Diane Pepin Vs TWU

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Pepin v. Telecommunications Workers

Union,
2016 BCSC 790
Date: 20160503
Docket: S136439
Registry: Vancouver
Between:
Diane Pepin
Plaintiff
And
Telecommunications Workers Union
Defendant
Before: The Honourable Mr. Justice Greyell
Reasons for Judgment
Counsel for the Plaintiff: M.D. McNeil
Counsel for the Defendant: R.L. Edgar

S.A. Hanson
Place and Date of Trial/Hearing: Vancouver, B.C.

January 18 - 22, 25 - 29, 2016
Place and Date of Judgment: Vancouver, B.C.
May 3, 2016
Pepin v. Telecommunications Workers Union Page 2
[1] This is a claim by the plaintiff, Ms. Pepin, for damages arising from an alleged
breach of her employment contract (the “Contract”) with the Telecommunications
Workers Union (the “TWU”).
[2] The plaintiff claims she was not properly compensated for overtime hours,
pension benefits, salary increases, health benefits, bonuses, an Employment
Insurance rebate and other benefits she says she was promised in her Contract with
the TWU.
[3] The TWU denies it is liable to the plaintiff and says she was at all times
properly compensated under the Contract.
Background
[4] The TWU has traditionally represented the employees of Telus. As Telus has
grown, so has the TWU. The TWU now represents members in BC, Alberta, Ontario
and Quebec.
[5] As a result of its growth and the necessity of its Executive Committee to
communicate with members across Canada, in the fall of 2008 the TWU
commenced a job search for a Communications Specialist who would be fluent in
French and English to work collaboratively with the TWU’s Executive Committee in
communications with the TWU membership.
[6] The TWU hired a human resources specialist, Ms. Gayle Hadfield, to advise
and assist it in drafting the position description (as it was a new position) and to
assist during the initial hiring screening process.
[7] The position was advertised and interviews of candidates occurred in

November and December 2008. The plaintiff applied and was initially interviewed by
Ms. Hadfield over the telephone. She was highly recommended by Ms. Hadfield and
was subsequently interviewed by members of the TWU executive and ultimately
hired as the TWU’s new Communications Specialist.
[8] The TWU’s office and clerical staff are represented by the Canadian Office
and Professional Employees Union Local 15 (“COPE 15”). While the plaintiff was to
work in the TWU’s office she understood the TWU would seek her exclusion from
the COPE 15 bargaining unit either by agreement with COPE 15 or by an application
to the Labour Relations Board (the “LRB”).
The Terms of the Employment
[9] As the interpretation of the terms of the plaintiff’s Contract is in dispute, I will
review the negotiating history of how the Contract came into existence and the
wording of the Contract.
[10] When the plaintiff submitted her resume and application to the TWU she
indicated her interest in the position and, in her accompanying resume, that she was
seeking a salary range of between $75,000 and $99,999. Prior to her hire she had
several discussions with Ms. Hadfield. The plaintiff was advised the highest salary
the TWU could pay her was $74,000 which was the amount the TWU’s Business
Agents were paid at the time. Ms. Hadfield’s notes indicate she was told by the
plaintiff she was “fine” with that amount.
[11] Mr. George Doubt, the TWU President at the time, made an offer of
employment to the plaintiff on December 8, 2008. The plaintiff responded through
Ms. Hadfield she was “excited” about the offer but, she raised several issues she
wanted clarified. The first had to do with, as noted in an email to Mr. Doubt and
others on the Executive Committee she “just wants to ensure that, with her
responsibilities and Vancouver’s cost of living, that she doesn’t ‘go backward’ in
salary”.
[12] Ms. Hadfield suggested the TWU add (to an offer letter template) “some
wording that speaks to: [w]e will conduct a full role and compensation review in the
first quarter of 2009”. On December 9, 2008, Ms. Hadfield wrote in an email to
Ms. Lori Blackhall, the TWU Office Manager:
… For Diane [Pepin] are you able to find out from George [Doubt] if he’s okay
about the compensation/role review? We will need to get back to Diane on
that to ensure it’s a go. I mentioned to her that George and the Table Officers
are the ones to make that determination, and they obviously lead the
processes, so if they confirm that is their intention, she can be assured they
would follow through. I said there are no guarantees as far as outcomes, but
the intention would be there.
[13] On December 15, 2008, Mr. Doubt faxed the plaintiff a letter setting out the
proposed terms of her employment. The letter read:
Dear Diane,
It is with pleasure that we are confirming our offer and your acceptance of
employment as the Communications Specialist with the Telecommunications
Workers Union, on or before January 19, 2009.
The terms of the offer are as follows:
Salary: As included in the TWU/COPE 15 collective agreements,
$74,667.98 per annum to start. Future wage adjustments
will depend on negotiations.
Benefits and As currently described in the TWU/COPE 15 collective
hours of work: agreement.
Benefit coverage will commence with your employment
with the Union.
Relocation …
As with all new employees, a probation period will be in effect. As
Communications Specialist, your probation period will extend to July 19,
2009. Prior to this date, termination can be effected by either party without
notice, for any reason, and without any obligation to give notice or severance
compensation.
You will be reporting to the President of the Union, and indirectly to the other
Table Officers.
It is our understanding that you will be able to commence duties on January
19, 2009, and it will be my intention to meet with you early after you start to
set mutually agreed upon goals for 2009.
Welcome to the Telecommunications Workers Union, Diane. I am looking
forward to working with you in the coming years. To acknowledge your
acceptance in writing, would you please sign this letter?
Sincerely,
George Doubt
President
Telecommunications Workers Union
[14] The plaintiff responded in an email wanting to “clarify a few things … for my
own piece of mind”. She listed six matters she wished to clarify. The first was that
she had been informed by Ms. Hadfield the 2009 salary was $76,000 and that she
had been told that because the TWU was in negotiations, her salary might be
adjusted. She noted the language of the letter that future wages adjustments would
“depend on negotiations” and wanted some idea when negotiations would end.
[15] She also sought reimbursement for payment if her Montreal landlord sought
payment from her for early termination of her lease; an amendment to an initial
accommodation allowance the TWU agreed to pay and that “‘reasonable’ expenses”
would be covered in addition to $5,000 moving expenses the TWU agreed to pay;
entitlement to severance if terminated within her probation period and information
about her personal benefits. She noted, “I was not informed of any specifics (about
her benefits) but was told I am entitled to three weeks’ vacation. If someone from HR
could let me know what I should expect, that would be nice. No rush”.
[16] The plaintiff and Mr. Doubt spoke December 19, 2008. In an email to the
plaintiff of the same date, Mr. Doubt confirmed the TWU would pay her reasonable
moving expenses with receipts up to $7,500; would pay any early rental termination
penalty she incurred up to $2,025 subject to her making every reasonable effort to
find a replacement tenant; and advised her he would discuss with the Table Officers
of the TWU her request for severance “of some nature” if she was terminated during
her probation period and respond to her before January 10, 2009. Mr. Doubt
requested she return the signed employment offer if she was in agreement.
[17] The plaintiff signed the December 15th letter on December 22, 2008, noting
and attaching the amendments contained in the December 19 email. She
commenced work January 19, 2009.
[18] The plaintiff’s salary of $74,668 per annum was pegged at the salary earned
by the TWU’s Business Agents who, along with certain other employees, because of
their position, had their terms and conditions of employment set out in a Letter of
Understanding #2 (“LOU #2”) to the TWU/COPE 15 Collective Agreement.
[19] Because the plaintiff reported directly to Mr. Doubt, attended Executive
Committee meetings and was privy to discussions by the executive on TWU
strategic policy decisions, it was understood from the beginning of her employment
that her position would not be a union position: that is, although her Contract made
reference to the TWU/COPE 15 Collective Agreement, she would not be a COPE 15
member.
[20] It was understood the TWU would first attempt to obtain COPE 15’s
agreement the plaintiff would be excluded from their bargaining unit and, if not
successful, would apply to the LRB to have her position excluded.
[21] The TWU was not successful in obtaining COPE 15’s agreement that the
plaintiff’s position be excluded and, after an application, the LRB issued a decision
(BCLRB No. B141/2010) on August 19, 2010 dismissing COPE 15’s application to
include her position as Communications Specialist in their bargaining unit. The
exclusion was based on the LRB’s conclusion her position “fits within the confidential
exclusion in the Labour Relations Code because its duties include advising the
Employer in a confidential manner with respect to communications strategies during
labour negotiations and labour disputes with COPE”. By this time the plaintiff had
been employed by the TWU for some 19 months.
Relevant Events Concerning the Terms of the Plaintiff’s Contract
[22] On January 19, 2009, the plaintiff attended an orientation meeting with
Ms. Blackhall, the office manager, to discuss the terms of her employment.
Ms. Blackhall’s notes of the meeting reflect that she advised the plaintiff she would
be a salaried employee who was exempt from the COPE 15 bargaining unit; that she
would not work a nine-day fortnight (as the COPE 15 office employees did); that her
hours would be “as required”; that she would be paid the Business Agent rate; her
benefits were described as “Benefits - COPE” and she would be on a six-month
probation period. Ms. Blackhall also told the plaintiff she was not entitled to the nine-
day fortnight when she started work.
[23] The plaintiff testified she was not given a copy of the TWU/COPE 15
Collective Agreement.
[24] Ms. Betty Carrasco, a TWU Vice President agreed at her examination for
discovery she was present when Mr. Doubt explained the plaintiff’s benefits to her:
she was in a salaried position; she would be working Monday to Friday; would have
the same start and stop times as the COPE staff; she would receive the same
medical, dental, extended health and sick leave as the COPE staff; and if she
worked extra hours, they would be put into an in lieu bank at straight time (as the
Business Agents did). Ms. Carrasco said “we always had an intention of providing
her with a pension”, but that pension was not an issue discussed at the time of hire.
[25] In January 2009, after her hire, Mr. Bill Nielsen, the TWU’s
accountant/bookkeeper asked Mr. Doubt and Ms. Sherryl Anderson in an email
whether the plaintiff qualified for a Cost of Living Adjustment (“COLA”) as did the
employees in the COPE 15 bargaining unit at that time. He also asked if the plaintiff
was entitled to pay for two sick days. Mr. Doubt responded she was not entitled to
the increase as she hadn’t started work at the time of the adjustment. Ms. Blackhall
responded to Ms. Anderson, Mr. Doubt and Mr. Nielsen that under Article 11.01(a) of
the COPE 15 Collective Agreement employees are entitled to take two days a month
and that it had been her practice new employees were given the sick time on credit
which was deducted from a sick time bank once they had accumulated time, in effect
instructing him to apply the same practice to the plaintiff.
[26] On October 1, 2009 the salaries for the TWU’s President, Vice-President and
Secretary Treasurer and Business Agents increased by 2%. The Business Agent’s
salary then became $76,161.34 annually.
[27] In response to a request for vacation at Christmas in 2009, Mr. Doubt

