Citation:

Ntibarimungu v. Vancouver Career College

2009 BCPC 0254

Date:

20090811
0822285
Vancouver

File No:
Registry:

BETWEEN:
FREDERIC NTIBARIMUNGU
CLAIMANT
AND:
VANCOUVER CAREER COLLEGE INC.
DEFENDANT

REASONS FOR JUDGMENT

OF THE
HONOURABLE JUDGE PHILLIPS

Appearing on their own behalf:

Counsel for the Defendant:
Place of Hearing:
Date of Hearing:
Date of Judgment:

F. Ntibarimungu
L. Brasil
Vancouver, B.C.
July 28, 2009
August 11, 2009

Overview

[1]
The Claimant, Frederic Ntibarimungu, began teaching courses for the Vancouver Career College in
January 2006. On November 16th, 2007 the College told Mr. Ntibarimungu that the company no longer required
his services and terminated his employment. Mr. Ntibarimungu sued the College for wrongful dismissal, breach

2009 BCPC 254 (CanLII)

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

of contract, aggravated damages due to bad faith and other relief. This is the decision of the Court following the
trial held in this case.

[2]
Mr. Ntibarimungu (hereinafter the Claimant) is a member of the Canadian Payroll Association and has
experience in payroll and other financial work. On January 6, 2006 he entered into a written agreement with the
College to work as an instructor for the college. The written employment contract included the following
terms:
1.1

The Instructor agrees with the Employer to perform the duties and exercise the responsibilities
required as an Instructor, as set out in the position description attached hereto as Schedule A
and as per agreed upon courses as outlined in Schedule B.

1.2

The Instructor understands that Schedule B may be amended/revised from time to time with
the agreement of both parties. The Employer is under no obligation to provide ongoing
employment other than to fulfill the conditions of Schedule B.

2.1

In consideration of the Instructors undertaking and performance of the obligations contained

in this Agreement, the Employer will pay the Instructor the amount per hour paid bi-weekly.
The Employer shall deduct all amounts required to be remitted.

4.0
The Instructor shall not be entitled to payment of overtime wages unless the overtime is
previously authorized in writing by the Employer.

5.1

7.1

The term of this Agreement will be indefinite.

This Agreement may be terminated by the Employer as follows:

a.

In the absence of just cause, the Employer may terminate the employment of the
Instructor by giving notice of termination or payment in lieu of notice of termination in
accordance with the provisions of the Employment Standards Act The Instructor is not
entitled to any additional notice or payment in lieu of notice in excess of what is required
to be given or paid under the provisions of the Act

b.

Where there is just cause for the termination of employment, the Instructor will not be
entitled to notice of termination or payment in lieu of notice. The employment of the
Instructor will cease upon receipt of termination notice. Just cause includes the
following conduct:

v.
vi.

12.1

incompetence or habitual neglect of duties.

engaging in conduct incompatible with the faithful discharge of your duties or that is
prejudicial to the Employers business;

This Agreement constitutes the entire agreement between the parties with respect to the
employment of the Instructor and supersedes any and all agreements, understandings,

2009 BCPC 254 (CanLII)

Evidence at Trial

warranties or representations of any kind, written or oral, express or implied, including any
relating to the nature of the position or its duration.
The Instructor acknowledges that the Instructor was advised to obtain independent legal advice
with respect to entering into this Agreement, that such advice has been or has been expressly
waived, and that the Instructor is entering into this Agreement with full knowledge of the
contents hereof, of their own free will and with full capacity and authority to do so.

