Facts

Wildcat Helicopters Inc is a helicopter operator with a focus on aerial firefighting in Canada and Australia. Wildcat carries out its operations through a fleet of Bell 212 (B212) two-blade, twin-engine medium helicopters.

In January 2014 Wildcat received a CV from Michael Ellis. Ellis had obtained his helicopter pilot's licence in 2006 and at the time was working as a helicopter pilot at Great Slave Helicopters, based in Yellowknife, Northwest Territories. Ellis was looking to advance his career by getting experience flying larger equipment.

In April 2014 Wildcat was seeking to employ new pilots to assist with the upcoming forest fire season. It initially interviewed Ellis by telephone, at which point it advised him that he would require a B212 endorsement in order to carry out the work.

As Ellis did not have such a qualification, Wildcat offered to provide the required training, but only if Ellis was prepared to execute a pilot training bond in order to provide some protection to Wildcat from Ellis leaving the company for another operator immediately after the training was completed. In essence, the pilot training bond worked such that the cost of the training was set at C$30,000 and that, if Ellis were to leave Wildcat less than three years after the date of hire, Ellis would have to repay these costs, but would receive a credit towards this of 1/36 of the full amount for each month of service.

Ellis travelled to Wildcat's main facility in Kelowna, British Columbia a few days later, where he was interviewed by Dave Hauber, Wildcat's chief pilot, and Ian Wilson, vice president of operations. Wilson had a great deal of experience in hiring new pilots and had learned, in the course of gaining that experience, that it was best to have a checklist of issues to raise with prospective hires at the interview. Part of this checklist included a careful review of the following documents:

  • the employment agreement;
  • the confidentiality agreement;
  • the non-disclosure agreement; and
  • the pilot training bond.

Wilson followed this protocol when hiring Ellis and emphasised, in particular, that Wildcat would enforce the pilot training bond if Ellis were to leave the company prematurely.

After the interview, Hauber took Ellis on a 20-minute familiarisation flight on the B212. Ellis had never had an opportunity to fly a helicopter of this size. Hauber was satisfied with Ellis's performance.

Immediately following the familiarisation flight, Hauber and Wilson met privately and decided to offer Ellis a position. They printed the employment documents (as described above) and reviewed them in detail with Ellis by reading them aloud to him. Ellis had no questions and expressed no concerns. Hauber and Wilson offered Ellis the position, but encouraged him to get independent legal advice before signing the employment agreements.

In the following days, Ellis had a number of telephone discussions with Hauber. In one of these, Ellis advised that he had spoken with other operators and had been advised that some employers had a two-year duration on the pilot training bond (instead of the three-year term imposed by Wildcat). As a result, Hauber and Wilson agreed to reduce the length of the bond to two years.

On May 4 2014 Hauber and Ellis met again to sign the employment agreements. At this time, Ellis also signed the pre-employment checklist acknowledging, among other things, that the pilot training bond had been explained to him on April 25 2014.

Ellis's employment began the next day. By May 15 2014, he was certified by Hauber to fly the B212. (In addition to being the chief pilot for Wildcat, Hauber was also a Transport Canada check pilot and authorised to conduct pilot proficiency checks on the B212 – thereby qualifying him to issue B212 endorsements). On the day that the training was complete, Ellis was assigned to duty in Peace River, Alberta.

At this time, Wilson was responsible for positioning the B212 fleet in such a way as to make them available to fight fires as they arose. One week after Ellis was stationed at Peace River, Wilson decided that Ellis would be best deployed in Ontario to fulfil Wildcat's contract with the Ontario Ministry of Natural Resources (OMNR). He ordered that Ellis be transferred to Ontario as soon as he had the requisite flying hours.

Around this time, Hauber had heard from another of Wildcat's pilots that the OMNR had asked for a copy of Ellis's personal log in order to ensure that he fulfilled its minimum requirements.

The next day, Ellis and Hauber had a telephone discussion – the contents of which were not agreed upon. Hauber's version was that he requested a copy of Ellis's flight and duty logs. When he received them, it was apparent that they had been incorrectly filled out, such that they reflected Ellis's air time (ie, the time from the skids leaving the ground to when they touch the ground at the end of a flight), not his flight time (ie, engine on to engine off). Hauber asked that this be corrected. He also asked Ellis to take his personal flight logs to Ontario, in case the OMNR wished to review them.