requested that the plaintiff prepare an overtime list. She advised him that she had
been tracking her overtime hours during the year and, on November 19, 2009, the
plaintiff submitted a list of overtime hours “as per COPE Agreement” to Mr. Doubt for
approval. Subject to various corrections he approved the list giving her credit for
overtime hours but at straight time rates which was then to be put into her overtime
bank.
[28] The plaintiff did not raise further issues with Mr. Doubt’s handling of her
overtime claim until she commenced her lawsuit. In addition, the plaintiff
acknowledged on her examination for discovery that she knew when she filled out
the in lieu documents recording her overtime that she would be compensated for
overtime at straight time.
[29] On August 23, 2010, the TWU advised COPE 15 it had received the LRB’s
decision excluding the plaintiff from the COPE 15 bargaining unit. The letter
requested COPE 15 reimburse the TWU for pension contributions made by the TWU
to COPE 15 “on this employee’s behalf” and requested COPE 15 reimburse the
plaintiff’s initiation fee and union dues. The pension contributions were returned.
[30] On July 13, 2011, the plaintiff sent an e-mail to Mr. Doubt requesting a
meeting to “sit down soon and discuss the terms of my employment (salary, benefits,
vacation, etc.)”. She pointed out that she had been asked to wait until the LRB
decision which had been issued “some time ago” and that she knew the TWU had
been busy negotiating the collective agreement. She noted that she had “been with
the TWU for over two-and-a-half years so I think it’s time”.
[31] On July 14, 2011, Mr. Doubt assigned two executive members to discuss the
plaintiff’s terms of employment with her: Ms. Carrasco and Mr. Michael Thompson,
the Secretary-Treasurer.
[32] The plaintiff met with Ms. Carrasco and Mr. Thompson on August 17 and 18,
2011. At the first meeting the TWU representatives raised concerns about the
plaintiff’s performance, seeking clarity about her office hours and translation skills.
When asked what she expected from the meeting, the plaintiff said that she thought
the meeting was regarding the terms of her employment including wages and
benefits. She said she wanted to discuss a raise because at the time she was hired
she had been asked to accept a lesser salary until the LRB issued its decision and
that she was “assured” once the decision was issued “that my wages would be
adjusted”. The TWU representatives responded the last time they had a wage
increase was in 2008. The meeting ended with Ms. Carrasco and Mr. Thompson
telling the plaintiff they wanted to look into matters.
[33] The three met again the next day. The meeting lasted only about 15 minutes
and was adjourned after questions were raised by the TWU representatives about
whether the plaintiff was seeking other employment (she had updated her resume
on several job search websites). The plaintiff commented in her notes of the
meeting: “[t]he tension in the room was clearly uncomfortable”.
[34] Following the meeting the plaintiff instructed her lawyer to write the TWU
advising he was representing her in the negotiation of her employment terms. The
lawyer sought her employment records, any disciplinary reports upon which the
TWU intended to rely and a “new offer of employment”. The TWU responded it had
“no interest” in negotiating terms and conditions of employment through legal
counsel and that it would “discuss the matter directly with Ms. Pepin, and that is
what we intend to do”.
[35] Mr. Doubt then appointed Ms. Carrasco and Mr. Lee Riggs to negotiate the
new terms of employment with the plaintiff. Mr. Riggs drafted a new agreement for
discussion purposes. The terms of the first draft set out these proposed terms: that
the plaintiff would continue in employment for an indefinite period; that she would not
become a member of any union; defined her duties as Communications Specialist;
provided that she was employed in a position of trust; provided a place for insertion
of her salary and for a date for review of her salary (the original suggested such
review be bi-annual); provided she would work 37.5 hours Monday to Friday
between 8:00 a.m. and 4:30 p.m. and that any additional hours would be banked at
straight time into “the In Lieu time” bank in accordance with the TWU policy;
provided for increasing vacation depending on years of service and provided for
notice, or payment in lieu, in the event of termination without cause. The first draft
was used as a basis for discussions held between the plaintiff and Ms. Carrasco and
Mr. Riggs.
[36] On July 24, 2012, Carrasco, Riggs and the plaintiff met and discussed the
first draft. The discussions included when a salary review might happen, pension,
benefits, vacation entitlement, her ability to work from the TWU’s Montreal office and
the plaintiff’s position that any agreement reached should be retroactive to
August 19, 2010, the date the LRB decided her position should be excluded from
COPE 15’s bargaining unit.
[37] In her notes of the meeting, the plaintiff recorded her position that she did not
want the TWU to “refer or compare any of my potential benefits to your collective
bargaining (the TWU/Telus agreement). I’m not a party to it”.
[38] Ms. Carrasco and Mr. Riggs then prepared a second draft of the proposed
terms of employment which they discussed with the plaintiff at a meeting on July 26,
2012. The second draft provided that the plaintiff’s salary would remain at its current
level until January 1, 2016 and that it would then be increased by the same
percentage negotiated for clerical workers in the TWU/Telus Collective Agreement.
The second draft provided her medical, dental and extended health benefits would
be covered as currently provided to TWU officers; that the plaintiff become a
member of the TWU pension plan and long-term disability plan as set out in the
TWU/Telus Collective Agreement; provided for non-occupational illness; for the
banking of overtime at straight time hours and a vacation schedule. Mr. Riggs spent
some time at the meeting explaining the benefits of membership in the TWU/Telus
pension plan. The plan was a defined benefit plan whereas the COPE 15 plan was a
defined contribution plan. The second draft was left with the plaintiff on July 26 for
her review and consideration.
[39] On August 9, 2012, the plaintiff met with Ms. Carrasco to discuss the contents
of the second draft. There was further discussion regarding the TWU/Telus Pension
Plan. The plaintiff expressed her concerns that her job duties were not clearly
defined; that she was “very uncomfortable” with her salary “being contingent upon
whether or not the TWU can negotiate a salary increase with Telus” and the
unfairness of having to wait until 2016 for an increase given “all the officers, BAs and
office manager have received yearly raises…” and a concern that if she was not
accepted into the TWU/Telus pension plan that the TWU should contribute 10% of
her gross salary annually into an RRSP. According to the Union witnesses she was
assured there would not be a problem getting her into the pension plan.
[40] After the meeting the plaintiff recorded in her notes that Ms. Carrasco was
“not happy” as she thought the plaintiff was meeting to sign the Contract. In an email
recapping the meeting dated the same day, the plaintiff set out her concerns and
sought additional improvements, including if she was not approved for the
TWU/Telus Pension Plan that the TWU should pay 10% of her gross salary into a
secure RRSP in lieu.
[41] On August 2, 2012 a contract was presented to plaintiff for signature