[3]
Schedule B of this January 6, 2006 agreement was titled Teaching Assignment Confirmation and set
out that the Claimant would be paid $24.04 per hour and the time frame in question was from 1/9/06 2/3/06 4
hrs/day X 5 day/wk. The Schedule was signed by both parties.
[4]
Joan Vojnic testified on behalf of the College and told the Court she is the Campus Manager for the
Defendant College in Surrey. She testified she worked with the Claimant in Coquitlam where she became the
Campus Director for the College around April 2007.
[5]
Ms. Vojnic said she hired the Claimant to teach courses for the College in the fall of 2007 and she
learned of the Claimant through reviewing College files of inactive instructors. She said she met with the
Claimant on August 15th, 2007 and reviewed an employment contract with him and had him sign the
document. She said at one point she had to leave the room to look for some materials and left the Claimant
with the contract for him to review if he chose. The Claimant told the Court that he did not have time to read
the contract before he signed it on August 15th, 2007 and that he had no interest in getting legal advice before
signing it. He said he simply trusted the employer.
[6]
Ms. Vojnic knew the contract presented to the Claimant on August 15th was the standard one used by
the company and that the Claimant had previously worked for the College. At no time did the Claimant tell Ms.
Vojnic he needed more time to consider the Agreement before signing it nor did he tell her he had not read the
document. Ms. Vojnic told the Court that since the courses the Claimant would be teaching did not start for
another two weeks, had he asked to take the contract away to review it further, she would have allowed for that.
After the parties signed the contract, Ms. Vojnic said she would have given a copy of it to the Claimant. She
said it was her practice to give every instructor a copy of the contract. The Claimant testified he was not given
a copy of the contract until after his employment had been terminated.
[7]
This August 15th, 2007, second written contract of employment is virtually identical to the January 6,
2006 contract and contains the same key terms set out earlier in this decision. The signatures of the Claimant
and the College were witnessed. Schedule B to this second contract provided that the Claimant would be
paid $30.00 per hour and that the contract was to run from 9-3-07 to Jan 7-08 4hrs day 5 day per week.
[8]
The Claimant testified that in the fall of 2006 and the spring of 2007 he had worked as an instructor for
the Career Development Institute (CDI). He asked the Court to find that CDI and the Defendant College
were one and the same for the purposes of calculating his severance entitlement. He told the Court he
understood that CDI and the Defendant College have the same ownership. The Defendant disputed this
allegation and told the Court that at the time in question CDI was in fact a competitor business.
[9]
A letter from CDI to the Claimant dated October 5, 2006 was tendered at trial showing the Claimant was
offered a position as full-time Accounting Instructor with CDI as of October 10, 2006. The salary was
$34,706.88 per annum. The Claimant was to be on probation for three months, after which he would become a
permanent full-time employee. A letter from CDI to the Claimant shows that his employment with them was
terminated as of February 2, 2007.
[10]
A copy of a Record of Employment was provided to the Court by the Claimant for his work with CDI.
The document shows the Claimant was employed with CDI from October 10, 2006 to February 5, 2007. The
document further sets out that the Claimant was initially paid one weeks wages in lieu of notice and two weeks
severance later on.

2009 BCPC 254 (CanLII)

17.1

[12]
The Defendant College maintained that the Claimant was dismissed for cause under the August 15th,
2007 contract. Ms. Vojnic told the Court the College received complaints from students about the Claimants
teaching style which caused her to sit in and observe the Claimants class on September 12, 2007. Notes of Ms.
Vojnics observations on this date state: All seemed to go well when I there. After class I talked to Frederic
about encouraging the students to ask more questions.
[13]
In response to further student concerns, Ms. Vojnic spoke again with the Claimant regarding his
teaching around October 12, 2007. Her notes of this discussion state:
Talked to Frederic about his attitude to Noria and Estan (students) and the way he is instructing them.
Frederic feels that they are lazy and they should not be in this class as they are not intelligent enough
for going to school. I explained to him that we are here to encourage our students not put them down
and that they are our customers.
[14]
The Claimant did not dispute that Ms. Vojnic had spoken to him about his teaching style but denied
calling the students lazy or unintelligent. Furthermore, the Claimant provided the Court with a number of
report cards showing that all of the students in his classes were maintaining passing grades. He submitted the
report cards also established that the students who were complaining about his teaching had poor attendance
records and pointed out that these students ultimately passed his courses.
[15]
In a note she made to her file on November 12, 2007 Ms. Vojnic observed: Frederic has a very poor
attitude in teaching his class. I will be looking at getting another instructor to finish off this class.
[16]
According to the testimony of the Claimant, the defendant College terminated his employment at the
end of November 2007 without any notice to him nor any justification. Ms. Vojnic told the Court she handed
Mr. Ntibarimungu a notice of termination when it provided him with the following letter on November 16,
2007:
We regret to inform you that your contract with Vancouver Career College shall be terminated on
November 30, 2007 due to up coming changes in the program. We will be requiring an instructor with
different skills set.
[17]
Mr. Ntibarimungu testified he was not given a copy of the November 16th letter until a demand was
made for documents sometime in 2008. When questioned why he would stop coming to work as of November
30th, 2007 if he had not received notice, the Claimant offered only that this date marked the end of a series of
classes he was teaching. The Claimant took the position that the failure of the employer to provide him a copy
of the August 15th, 2007 employment agreement and the November 16th, 2007 termination notice was indicative
of bad faith conduct by the employer so as to give rise to a claim for damages for same on his part.
[18]
The Court was given two different internal College documents titled Employee Notice of
Termination relating to the dismissal of the Claimant on November 30, 2007. One of the Notices states the
Claimant was involuntary let go due to shortage of work. The second Notice states the Claimant was
involuntary let go due too much conflict with students. Both Notices were signed by Ms. Vojnic who told the
Court she had made an error on one of the documents and prepared a second document to remedy same.
[19]
Another Record of Employment was filed with the Court by the Claimant showing he worked from
March 5, 2007 through May 18, 2007. This Record shows the Employers name to be a numbered company.
The Defendant College acknowledged at trial that the Claimant had worked for it during this time period
although no additional documentation was provided by either party in relation to this third period of
employment. The Record of Employment makes no mention of any severance pay having been provided for
this interval.