Ellis advised Hauber that he had lost his personal log prior to his hire by Wildcat.

Ellis's version of events was that Hauber had asked him to record his flight time rather than his air time on the B212 in order to meet the OMNR requirements more quickly. Ellis was of the view that doing so was a violation of Transport Canada's rules and regulations. Ellis also alleged that Hauber asked him to modify his personal log to increase the number of hours that he had flown. Following this call, Ellis sent an email to Hauber stating (grammatical errors appear in original):

"As per our conversation and. The conversation. With [Wilson] the night before I want to confirm you and wildcat helicopters is asking me To pad and put incorrect times for the 212 and medium in my log book to meet the requirements of the company contracts?"

Hauber received this email on a Friday while driving home from work. It was his view that Ellis had misunderstood him. He decided that it would be best to address the matter on Monday, rather than explaining by email. He sent Ellis an email reading simply "Don't worry about it", thinking that the issue would be revisited after the weekend.

On Sunday, Ellis sent Hauber the flight and duty log, recording air time (contrary to Hauber's request).

On Monday, a series of emails were exchanged about the propriety of Hauber's request, culminating in Ellis receiving confirmation from Transport Canada that Hauber's approach of recording flight time (not air time) was indeed correct.

Ellis made the amendments to his logs and sent them to Hauber, but there were some inaccuracies in the recording of flight time. As one would expect, the entire incident placed a strain on the relationship between Hauber/Wilson and Ellis.

The next significant encounter took the form of a lengthy telephone conversation a few days later. On that call, Ellis complained to Hauber that his expenses were not being paid promptly and that he was concerned that he would not have the requisite time on the B212 before being deployed to Ontario. Hauber assured him that if this were a problem, the expenses would be paid the following day. He also asked Ellis to leave the issue of the required time on the B212 to him, as there was still a good amount of time before the transfer to Ontario was to take effect. Hauber suggested that Ellis's practice of sending "snarky" emails be discontinued.

Three days later, on June 5 2014, Wildcat received a letter from Ellis's lawyer claiming that Ellis had been constructively dismissed on the basis that he had been asked to 'pad' or falsify his flying hours. Ellis left Peace River, leaving Wildcat in a position where it had to spend resources on locating a replacement pilot in short order.

In July 2014 Ellis was re-employed by his former employer, earning slightly more than he was being paid to work at Wildcat.

As Ellis had only worked one month at Wildcat, Wildcat commenced legal proceedings to recover 23/24 of the C$30,000 training costs, as per the provisions of the pilot training bond. Ellis countersued for damages arising from breach of his employment contract (leading to an alleged constructive dismissal) and punitive damages.

Decision

As to Ellis's claim that he was constructively dismissed, the court found that the issue could be reduced to which party's version of events was accepted.(1) The question to be answered was: "Did either Hauber or Wilson instruct Ellis to pad or falsify his flight logs?"

The court made a finding that the credibility of Hauber and Wilson was to be preferred. The judge found that Ellis's answers on cross-examination were evasive and non-responsive, and that his testimony was vague and unconvincing. On the other hand, the Wildcat witnesses – including Hauber, Wilson and the company president – were straightforward, forthright and professional. The judge found that Ellis's misunderstanding of the regulations and the hostility that resulted were entirely self induced. Ellis's claim was dismissed. The court found that the evidence was "overwhelming that what … Hauber and Wilson asked [Ellis] to log was completely proper." The court held:

"The allegations made by [Ellis] are serious. The padding of flight hours or the falsifying of logs would have serious financial and other consequences for [Wildcat]. To suggest that [Wildcat] and its senior staff would compromise its business and their integrity by asking a pilot who had been employed by them for approximately two weeks to pad his flight hours is to strain common sense."

As to the claim brought by Wildcat, the court ruled that the pilot training bond was enforceable and ordered that Ellis repay 23/24 of the training costs (being C$28,750). The judge found that Wildcat had proven only that it incurred an additional C$350 in seeking a replacement pilot on short notice.

Ellis was ordered to pay Wildcat its legal costs on Wildcat's claim, as well as on the counterclaim issued by Ellis.

For further information on this topic please contact Carlos P Martins or Andrew W Macdonald at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800) or email (cmartins@lexcanada.com or amacdonald@lexcanada.com). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.

Endnotes

(1) Wildcat Helicopters Inc v Ellis, 2016 BCSC 2214.

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