essentially containing the contents of the second draft. The plaintiff responded to
Ms. Carrasco the same day she didn’t have time to review matters.
[42] On August 9, 2012 the plaintiff sent an email outlining her concerns about the
draft seeking improvements including there be no changes to her job description
without consent; the ability to work from Montreal two weeks a year; a wage
increase starting immediately and if she is not approved for the TWU/Telus Pension
Plan she get 10% extra pay in lieu.
[43] Not having heard further (Ms. Carrasco and Mr. Riggs were out of town), on
October 4, 2012 the plaintiff emailed both Mr. Riggs and Ms. Carrasco inquiring
“where you are at regarding my employment terms” and seeking a meeting.
[44] Ms. Carrasco replied she thought she and Mr. Riggs had “addressed all” the
plaintiff’s concerns and that they had come close to signing off an agreement; that
the TWU proposal was a package and if the plaintiff wanted “something different” the
TWU offer “may be off the table” and they would have to “sit down some time in the
future to discuss your employment contract”. The plaintiff was reminded the July
dates had been set as Ms. Carrasco and Mr. Riggs were busy throughout the fall of
2012 on union business.
[45] The plaintiff, Mr. Riggs and Mr. Brehaut met October 10, 2012. Mr. Riggs
informed the plaintiff the TWU would not include her job description in the proposed
new contract as the President could change her duties at any time; advised her that
her position was (in the plaintiff’s words “more akin to ‘clerical’ work” and would be
subject to any salary increase negotiated for clerical workers in the next TWU/Telus
Collective Agreement; that while the language of the new contract would not include
her ability to work out of the TWU Montreal office, the President would allow her to
do so. Mr. Riggs advised her that the TWU offer was a final offer: that the TWU’s
offer to contribute 10% of her salary to the TWU/Telus pension plan was in lieu of an
increase. She was advised if she accepted the pension offer, contributions would
begin her next pay cheque. She was initially advised she had until that night to let
the TWU know if she accepted the offer. She was later told she could think about the
offer; that there would not be a salary increase; that he would not “come back to the
deal”; and that “he made it clear that many people think I am overpaid for what I do
and would not give me a pay increase…”.
[46] The plaintiff sent an email to Ms. Carrasco and Mr. Riggs with a copy to
Mr. Doubt on November 27, 2012 expressing her “hope that we can finalize my
contract before the end of 2012.” She advised that there was “one area that requires
further attention” and that was that under the “terms presented” she would not
receive a wage increase until Telus and the TWU negotiated a new collective
agreement “in spite of the fact that the TWU negotiated wage increases for its
members during the last Collective Agreement bargaining”. She requested a raise
on the same terms “to stay in line with every other TWU worker” effective January 1,
2013.
[47] The plaintiff received no response. She sent a reminder December 13

seeking to continue her “contract negotiation”.
[48] On February 20, 2013, not having heard from Mr. Riggs, the plaintiff sent a
further letter to Mr. Riggs and Ms. Carrasco expressing her frustration with the
TWU’s a lack of response. Her letter contains the following extracts:
It appears that finalizing the terms of the Agreement is not a high priority for
you as I have not heard from any of you since that date [October 10, 2012].
… I am feeling extremely stressed and very anxious about the future of my
employment with the TWU. I have sought professional help in order to better
cope with this unwanted stress and anxiety…
I have done nothing to merit this level of neglect and insist that this be
resolved as soon as practicable. …
I cannot accept a wage increase tied to the TWU’s collective bargaining
negotiations scheduled for 2015. You are aware of my position in this regard.
It is my position that you should make any agreement with me retroactive to
the date of the Labour Board decision.
The fact that … everyone else in the office has union representation except
for me is quite perplexing and, truth be told, insulting. I have only worked in a
very dedicated fashion for the TWU and want to continue doing so and be
remunerated in a way that was promised when I started working for the
Union.
At this point, my intention is to solicit membership from another union and/or
seek legal advice. …
[49] In a jointly signed letter of February 22, 2013, Ms. Carrasco and Mr. Riggs
responded. The letter noted as they were “both dismayed by the tone” reflected in
the letter and warned “accusations made about your employer are, if not
insubordinate, certainly close to the line”. She was “directed” to keep her
communications on a strictly professional level. The letter asserted, in essence, that
the plaintiff agreed to the terms of the “package” the TWU had offered her in July
2012. Ms. Carrasco and Mr. Riggs took the position any “delay” was “a direct result
of your change in position last August” and reiterated that the TWU was “not
prepared to offer you any contract terms that are different than that which we
drafted, based upon our discussion in July, and presented to you August 2, 2012”.
[50] The letter advised the plaintiff that she had two options: either to continue her
employment under her current terms and conditions of employment or “accept the
proposal” as set out on August 2, 2012. The letter stated the offer was open to
March 1, 2013 and that if the plaintiff did not accept it her employment would
continue under her current terms and conditions of employment which, the authors
noted, they considered “both attractive and competitive”.
[51] The plaintiff did not respond until May 7, 2013. The plaintiff’s demand letter
was slipped under the hotel room doors of Mr. Doubt, Ms. Carrasco and Mr. Riggs in
the early morning hours at the TWU convention during elections for the executive
officers. Each was disturbed from sleep when this happened and upset. Each
thought the plaintiff had planned the timing and method of delivery to purposely
upset them. The plaintiff denied this allegation, saying she had delivered the letter to
hotel staff and asked them to deliver it to the recipients. She had no control over
when it was delivered and did not plan to upset them.
[52] In that letter, the plaintiff set out the benefits she considered she had lost by
not being provided with the benefits and hours of work set out in the TWU/COPE 15
Collective Agreement. The benefits she claimed she was entitled to included a 13%
employer pension contribution, pay increases, overtime pay at double time, a 2%
yearly bonus, two paid daily 15-minute breaks, the benefit of a nine-day fortnight, an
EI premium rebate and 20 days paid vacation commencing January 1, 2013. She
valued her loss at in excess of $153,542.48. She advised that she was prepared to
discuss these matters with the TWU “to reach an amicable settlement” failing which
she would retain legal counsel to seek legal redress.
[53] On May 17, 2013, the plaintiff gave the TWU two weeks’ notice she was
resigning from her employment effective May 31, 2013. In doing so, she advised that
the TWU she “felt that it was for my own well-being considering the circumstances of
my employment”.
[54] The notice of civil claim was filed August 26, 2013. The plaintiff claims the
TWU has breached her contract of employment by failing or refusing to negotiate in
good faith with her and that she was, in essence, constructively dismissed as a
result of the TWU failing to provide the salary and benefits it promised to provide in
her Contract. The plaintiff claims general damages, special damages, aggravated
and punitive damages as well as interest pursuant to the Court Order Interest Act,
R.S.B.C. 1996, c. 79.
[55] As at December 31, 2012 the TWU had contributed $3,909.76 to COPE 15’s
pension plan. The plaintiff had contributed $601.53 to the plan. It is my
understanding these amounts were returned to the parties.
The Position of the Plaintiff
[56] The plaintiff says the terms of her Contract are clear: that the TWU promised
to renegotiate the terms of her Contract once her position was excluded from the
COPE bargaining unit. The plaintiff says the “collective agreement” referenced in her
Contract is the TWU/COPE 15 Collective Agreement and that she is entitled to but
did not receive medical, dental and other health benefits at no cost to her; pension
contributions from the TWU reflecting 13% of her gross salary; an annual bonus of
2% of her salary; annual wage increases consistent with that increases to COPE 15
members; overtime at double time for hours worked in excess of 6 hours per day
and payment of an Employment Insurance rebate received by the TWU and
additional vacation days. The plaintiff says if the terms of the Contract are found to
be vague, as the document was prepared by the TWU, the court should apply the
principle of contra preferentum to the interpretation of the Contract.
[57] The plaintiff says at the time of her hire and signing the Contract, the parties
contemplated the plaintiff’s terms and conditions of employment would be equivalent
to those enjoyed by members of the COPE bargaining unit and that the TWU then
chose to ignore its commitment and unilaterally changed her terms of employment
against her wishes and leaving her in a vulnerable position given the parties’ relative
positions.
The Position of the TWU
[58] The TWU says proper interpretation of the Contract is that the salary the
plaintiff was to receive was, at the time the Contract was set at the Business Agent’s
rate and that any further increases were to be negotiated between the TWU and the
plaintiff. The TWU says the plaintiff was told before the Contract was signed that any
increase would depend on those negotiations and there were “no promises” there
would be an increase.
[59] The TWU also denies it bargained in bad faith with the plaintiff or that it
stalled negotiating with her. The TWU says it made several good faith offers to her
complying with the Contract and she rejected these offers.
[60] The TWU says the plaintiff was entitled to “benefits” as set out in the
TWU/COPE 15 Collective Agreement but that “benefits” should be interpreted as
health and welfare benefits: that such benefits did not include hours of work
(particularly the nine-day fortnight and overtime provisions at double time). The TWU
says a pension plan is not included in the definition of “benefits” and, alternately, that
the plaintiff showed no interest in becoming a member of either the COPE 15 or the
Telus/TWU Pension Plans.
Benefits under the TWU/COPE 15 Collective Agreement
[61] As the plaintiff claims she in entitled to benefits under the TWU/COPE 15
Collective Agreement, I will set those terms and conditions out. I will attempt to
differentiate between the collective agreement in effect when the plaintiff was hired
(January 1, 2006 to December 31, 2007) (the “2006 CBA”) which was being
renegotiated between the TWU and COPE 15 at the time the plaintiff was hired and
the subsequent collective agreement (effective January 1, 2008 to July 31, 2011)
(the “2008 CBA”). The 2008 CBA was revised “as of September 18, 2009”. I assume
that was the date the 2008 CBA was ratified by the TWU and COPE 15. The
agreements provide:
 a “regular work day shall consist of six and one-half (6 ½) hours between
the hours of 8:00 a.m. and 5:00 p.m.” and a “regular work week shall
consist of thirty-two and one-half (32 ½) hours worked between 8:00 a.m.
Monday and 5:00 p.m. Friday” (2006 CBA);
 a nine-day fortnight schedule whereby employees worked a regular work

