A B.C. Supreme Court judge has ruled that a Squamish pub and restaurant owes $64,000 to a former employee for wrongful dismissal damages.
In a judgment from Justice Nigel Kent, former general manager Marco Fanzone was wrongfully terminated from his position at the Shady Tree Neighbourhood Pub on March 17, 2020. Prior to the termination, Fanzone had been employed by the local pub since January 1997 and was hired by the owner, Eivind Tornes.
In a written judgment, Dec. 1, Kent wrote that Fanzone’s employment with the pub was not frustrated by the COVID-19 pandemic and therefore he should have received 20 months of notice prior to termination without cause.
“The events surrounding the termination of Mr. Fanzone’s employment were unique, namely the advent of a pandemic which resulted in Public Health Orders to close establishments such as the plaintiff’s pub,” wrote Kent.
But Kent wrote that Fanzone issued his lawsuit two months following the closure and, by that time, the provincial health officer, Dr. Bonnie Henry, had changed the circumstances around restaurant and bar closures.
“[T]he public health officer had issued her March 20, 2020 order permitting take-out or delivery service and had also just issued her May 15, 2020 order permitting standing and seated service at establishments,” he wrote.
Tornes argued that it was impossible for the Shady Tree to re-open because the dimensions of the kitchen did not allow staff to maintain a safe distance from each other and submitted photographs with handwritten measurements.
However, the court ruled that this was a choice rather than mandatory.
“Even when most if not all of the other pubs and restaurants in the Squamish area re-opened, he chose not to follow suit, whether with or without renovations necessary to accommodate any COVID-19 health and safety policies,” wrote Kent.
Additionally, when questioned in court, the judge recalled, Tornes revealed that the B.C. Employment Standards Branch had previously found him liable for severance payments to seven former employees in the total amount of $10,000.
Kent ruled that the failure to provide Fanzone with the prior notice of termination or pay in lieu of such notice “amounts to a breach of the employment contract” by the Shady Tree Pub, which entitled Fanzone to the wrongful dismissal damages of $64,000 as outlined in the ruling.
However, Kent dismissed Fanzone’s claim for punitive damages despite the conduct of Tornes throughout the litigation.
“That is a question more properly addressed not through an award of punitive damages but instead by an assessment whether special costs are appropriate,” wrote Kent. “That bridge will undoubtedly be crossed when the time comes, but in the meantime I decline to make an award of punitive damages.”
The Squamish Chief tried to reach Tornes since the ruling, but did not hear back by deadline.
