expectations qua employee.
 It is clear that the court must determine, in an oppression action, whether a shareholder’s expectations qua shareholder, are objectively reasonable. In my view, the evidence in this case was not capable of sustaining such a finding.
Notwithstanding these findings the justices would have likewise dismissed the appeal.
Feldstein v 364 Northern Development Corp (BCCA)
In this remarkable and troubling case the BC Court of Appeal upheld a damage award of $83,337 for a former employee for lost benefits due to a negligent misrepresentation made in the context of pre-employment discussions.
Mr. Feldstein had cystic fibrosis and at the hiring interview he claimed he disclosed his CF which was denied by the company. He asked about the company’s LTD plan. He asked about a monthly benefit limit of $1,000 apparent in the plan and he claimed he was told he would qualify for the full benefits of $4,677 if he worked 3 months without illness as that would satisfy the “Proof of Good Health” requirement in the plan. Again the employer denied it made these statements. After some months his health declined. When he applied for LTD he was told while he was entitled to LTD he was only eligible for $1,000 a month not the full benefit of $4,667 per month. His benefits were reduced because he had not filled out a medical questionnaire that was required to establish “Proof of Good Health”.
The court held the company liable for negligent misrepresentation. Its assurances at hiring were misleading and inaccurate because the insurer’s more stringent requirements were inconsistent with what had been represented at hiring. The court found that an implied representation may give rise to a claim for negligent misrepresentation. It stated:
“Mr. Nizker’s duty of care with respect to representations made during pre-contractual negotiations included not only a duty to be honest in making those representations, but also to exercise reasonable care in ensuring that the representations made were accurate and not misleading.”
An honest but mistaken belief did not relieve the employer of liability.
The court held that if he had been properly informed he would not have accepted employment with 364.
Finally the court ignored the fact that Mr. Feldstein, with legal advice, signed a written employment agreement that contained an “entire agreement” clause that was intended to avoid claims for representations made prior to the contract being signed.
This is an important case for HR specialists. For a more detailed discussion of this case I invite you to see my blog article at: Troubling Decision Of The Court Of Appeal On Negligent Misrepresentation
Michael J. Weiler has more than 35 years experience in the ever evolving world of employment, labour and human rights law. And experience in this area is critical to protect our clients—this is where law is not just a science but most often an art. Judgment is critical for our clients and that is what we bring to the table based on our years of experience. This means first and foremost knowing the law—keeping updated and current. Experience also means knowing the players in the game and their processes—the LRB, the Employment Standards branch, WorkSafeBC, the courts etc.
Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact our Employment & Labour Group.
Perfection does not exist. I have over 14 years Restaurant Experience and a day will never go by without a mistake, a complaint, or a unsatisfied customer. However, my experience has also taught me that there is no reason to fret over this. It will not ruin your company or restaurant and it does not mean that you aren’t excelling.
I once worked for someone who was obsessed with perfection. He thought every dinner service should be absolutely perfect. If one thing was a miss, no matter how minor, there would be repercussions and hard hitting words dealt to staff. It bothered me so much. His obsession with perfection made him lose sight of any accomplishments. It limited his ability to celebrate his staff and managers for what they had done successfully.
I tried to explain that to him once. I told him that perfection is what we strive for, but perfection does not exist...needless to say, he didn’t like that very much.
But it lead me develop this notion further and discover that perfection is not the key to success - excellence is. Excellence should be the standard of how all situations are measured.
When it comes to the Restaurant Industry you are dealing with two of the most fussy things in the world....people and food. Mistakes are inevitable, so how the situation was handled should be what you’re interested in. And that is where excellence comes into play. When we are continuously excellent, regardless of the situation, we effectively create space for mistakes to be solved, and solved in an impressive manner.
I have implemented this way of thinking in my own restaurant. Excellence is what we value at the Caffeine Bar. It is our belief that if we are always giving excellent service, excellent products, and excellent experiences then when there is a an issue - which will happen, we are only human - the solid ground of excellence we stand upon helps tp quickly resolve them. I believe the Caffeine Bar’s focus on excellence prepares employees to handle imperfect situations and correct them without any harm to the client relationship.
Instead of having an unhealthy obsession with perfection, focus on excellence. Focus on developing excellent consumer relationships, excellent products, and giving excellent service. Ultimately, your ability to deliver excellence is what creates trust with clientele.
Perfection doesn’t exist but if you are continuously excellent, it removes the need for perfection entirely.