week on day 1 from 8:00 a.m. to 4:30 p.m. with an unpaid one-half hour
lunch and two 15-minute paid breaks and on days 2-9 8:15 a.m. to
4:30 p.m. with an unpaid one-half hour lunch and two paid 15-minute
breaks (to allow for the 10th day off) (2008 CBA);
 Hours of work “may be varied subject to mutual agreement between the

Employer and the Union” (2006 CBA and 2008 CBA);
 Articles 7.07 of the 2006 CBA and 6.06 of the 2008 CBA provide that
overtime is to be paid at double time; Articles 7.13 and 6.11, respectively,
provide that with the approval of the employer overtime can be taken as
time off but paid at the straight time equivalent to overtime earnings;
 In the 2006 CBA, upon completion of 12 months’ service an employee is

entitled to 15 working days paid vacation; after five years’ service, 20
working days; and for years in excess of five years one additional day for
each year to a maximum of 30 working days;
 In the 2008 CBA, upon completion of 12 months’ service an employee is

entitled to 15 working days paid vacation; after six years’ service, 20
working days; after 12 years’ service, 25 working days; and after 18 years’
service a maximum of 30 working days;
 Under Article 8.05 of the 2008 CBA regular employees are entitled to a
vacation bonus of 2% of their gross earnings in a calendar year payable
December 31 of each year;
 Each employee is entitled to two working days per month sick leave with
full pay which can be accumulated from month to month to a maximum of
50 working days in the 2006 CBA and a maximum of 24 working days in
the 2008 CBA; and
 Under Article 11 of the 2006 CBA and Article 10 of the 2008 CBA (“Sick
Leave, Welfare Plans and Pension Plan”) employees are entitled to an
employer-paid medical plan, wage indemnity plan, dental plan, extended
health benefit plan, group life insurance plan, EI Premium Rebate of 5/12s
of the EI Premium Reduction (“where applicable”), a Long Term Disability
Plan and a contributory pension plan whereby the TWU contributes 13%
of an employee salary to the COPE 15 Pension Plan and employees
contribute 2% either to the Plan or, in the 2006 CBA only, to an RRSP of
their choice. The 2006 CBA specifies that contributions shall be made for
all employees not covered by the TWU’s existing plans and that all
employees shall be enrolled in the COPE 15 Pension Plan.
Letter of Understanding #2
[62] The LOU #2 was a Letter of Understanding between the TWU and COPE 15
covering three TWU employees in the positions of Editor, Executive Assistant and
Research Director.
[63] The LOU #2 provided that the three incumbents would work the same hours
as TWU Business Agents; would be paid the same as the Business Agents; would
be granted ATO days and annual vacation as per the collective agreement between
the TWU and BCTel (Telus). The LOU #2 further provided that effective the date of
ratification “new employees” who filled the three positions “shall be covered by all
terms and conditions of the TWU/COPE 15 Collective Agreement” including such
employee would be placed on a nine-day fortnight and the wage rate effective
January 1, 2005 was $37.16 per hour.
[64] The LOU #2 did not apply to the plaintiff yet those with whom she negotiated
took the position her job and the conditions of her employment were to be more
aligned with the TWU/Telus Collective Agreement and in particular the wage
increments for Telus’ clerical workers in the TWU bargaining unit. This was an
incorrect premise.
Discussion and Decision
[65] As the issue between the parties concerns the interpretation of the plaintiff’s
Contract, it is first necessary to discuss the approach the court should take when
interpreting contractual language. In Miller v. Convergys CMG Canada Limited
Partnership, 2014 BCCA 311, leave to appeal ref’d [2014] SCCA No. 424, Madam
Justice Neilson reviewed the law at para. 15:
[15] The court should strive to give effect to what the parties reasonably
intended to agree to when the contract was made. The starting point is the
language of the contract, which should be given its plain and literal meaning,
and be interpreted in the context of the entire agreement. Consideration may
also be given to the factual matrix surrounding the creation of the contract. If
the contractual language reveals two possible interpretations, the court
should seek to resolve this ambiguity by searching for an interpretation that
reflects the true intent and reasonable expectations of the parties when they
entered the contract, and achieves a result consistent with commercial
efficacy and good sense. Considerations of reasonableness and fairness
inform this exercise. If these principles do not resolve the ambiguity, extrinsic
evidence may be admissible to assist in ascertaining the parties’ intent. As a
last resort the principle of contra proferentem may be invoked to favour
construction of the ambiguity against the party that drew the agreement. This
principle may not be used, however, to create or magnify an ambiguity. As to
employment contracts in particular, these will be interpreted in a manner that
favours employment law principles, specifically the protection of vulnerable
employees in their dealings with their employers. Nevertheless, the
construction of an employment contract remains an exercise in contractual
interpretation, and the intentions of the parties will generally prevail, even if
this detracts from employment law goals that are otherwise presumed to
apply: Geoff R. Hall, Canadian Contractual Interpretation Law, 2d ed
(Markham, Ont.: LexisNexis, 2012) at 9-52, 66-70, 187-88.
[66] In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Justice
Rothstein elaborated on the approach to contract interpretation at paras. 47-50. He
noted that the overriding concern of the decision maker was to determine the intent
of the parties and the scope of their understanding adopting a “practical, common-
sense approach not dominated by technical rules of construction” and that
ascertaining contractual intention from the words alone can be difficult because
“words alone do not have an immutable or absolute meaning” absent a
consideration of the surrounding circumstance (at para. 47). He quoted Lord
Wilberforce from Reardon Smith Line Ltd. v. Hansen-Tangen, [1976] 3 All E.R. 570
at 574 (H.L.), at para. 47:
No contracts are made in a vacuum: there is always a setting in which they