2009 BCPC 254 (CanLII)

[11]
A copy of the Claimants Request for Payment to the Employment Standards Branch regarding his
work for CDI was filed with the Court. In this Request the Claimant set out that he commenced work with CDI
on September 13, 2006 and ended on February 2, 2007. He sought compensation for wrongful dismissal and
discriminatory practice. At this trial, the Claimant agreed the Employment Standards Branch matter involving
CDI had been settled before this trial.

[20]
In a letter from the College to the Claimant dated April 9, 2008, the employer set out the time frame
during which it said the Claimant worked:

Frederick worked on a contractual basis averaging 20 hours per week at a rate of $30.00 per hour.
[21]
The Claimant provided the Court with a copy of an e-mail message dated January 11, 2008 from Joan
Vojnic on behalf of the College. The e-mail advised the Claimant: There is a teaching position in Chilliwack
starting on Feb. 11 to April 18. Can you teach this class I will need to know by Monday. Its for APA. Ms.
Vojnic told the Court she spoke to her counterpart with the College in the Fraser Valley and cautioned against
hiring the Claimant. She understood this Chilliwack position did not actually work into a job for the Claimant
due to him attempting to negotiate both a salary increase and an expense account for lodging in the Fraser
Valley.
[22]
The Claimant told the Court he has been unemployed since his termination from the College in
November 2007. He provided the Court with copies of his resume and a letter from a prospective employer
dated December 9, 2008. The letter states:
Hi Frederic
I thank you so much for your interest in this role but just this morning the company has changed there
mind and now want to hire a senior payroll and benefits coordinator instead of an additional payroll
administrator. I apologize for this, but it happens. You have a great skill set and if I find anything
similar to this role I will definitely give you a call to see if you are interested. Please take care and
good luck with your search.
[23]
The Claimant testified he had hoped to get called back to work by the Defendant College in the
intervals between his three contracts with them but he did not get such work. The evidence also established the
Claimant made a claim for and received Employment Insurance benefits during some of the time between his
jobs with the College.
[24]
The Claimant provided the Court with a hand-written note dated April 27, 2009 apparently written by
his doctor. The brief note sets out that Mr. Ntibarimungu is deemed to be unemployed for 1 year due to
medical [indecipherable] depression and anxiety. No notice was given to the College of the Claimants intent
to provide this medical evidence to the Court nor was the doctor called to expand upon the contents of the note.
Very little weight can be assigned to this note.
[25]
The Claimant also provided the Court with his 2008 Canada Revenue Agency Income Tax Notice of
Assessment showing his 2008 income to be $3,933. Although the Claimant told the Court he had found no
work at all since he was terminated from his job with the Defendant College, he apparently made a small
income in 2008. Indeed, on his resume, the Claimant sets out that he worked as an Insurance and Investment
Advisor with CF Canada Financial since January 2008. In the resume, the Claimant itemized his work with CDI
as a separate entry from his work with the Defendant College.
The Employment Standards Act

[26]

The Employment Standards Act, RSBC 1996 c. 113 at s. 63 states the following regarding notice:
1.

