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 city’s 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 Mema’s claim was filed outside a limitation period.
“I find that the six-month limitation period provided by [Section 735] of the Local Government Act applies to the unlawful termination claim – that is the allegations of non-compliance with the city’s statutory procedural requirements for termination – as well as the wrongful dismissal claim, which is inextricably connected to the termination issue. I dismiss those portions of the plaintiff’s claim in their entirety,” Caldwell said in his reasons for judgment.
The city had alleged that questionable purchases were charged to Mema’s 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 Caldwell’s 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 “continued to incur further personal charges on the [card].”
In his court filing, Mema claimed the “conduct of the city was a material and fundamental breach of its obligation of good faith and fair dealing,” something that caused him distress. He sought damages for breach of contract and “special damages for out-of-pocket expenses incurred to mitigate his losses and obtain alternative, comparable employment.”
Mema claims the agreement did not “absolutely preclude use of the [card] for personal expenses. In addition, “[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.” He also stated city staff didn’t 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 “was in play.”
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 didn’t think it was necessary given the circumstances.
Further, he noted that the limitation period doesn’t apply to the allegations regarding breach of good faith and intentional infliction of mental suffering, “as the operative legislation clearly does not provide any lawful means or process by which the city could carry out such acts lawfully.” 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 week’s 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.