have to be placed. … In a commercial contract it is certainly right that the
court should know the commercial purpose of the contract and this in turn
presupposes knowledge of the genesis of the transaction, the background,
the context, the market in which the parties are operating.
[67] Justice Rothstein at para. 48 said:
[48] The meaning of words is often derived from a number of contextual

factors, including the purpose of the agreement and the nature of the
relationship created by the agreement (see Moore Realty Inc. v. Manitoba
Motor League, 2003 MBCA 71, 173 Man. R. (2d) 300, at para. 15, per
Hamilton J.A.; see also Hall, at p. 22; and McCamus, at pp. 749-50). As
stated by Lord Hoffmann in Investors Compensation Scheme Ltd. v. West
Bromwich Building Society, [1998] 1 All E.R. 98 (H.L.):
The meaning which a document (or any other utterance) would
convey to a reasonable man is not the same thing as the meaning of
its words. The meaning of words is a matter of dictionaries and
grammars; the meaning of the document is what the parties using
those words against the relevant background would reasonably have
been understood to mean. [p. 115]
[68] He went on to state that the goal of contractual interpretation is to ascertain

the objective intent of the parties by considering the words of the contract in light of
the factual matrix surrounding them at the time the contract was made (at para. 49).
[69] As to the role of the facts surrounding the making of the contract the Court
said at paras. 56-58:
[56] I now turn to the role of the surrounding circumstances in contractual

interpretation and the nature of the evidence that can be considered. The
discussion here is limited to the common law approach to contractual
interpretation; it does not seek to apply to or alter the law of contractual
interpretation governed by the Civil Code of Québec.
[57] While the surrounding circumstances will be considered in interpreting
the terms of a contract, they must never be allowed to overwhelm the words
of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30).
The goal of examining such evidence is to deepen a decision-maker's
understanding of the mutual and objective intentions of the parties as
expressed in the words of the contract. The interpretation of a written
contractual provision must always be grounded in the text and read in light of
the entire contract (Hall, at pp. 15 and 30-32). While the surrounding
circumstances are relied upon in the interpretive process, courts cannot use
them to deviate from the text such that the court effectively creates a new
agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc.
(1997), 101 B.C.A.C. 62).
[58] The nature of the evidence that can be relied upon under the rubric of
"surrounding circumstances" will necessarily vary from case to case. It does,
however, have its limits. It should consist only of objective evidence of the
background facts at the time of the execution of the contract (King, at paras.
66 and 70), that is, knowledge that was or reasonably ought to have been
within the knowledge of both parties at or before the date of contracting.
Subject to these requirements and the parole evidence rule discussed below,
this includes, in the words of Lord Hoffmann, "absolutely anything which
would have affected the way in which the language of the document would
have been understood by a reasonable man" (Investors Compensation
Scheme, at p. 114). Whether something was or reasonably ought to have
been within the common knowledge of the parties at the time of execution of
the contract is a question of fact.
[Emphasis added.]
[70] With this legal framework in mind I will now turn to address the issues raised
by the parties.
The Factual Matrix
[71] The TWU is the certified bargaining agent representing Telus employees
across Canada in collective bargaining, collective agreement interpretation,
grievances and arbitrations and other employment-related matters. The TWU
employs a President, two Vice Presidents, a Secretary-Treasurer and some 17
Business Agents all of whom are elected to office. Most of the TWU executive work
from the TWU’s headquarters in Burnaby B.C. The TWU also employs staff who
work in the office and who are represented by COPE 15. In addition to engaging in
collective bargaining with Telus, the TWU as the employer negotiates and
administers the collective agreements with COPE 15. The TWU’s office manager is
represented by another trade union.
[72] The plaintiff graduated with a Bachelor’s degree in Women’s Studies (2002)
and a graduate degree in journalism from Concordia University (2003). Prior to
applying for the position of Communications Specialist she had held positions as an
“intern journalist” (2003-2006), as an associate in internal communications and
public affairs with a major pharmaceutical company (2004-2007) and as a freelance
writer with a media company (2007-2008).
[73] Clearly of the two parties, the TWU was much more sophisticated and
experienced in the context of employment issues. The TWU had bargained dozens
of collective agreements in the past and had extensive involvement in grievance
arbitration relating to the terms of employment of its members and its employees.
The TWU had hired employees in the past who were excluded from the COPE 15
bargaining unit under LOU #2.
[74] The plaintiff was not sophisticated in employment-related matters, although

she knew enough to negotiate allowances for moving expenses, rent protection for
her Montreal suite and a temporary housing allowance when she moved to
Vancouver.
[75] The filling of the Communications Specialist position was an important one for
the TWU. It was important the person who filled the position had the right skills. A
job description had been drafted for her with the assistance of Ms. Hadfield, a
human resources specialist. Candidates were interviewed and the plaintiff was
described by Ms. Hadfield as a “perfect fit” for the position. On the advice of the
consultant, the TWU agreed to pay the successful candidate a rate commensurate
to that of its Business Agents, the top salary paid to non-executive employees.
[76] The plaintiff’s concern regarding salary, as expressed to Ms. Hadfield and
through her to the TWU executive, was that while she agreed to the salary proposed
she did not want to “fall back” in the future. She wanted some assurance her salary
would be reviewed in the future and that it would keep pace with the standard of
living. The advice and assurance she received was that the TWU was in
negotiations with COPE 15 and would review her salary with her when and if the
position was excluded: there were “no guarantees”; “it would be up to the Executive
Committee”.
[77] It was in this context the Contract was drafted by Mr. Doubt. Mr. Doubt did not
seek legal advice when he drafted the Contract: the plaintiff did not seek legal advice
when she signed it. Given the facts and circumstances earlier in this decision, I find
that the TWU breached the Contract with respect to certain terms, discussed in
detail below. Mr. Doubt advised the plaintiff once her status as in or out of the COPE
15 bargaining unit was determined, the TWU would negotiate a new contract with
her. Given the terms of the Contract, the framework for the new agreement would
have been based on the TWU/COPE 15 Collective Agreement.
Salary
[78] I find the use of the language in the “Salary” provision of the Contract; “As
included in the TWU/COPE 15 collective agreements. $74,667.98 per annum to
start. Future wage adjustments will depend of negotiations” (emphasis added), when
read in context with the plaintiff’s requests at the time of negotiating the Contract,
was intended to give the plaintiff the assurance she had requested that she would
receive increases in the future based on increases the TWU negotiated with the
employees represented by COPE 15. I am fortified in this view because her benefits
were also tied to “[a]s currently described in the TWU/COPE 15 collective
agreement”. The two provisions must be read together.
[79] The assertions by the TWU at trial that the plaintiff misrepresented her
qualifications and proficiency in translating the French language are, in my view,
misplaced both in the context of the interpretation of her Contract and in a
determination of the remedy to which the plaintiff is entitled. The TWU’s assertions
or complaints concerning these two issues arose well after the Contract was entered
into and only during the course of negotiations for a revision of her employment
contract. They were not addressed as performance issues during the course of her
employment except, in my view, as a bargaining position during negotiations which
was intended to diminish her role within the TWU or to try to undermine her
contractual right to an increase in compensation. If the TWU had problems with the
manner in which the plaintiff was performing her job responsibilities, the appropriate
time for addressing those issues was during the course of her employment. There
no evidence of dissatisfaction with her performance being raised outside
negotiations for a revision to her salary.
Analysis
[80] In my view the Contract is less than clear and in these circumstances it is
appropriate to apply the contra preferentum rule to assist in the interpretation of the
Contract. There are at least two contentious provisions. The first is the meaning of
the clause “Future wage adjustments will depend on negotiations”. The second is:
what is meant by or included in “Benefits and hours of work”? I will discuss my
conclusions with respect to each.
[81] As to the meaning of “Future wage adjustments will depend of negotiations”,