After 3 consecutive months of employment, the employer becomes liable to pay an employee an
amount equal to one weeks wages as compensation for length of service.

2.

The employers liability for compensation for length of service increases as follows:

2009 BCPC 254 (CanLII)

This letter is to confirm that Frederic Ntibarimungu was employed with Vancouver Career College
from January 9, 2006 to February 3, 2006 and from March 5, 2007 to November 30, 2007 as an
Instructor at our Coquitlam Campus.

after 12 consecutive months of employment, to an amount equal to 2 weeks wages;

b.

after 3 consecutive years of employment, to an amount equal to 3 weeks wages plus one
additional weeks wages for each additional year of employment, to a maximum of 8
weeks wages.

The liability is deemed to discharged if the employee

a.

is given written notice of termination as follows:

i.

one weeks notice after 3 consecutive months of employment;

ii.

2 weeks notice after 12 consecutive months of employment;

iii. 3 weeks notice after 3 consecutive years of employment, plus one

additional week for each additional year of employment, to a maximum of 8
weeks notice;
b.

is given a combination of written notice under subsection (3)(a) and money equivalent to
the amount the employer is liable to pay, or

c.

terminates the employment, retires from employment, or is dismissed for just cause.

Analysis

[27]
The Claimant told the Court the College had acted in a discriminatory fashion against him. It was
difficult to discern what exactly the Claimant meant by this during the trial. It appears Mr. Ntibarimungu felt
other College instructors were treated differently than him and that someone was watching him in class and
reporting back to management. He also claimed for aggravated personal damages caused by students and staff
gossiping about him. The Claimant told the Court that the discrimination continues to this date.
[28]
Despite questions from the Court aimed at focusing the Claimants evidence on the claim for
discrimination, at no time did Mr. Ntibarimungu clearly identify which students or staff were responsible for the
discriminatory behavior. Furthermore, the evidence was far from clear as to whether this conduct took place at
the Defendant Colleges worksite or at CDI. Without clear evidence as to the behavior complained of and
reliable evidence as to the source of the discriminatory conduct, clearly this claim cannot be sustained.
[29]
Furthermore, the Human Rights Code of BC [RSBC 1996 c. 210] is a complete code for matters
involving discriminatory human rights practices in the Province of British Columbia. In so far as the Claimant
has put forth the proposition that the Defendant College was guilty of discriminatory treatment of him, this
Court does not have the jurisdiction to hear such a complaint.
[30]
The Claimant also made a claim for overtime work based upon the extra work he said he had to perform
as a result of late or incomplete teaching materials from the Defendant College. This claim cannot be allowed
given the clear language in the employment contract stating that the Instructor would not be entitled to payment
of overtime wages unless the overtime was previously authorized in writing by the College. There was no
evidence in this case of any such agreement having been made.
[31]
Furthermore, regarding the claim for overtime, although the Employment Standards Act provides for
minimum overtime pay requirements, the legislative terms are not implied terms of private employment
contracts and an employee is not entitled to enforce his statutory right to overtime pay in a civil action. In the
absence of a provision in the employment contract, compensation for overtime is not payable at common law.
[Macareg v. E Care Contact Centers Ltd. [2008] BCJ No. 765]

2009 BCPC 254 (CanLII)

3.

a.