there are four possible interpretations of this clause: that such future wage
adjustments 1) would depend of negotiations between the TWU and Telus (which
seems to have been the approach followed by Mr. Riggs and Ms. Carrasco in their
negotiations with the plaintiff); 2) would depend on the outcome of salary and benefit
negotiations between the TWU and COPE 15 in their future collective bargaining
agreements; 3) would depend on future negotiations directly between the TWU and
the plaintiff on an ad hoc basis; or lastly, would depend on negotiations directly with
the plaintiff following the negotiation of successive collective agreements between
the TWU and COPE 15.
[82] The Contract does not support an interpretation whereby the plaintiff’s future
wage adjustments would depend on negotiations between TWU and Telus, the
position taken by the TWU representative in the last round of negotiations with the
plaintiff in which she was essentially told to “take it or leave it”. The plaintiff was not
employed by Telus and her Contract had no relationship to any Telus employee
group; nor is the TWU/Telus Collective Agreement referenced in the Contract, unlike
the TWU/COPE 15 Collective Agreement. In the context in which the salary clause
appears in the Contract it also makes little sense future salary increases would
require the plaintiff to negotiate on an ad hoc basis directly with the TWU.
[83] In my view, the parties intended the plaintiff’s future wages to be adjusted by
reference to increases in salaries as they were negotiated in the TWU/COPE 15
Collective Agreements. Her salary was to be “[a]s included in the TWU/COPE 15
collective agreements, $74,667.98 per annum to start” (emphasis added). The use
of the plural in “collective agreements” is a clear indication “future wage
adjustments” will “depend on negotiations” of the COPE 15 wage adjustments in
those future collective agreements. This is consistent with the TWU accommodating
the plaintiff’s concern she did not want to be “left behind” in salary adjustments in the
future. The TWU/COPE 15 Collective Agreement was intended as the goal post to
be used in determining the plaintiff’s future wage increases.
[84] Had the TWU intended the plaintiff would not be covered by the salary
increases contained in the TWU/COPE 15 Collective Agreement, Mr. Doubt’s
response to Mr. Neilson shortly after the plaintiff commenced work would have been
quite different. Rather than refusing the adjustment on the basis the COPE 15
adjustments did not apply to the plaintiff, Mr. Doubt said the adjustment didn’t apply
because she hadn’t started work when the adjustment came into effect. The clear
implication was that had the COLA adjustment date occurred later it would have
applied to her.
[85] However, it is also my view that “negotiations” had a separate and distinct
meaning. While the “wage adjustments” would depend on the result of negotiations
with COPE 15, such negotiations would not be determinative but would also depend
on negotiations between the TWU and the plaintiff. The plaintiff was being paid at
the Business Agent rate. The only positions in the TWU which were paid more were
the four executive officers. Given the position and responsibilities of the executive
members, I think it improbable the plaintiff would have been successful in
negotiating a rate of pay higher than that of the Business Agent rate. For example, to
allow the plaintiff’s claim for increases based on increases granted to the clerical
employees represented by COPE would result in her being compensated at an
annual salary close to or in excess of that earned by the President.
[86] In my view, the TWU had a legal obligation to adjust the plaintiff’s wages and
her benefits as and when the TWU negotiated wage/benefit increments with COPE
15.
[87] There were several unique features of the plaintiff’s employment relationship.
As noted above, she was in the situation of working in the TWU office alongside
other COPE workers, but reporting to the President and working closely with the
Executive Committee. The TWU sought to treat the plaintiff in the same manner as a
former excluded employee who was in the position of “research director”, one of the
positions named in LOU #2. I find that the TWU breached the salary review
provisions of the Contract in doing so.
[88] Under the TWU/COPE Collective Agreement effective January 1, 2008 (which
was being negotiated when the plaintiff was hired) the plaintiff would be entitled to
an increase in her salary of 1% on July 1, 2009, a further 3% on January 1, 2010
and 4% on January 1, 2011. The latter increases will be capped at the salary earned
by TWU Business Agents throughout the period of the plaintiff’s employment as it is,
in my view, highly improbable she would have been successful in negotiating
increases in salary beyond that rate. The evidence established the salary of the
Business Agents was increased under the TWU Financial Policy of October 2008 by
2% to $76,161.34 on October 1, 2009. The evidence established Business Agents
had had annual increases in salary on October 1 on each preceding year. There is
no evidence as to the salary of Business Agents following the increase on
October 1, 2009. I refer this matter to the Registrar to do an accounting of the
amount of wage increments owing to the plaintiff from the date of the LRB decision
in August, 2010 to the last day of Ms. Pepin’s employment with the TWU, should the
parties not be able to resolve the issue.
[89] It is apparent from the discussions between TWU representatives during the
negotiations that several TWU officers and others who worked with the plaintiff
developed the view she was not as proficient or fluid in translation into the French
language as she made herself out to be when she was initially hired. At the trial, the
TWU challenged whether she in fact had a Master’s degree as she had held out in
her resume when she applied for the position of Communications Specialist or a
graduate diploma.. In my view, these issues are not a substantive defence to the
plaintiff’s claim the defendant has breached the Contract. The plaintiff has been
employed by the defendant for some seven years before she elected to resign. As
stated the TWU should have been well aware of any alleged deficiencies in the
plaintiff’s performance of her responsibilities and have dealt with them directly with
her as performance issues during that period of time.
Benefits
[90] In my view the term “benefits” must be read more broadly than simply medical
and dental benefits as asserted by the TWU. While I will deal with “hours of work”
and pension entitlement separately, the word “benefits” in the Contract is not in any
way qualified. The plaintiff considered them “personal benefits”. Mr. Doubt said he
told the plaintiff “they would be health and welfare benefits described in the COPE
15 Collective Agreement”. In my view “benefits” would include at least medical and
dental benefits, short and long term disability benefits, vacation entitlement and, for
reasons to be discussed, pension benefits.
[91] In Poplack v. Intermetco Ltd. (1999), 24 C.C.P.B. 102 at paras. 26 and 27

(Ont. C.J.), Mr. Justice Roberts said:
26 The Employment Contract states "Benefits ... would continue for a like
period." Like period is one year. Benefits are not specifically defined. The
contract states "... You will be entitled to the Intermetco Limited stock option
plan." In addition the contract states "You have been given the entitlements of
the company group benefits in discussions with Doris Mair. Entitlement to
participate, including the pension plan, begins August 2, 1994."
27 Does the term "benefits" include the stock option plan? The term in the
Contract of Employment is ambiguous and, I hold, brings into play the contra
preferendum rule of interpretation of a contract. In this case the contract was
drawn by Intermetco. The term "benefits" should be construed broadly in
favour of the plaintiff. I hold that the termination clause which states "benefits
... would continue for a like period" includes the share option plan. The denial
by the defendant of this contractual right, constitutes "an unlawful breach" of
the Employment Contract.
[Emphasis added.]
[92] I find that the plaintiff was entitled to the above noted benefits and the TWU
breached the Contract by not providing the plaintiff with these benefits. I also find the
plaintiff is entitled to the 2% vacation bonus referred to in Article 8.05 of the
TWU/COPE 15 Collective Agreement (Art 9.05 of the 2008 Collective Agreement) as
I find this to be included in the term “Benefits”. I award the plaintiff vacation pursuant
to the vacation entitlement COPE 15 employees are entitled to under their collective
agreement as well as compensation for the loss of Family Day.
Pension Plan Coverage
[93] “(B)enefits” in the TWU Financial Policy (October, 2008) refers to the “master
section” of the Telus/TWU Collective Agreement which applies to “paid officers”. All
paid officers are members of the Telus./TWU Pension Plan. “Pension Plan” is
included in Articles 10 and 11 of the respective TWU/COPE 15 Collective
Agreements under an Article entitled “Sick Leave, Welfare Plans and Pension Plan”.
The items covered under the article are: Sick Leave; Medical Plan; Wage Indemnity
Plan; Dental Plan; Extended Health Benefit Plan; Pension Plan; Group Life
Insurance; EI Premium Rebate; Benefit Plan Coverage; Long Term Disability; and
Employee Assistance Program. In the contest within which the Pension Plan is
described in the Collective Agreement, participation in such plan must be regarded
as an employee “benefit”. In my view, had it been intended the plaintiff was not
entitled to participate in the COPE 15 Pension Plan, the Contract would have
specifically stated so. Again, in my view, this is a case where the doctrine of contra
preferendum should be applied as in the discussion of benefits.
[94] The TWU says the plaintiff was offered participation in the Telus/TWU
Pension Plan during the negotiations but rejected the TWU offer and this is an
indication she did not want to participate is such a plan and that the plaintiff received
back her contributions to the COPE 15 Pension Plan when the LRB excluded her
from the COPE 15 bargaining unit. I do not accept the plaintiff’s refusal to participate
in the Telus/TWU Pension Plan was an expression of her unwillingness to join a
pension plan. The TWU offer was made in the context of making a contribution
which would take the place of an immediate salary adjustment. In my view the
plaintiff was entitled to both a salary adjustment and to a contribution by the TWU to
the COPE 15 Pension Plan (or RRSP if she could not become a member of he
COPE 15 plan), not the Telus/TWU Pension Plan. She rightly took the position she
was not a Telus employee. Further, employee contributions under the Telus/TWU
Pension Plan involved higher monthly employee contributions from members than
did the COPE 15 Pension Plan.
[95] The plaintiff complained about certain deductions made from the plaintiff’s
pay cheque within the first several months of her employment (including COPE 15
membership dues and employee pension plan deductions) as she was not a union
member and COPE 15, at the TWU’s request, immediately ceased deductions for
union dues. Pension contributions continued to be made by both the TWU and the
plaintiff until the LRB issued its decision. While she did not complain when her
contributions were returned following the LRB exclusion decision or make a claim for
a pension during negotiations with the TWU, I find her focus was mainly on
achieving what she believed to be an equitable salary adjustment.
[96] I find the TWU did recognize its obligation to provide the plaintiff with pension
benefits when it raised the issue with her during the meeting of August 17, 2011.
Ms. Carrasco agreed in her examination the TWU always had the intention to
provide pension benefits to the plaintiff. The problem with the TWU’s proposals at
that time were they focused on trying to tie the plaintiff into not only the TWU/Telus
pension plan but also to a number of other provisions of the TWU/Telus collective
agreement including a future wage review dependant on collective bargaining with
Telus in 2016. The plaintiff rejected the proposal because she felt, rightly, that her
benefits were tied to the TWU/COPE 15 Collective Agreements. In my view the TWU
had an obligation to raise the pension benefit entitlement within the context of the
COPE 15 Collective Agreement; that is to discuss whether the plaintiff was entitled
to continue (or be reinstated to) the COPE 15 Pension Plan or, if that was not
possible, of making an RRSP contribution on her behalf equivalent to the benefit
COPE members were entitled to under the 2006 CBA.
[97] Under the TWU/COPE 15 Collective Agreements, the TWU is required to

contribute 13% of an employee’s gross earnings and the employee 2% of gross
earnings monthly to the Trustees of the Pension Plan. The plaintiff did not accept the
TWU’s offer to facilitate her joining the TWU/Telus Pension Plan wherein the TWU
would contribute 10% of her gross earnings annually and she would contribute a
percentage depending on her age (commencing at 4%). As stated, she rejected the
proposal as she felt she was entitled to receive COPE 15 benefits, and retroactivity
pursuant to that agreement as her Contract provided.
[98] Had the TWU offered a benefit similar to the pension benefit COPE 15
members enjoyed, as I find the TWU was obligated to do, I am of the view the
plaintiff would have accepted such an offer.
[99] I assess damages with respect to the plaintiff’s pension against the TWU in
the amount of $20,000 which is roughly four years of contributions the TWU would
have made on behalf of the plaintiff less a substantial contingency the TWU would
have been successful in negotiating the payment of an RRSP contribution with the
plaintiff which Ms. Pepin would have accepted in lieu of a pension contribution.
Hours of Work - Overtime Pay
[100] While the plaintiff’s “Benefits and hours of work” are specified in the Contract
to be “[a]s currently described in the TWU/COPE 15 collective agreement”, I find the
plaintiff understood at the time she was hired she would not enjoy certain
substantive benefits enjoyed by COPE 15 members. One of those benefits was
overtime pay at the rate of double time as set out in the TWU/COPE 15 Collective
Agreement. I find she understood and accepted she was only entitled to overtime
pay if such overtime was approved by Mr. Doubt or Ms. Blackhall and that any
overtime paid would be at the rate of straight time credited to an overtime bank from
which she could draw.
[101] When the plaintiff was briefed on her new employment by Ms. Blackhall on
January 19, 2009, she was advised she was a salaried employee (not an hourly
employee); that she was exempt from COPE 15; and that she was not entitled to a
nine-day fortnight and was required to work on an “as required” basis.
[102] In or about October 2009, the plaintiff submitted an overtime claim to

Mr. Doubt claiming overtime for a number of hours including travel time on behalf of
the TWU and for convention and committee meeting times often on weekends and
well outside of and in excess of her regular working hours. Mr. Doubt approved her
overtime claim (deleting some time she claimed for dinners) on December 18, 2009
noting his approval was “at straight time”. The plaintiff was subsequently credited
with these hours in her “in lieu” bank.
[103] At no subsequent time did the plaintiff claim she had been improperly dealt
with by Mr. Doubt when he credited her with straight time for the hours she claimed
or otherwise. She did not raise the issue during her numerous negotiations with
TWU representatives. She worked closely with Mr. Doubt on a daily basis and did
not raise the issue with him. The plaintiff was also granted liberties other
TWU/COPE 15 office employees were not granted. She was given permission to
work several weeks a year from Montreal, to work from home from time to time and
to start late on occasions.
[104] The first time the claim for overtime and to a nine-day fortnight was advanced
was in the plaintiff’s notice of civil claim. In my view, the plaintiff knew that all
overtime had to be approved and that given she was in a similar position to the
TWU’s Business Agents she was not entitled to overtime pay as set out in the
TWU/COPE 15 Collective Agreement. I find the plaintiff is estopped from asserting
such a claim given she has not asserted any claim for compensation for overtime for
some five years prior to claiming such in her lawsuit and she has never asserted a
right to a nine-day fortnight.
Claim for Aggravated and Punitive Damages
[105] The legal principles applicable to an award of punitive damages on the

termination of a contract of employment were reviewed by the Supreme Court of
Canada in Keays v. Honda, 2008 SCC 39 where the court stated at paras. 56 - 59:
56 We must therefore begin by asking what was contemplated by the parties

at the time of the formation of the contract, or, as stated in para. 44 of Fidler:
"what did the contract promise?" The contract of employment is, by its very
terms, subject to cancellation on notice or subject to payment of damages in
lieu of notice without regard to the ordinary psychological impact of that
decision. At the time the contract was formed, there would not ordinarily be
contemplation of psychological damage resulting from the dismissal since the

dismissal is a clear legal possibility. The normal distress and hurt feelings
resulting from dismissal are not compensable.
57 Damages resulting from the manner of dismissal must then be available
only if they result from the circumstances described in Wallace, namely
where the employer engages in conduct during the course of dismissal that is
"unfair or is in bad faith by being, for example, untruthful, misleading or
unduly insensitive" (para. 98).
58 The application of Fidler makes it unnecessary to pursue an extended
analysis of the scope of any implied duty of good faith in an employment
contract. Fidler provides that "as long as the promise in relation to state of
mind is a part of the bargain in the reasonable contemplation of the
contracting parties, mental distress damages arising from its breach are
recoverable" (para. 48). In Wallace, the Court held employers "to an
obligation of good faith and fair dealing in the manner of dismissal" (para. 95)
and created the expectation that, in the course of dismissal, employers would
be "candid, reasonable, honest and forthright with their employees" (para.
98). At least since that time, then, there has been expectation by both parties
to the contract that employers will act in good faith in the manner of dismissal.
Failure to do so can lead to foreseeable, compensable damages. As
aforementioned, this Court recognized as much in Fidler itself, where we
noted that the principle in Hadley "explains why an extended period of notice
may have been awarded upon wrongful dismissal in employment law" (para.
54).
59 To be perfectly clear, I will conclude this analysis of our jurisprudence by
saying that there is no reason to retain the distinction between "true
aggravated damages" resulting from a separate cause of action and moral
damages resulting from conduct in the manner of termination. Damages
attributable to conduct in the manner of dismissal are always to be awarded
under the Hadley principle. Moreover, in cases where damages are awarded,
no extension of the notice period is to be used to determine the proper
amount to be paid. The amount is to be fixed according to the same
principles and in the same way as in all other cases dealing with moral
damages. Thus, if the employee can prove that the manner of dismissal
caused mental distress that was in the contemplation of the parties, those
damages will be awarded not through an arbitrary extension of the notice
period, but through an award that reflects the actual damages. Examples of
conduct in dismissal resulting in compensable damages are attacking the
employee's reputation by declarations made at the time of dismissal,
misrepresentation regarding the reason for the decision, or dismissal meant
to deprive the employee of a pension benefit or other right, permanent status
for instance (see also the examples in Wallace, at paras. 99-100).
[106] In Chan v. Dencan Restaurants Inc., 2011 BCSC 1439 Mr. Justice N. Smith
said at para. 45:
The plaintiff also seeks aggravated and/or punitive damages. Aggravated