[33]
The question to then be determined is given that the Claimant was not dismissed for cause, what was
the appropriate amount of notice required? In order to determine the applicable length of notice, the Court must
examine the time period(s) during which the College employed Mr. Ntibarimungu. I find the evidence at trial is
clear that the Claimant was hired for three short-term contracts of employment with the College and that he was
not hired on a permanent basis.
[34]
That the Claimant worked for CDI and received Employment Insurance benefits between his contracts
with the Defendant College is consistent only with there being breaks in his employment with the Defendant. In
other words, the evidence does not support the Claimants position that he was employed continuously by the
Defendant throughout the time period from January 2006 through to the end of 2007.
[35]
Although the Defendant College and CDI may now be owned by the same company, the evidence falls
short of establishing Mr. Ntibarimungus claim that at the time he worked for the two schools they were in
effect the same employer. Indeed the Claimants own resume suggests he thought the two schools were separate
operations. His claim against CDI with the Employment Standards Branch also shows the businesses were
separate for the purposes of calculating any severance pay. Consequently, I conclude Mr. Ntibarimungus
service with CDI cannot be taken into account in calculating the appropriate amount of notice in relation to the
Defendant College.
[36]
For the purposes of calculating any claim for severance, I find the applicable start date of the
Claimants employment to be August 15, 2007, the date he signed the second written employment contract with
the College. Despite the Claimants submission that he did not pay attention to the contract when he signed it, I
find he was familiar with the terms from his earlier contract with the College and that he signed it intending it to
be binding.
[37]
Clause 1.2 of the August 15th contract stated that The Employer is under no obligation to provide
ongoing employment other than to fulfil the conditions of Schedule B. Schedule B provided that the
Claimant would be paid $30 per hour and would work from 9-3-07 to Jan 7 -08 4 hrs day 5 day per week.
Based upon this clause, the College would be obligated to pay the Claimant for any hours he would have
worked from December 1st, 2007 through to January 7, 2008 as a fixed term contract of employment. The
Claimant submitted that on this basis he would be entitled to a further $2400 sum (80 hours at $30 per hour).
[38]
However, the August 15th, 2007 contract also provided the following with respect to termination
without cause (in paragraph 7.1(a)):
In the absence of just cause, the Employer may terminate the employment of the Instructor by
giving notice of termination or payment in lieu of notice of termination in accordance with the
provisions of the Employment Standards Act The Instructor is not entitled to any additional
notice or payment in lieu of notice in excess of what is required to be given or paid under the
provisions of the Act
Given the Claimants length of service with the Defendant College, under the Employment Standards Act he
would have only been entitled to two weeks notice. The evidence established that he was given Notice of
Termination on November 16th to finish his work on November 30, 2007, and as such the required two weeks
notice was, in fact, given.

2009 BCPC 254 (CanLII)

[32]
Turning to the thrust of the claim for severance pay, the Claimant submitted he signed an indefinite
employment contract with the Defendant College and thus should have remained in their employ unless he was
terminated for cause, which he says was not the case here. Although the College had concerns as to some of
the Claimants poorer teaching practices, I do not find these problems were significant enough so as to give rise
to cause for dismissal in law. Furthermore, the College had embarked upon a course of corrective behaviour
with the Claimant and at the time he was dismissed they had not given him sufficient opportunity to respond to
their concerns. The behaviour complained of did not sufficiently undermine the employment relationship so
that the dismissal could be said to have been for cause.

[39]
The general principle in law is that wrongfully dismissed employees on fixed-term contracts are not
entitled to reasonable notice but rather to the balance due under their fixed-term contract. The conflicting
provisions of the August 15th, 2007 contract must be resolved in favour of the Claimant based also on the contra
proferentem principle. The employer drew the contract and any ambiguity must be construed against it.

[40]
In conclusion, I find the Claimant was not dismissed for cause and as such was entitled to be paid for
the remainder of his fixed term employment contract. In the absence of any contrary evidence presented by the
College, the Claimant is entitled to payment of a further eighty hours of employment totalling $2400 (six weeks
@ 20 hours/week X $30 per hour).
[41]
For the reasons set out above, the claim for relief under the Human Rights Code is not within the
jurisdiction of this Court. The claim for overtime pay is dismissed as having been specifically excluded under
the employment contract herein. The claim for compensation for bad faith damages is not made out on the
evidence and even if the Court were to accept the Claimants version of the complained-of behaviour, it would
fall far short of the type of conduct for which the law would provide relief by way of an additional sum for
aggravated damages.
[42]
Finally, the claims for relief for insolvency, labour and employment, civil practice and procedure,
action for personal damages are all dismissed as being without any evidentiary foundation and for which there
is no recognized claim in law.
[43]
Accordingly, the Claimant is entitled to judgment in the amount of $2400 and to his reasonable Court
costs. Interest pursuant to the Court Order Interest Act will attach to the $2400 from January 8, 2008. If the
parties are unable to resolve the matter of costs, I delegate to the Registrar the authority to resolve same. Lastly,
the entire amount of the judgment must be paid to the Claimant by the College by no later than September 15th,
2009 unless before that date the College has set this matter down for a payment hearing and served the Claimant
with notice of same.

_______________________
N. N. Phillips
Provincial Court Judge

2009 BCPC 254 (CanLII)

Result