damages, also referred to as damages resulting from the manner of
dismissal, are available only if the employer engages in conduct that is “unfair
or is in bad faith by being, for example, untruthful, misleading or unduly
insensitive”: Wallace v. United Grain Growers Ltd. (c.o.b. Public Press),
[1997] 3 S.C.R. 701, at para. 98. But even where such conduct is present, the
plaintiff must demonstrate that it caused an additional loss that should be
compensated, such as mental distress or psychological damage beyond the
normal distress and hurt feelings resulting from any dismissal: Honda v.
Keays, 2008 SCC 39, at paras 56 and 57.
[107] I do not accept the plaintiff’s argument that punitive damages can be founded
in the TWU’s breaches of the hours of work and overtime provisions of the
Employment Standards Act, R.S.B.C. 1996, c. 113 [ESA] or Labour Relations Code,
R.S.B.C. 1996, c. 244 [Code] (regarding the provision she not join a trade union).
[108] In Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182, leave to
appeal ref’d [2008] SCCA No. 293, Mr. Justice Chiasson addressed this issue
saying at para. 73:
[73] The law is clear: the general rule is there is no cause of action at
common law to enforce statutorily-conferred rights. …
And at paras. 102-103:
[102] When a statute provides an adequate administrative scheme for

conferring and enforcing rights, in the absence of providing for a right of
enforcement through civil action expressly or as necessarily incidental to the
legislation, there is a presumption that enforcement is through the statutory
regime and no civil action is available.
[103] In this case, the ESA provides a complete and effective administrative
structure for granting and enforcing rights to employees. There is no intention
that such rights could be enforced in a civil action.
[109] In this case both the ESA and the Code provide complete remedies to the
plaintiff. The LRB has exclusive jurisdiction to determine breaches of the Code. An
award of punitive damages for breaches of the statutory provisions relied on by the
plaintiff would compensate the plaintiff in a manner inconsistent with the authorities.
[110] However, in my view, the plaintiff has demonstrated the TWU treated her in
an unduly insensitive manner over the period of some four years during which she
sought a salary review and other adjustments to the Contract. It was understandable
neither the plaintiff nor the TWU broached the issue of a review until the LRB issued
its decision as it was not until that time the parties knew whether she was excluded
from the COPE 15 bargaining unit.
[111] The plaintiff’s persistent requests for a review were reasonable given the
promises by the TWU in the Contract to review her salary and benefits based on
TWU/COPE 15 negotiations. The negotiations which did occur were quite different.
Rather than being based on the COPE 15 Collective Agreement the TWU
negotiators initially raised performance issues and advised the plaintiff that she was
overpaid for the job she was performing and, subsequently took the “take it or leave
it position“ any salary increase be referenced to the Telus clerical bargaining unit,
that she become a member of the Telus/TWU Pension Plan and that she defer any
salary increase to 2016, some four-and-a-half years after the Contract was signed.
[112] As stated, the TWU executive may have felt the plaintiff was not performing
her job duties as they had expected and they were paying her too much. Her job
performance issues were not addressed with her at any time during her employment
other than during the negotiations she initiated. In my view they were addressed at
that time to pressure her into abandoning her contractual rights. I am also of the
view the TWU’s ‘take it or leave it’ demand that she defer any wage increase to 2016
was strategically chosen to frustrate the Contract and the plaintiff. I find her
responses were not “insubordinate”: rather they were made out of her frustration at
being rebuffed and an employer’s offer that was far from the initial Contract she
entered into. In my view TWU’s conduct of negotiations with the plaintiff was
characterized by delay, by a lack of good faith and with little sensitivity for her and
warrants an award of punitive damages. In essence, the plaintiff had been
constructively dismissed and was justified in resigning her employment under the
circumstances.
[113] The TWU was put on notice in Ms.Pepin’s letter of February 20, 2013 the
plaintiff’s health was being adversely affected by its refusal to honour its contractual
obligations and that she was seeking professional help for stress and anxiety.
[114] I award the plaintiff $25,000 as punitive damages for the unduly insensitive
treatment she was subject to during her attempts to exercise her rights to
renegotiate the Contract.
[115] To summarize, I award the plaintiff salary increases to accord with the
percentage increases awarded to COPE 15 bargaining unit employees from the date
of the Contract to the date the plaintiff resigned her employment with a cap such
increases are not to exceed the amounts earned by the TWU’s Business Agents;
two percent of salary vacation pay; the loss the Family Day vacation; the EI rebate if
applicable to the plaintiff; damages for breach of contract for lost pension
contribution in the amount of $20,500 and punitive damages in the amount of
$25,000.
[116] Should the parties not be able to resolve the amount of salary awarded to the
plaintiff or other matters under the heads of damages awarded above I direct this
matter be referred to the Registrar under Rule 18-1(1) of the Supreme Court Civil
Rules for an accounting and that the results of such accounting be certified by the
Registrar pursuant to Rule 18-1(2).
[117] The parties have liberty to apply on the issue of costs.
“Greyell J.”

Diane Pepin Vs TWU

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Diane Pepin Vs TWU

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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Pepin v. Telecommunications Workers

Before: The Honourable Mr. Justice Greyell

Reasons for Judgment

Counsel for the Plaintiff: M.D. McNeil

Counsel for the Defendant: R.L. Edgar

Place and Date of Trial/Hearing: Vancouver, B.C.

[7] The position was advertised and interviews of candidates occurred in

The Terms of the Employment

Relevant Events Concerning the Terms of the Plaintiff’s Contract

[27] In response to a request for vacation at Christmas in 2009, Mr. Doubt

[41] On August 2, 2012 a contract was presented to plaintiff for signature

[47] The plaintiff received no response. She sent a reminder December 13

The Position of the Plaintiff

The Position of the TWU

Benefits under the TWU/COPE 15 Collective Agreement

 a nine-day fortnight schedule whereby employees worked a regular work

 Hours of work “may be varied subject to mutual agreement between the

 In the 2006 CBA, upon completion of 12 months’ service an employee is

 In the 2008 CBA, upon completion of 12 months’ service an employee is

Discussion and Decision

No contracts are made in a vacuum: there is always a setting in which they

[67] Justice Rothstein at para. 48 said:

[48] The meaning of words is often derived from a number of contextual

[68] He went on to state that the goal of contractual interpretation is to ascertain

[56] I now turn to the role of the surrounding circumstances in contractual

The Factual Matrix

[74] The plaintiff was not sophisticated in employment-related matters, although

[81] As to the meaning of “Future wage adjustments will depend of negotiations”,

[91] In Poplack v. Intermetco Ltd. (1999), 24 C.C.P.B. 102 at paras. 26 and 27

Pension Plan Coverage

[97] Under the TWU/COPE 15 Collective Agreements, the TWU is required to

Hours of Work - Overtime Pay

[102] In or about October 2009, the plaintiff submitted an overtime claim to

Claim for Aggravated and Punitive Damages

[105] The legal principles applicable to an award of punitive damages on the

56 We must therefore begin by asking what was contemplated by the parties

contemplation of psychological damage resulting from the dismissal since the

The plaintiff also seeks aggravated and/or punitive damages. Aggravated

And at paras. 102-103:

[102] When a statute provides an adequate administrative scheme for

[117] The parties have liberty to apply on the issue of costs.

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