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My appointment with Dr. Raval

I got to Saint Paul's at 11:30 and it went well with Dr Raval.
We talked then he put me to sleep and i woke up and it was over.
Dr Raval will talk with Dr B and then we will take it from their.
He told me if i need i could return to Fast Track and they will help.
But for now i have to rest and try to eat.
I was Green when i got home and i fill sick to my tummy.
I will rest and post links on telestations.com/Wordpress
I have 1 more week of rest before i can finish Japan TV.
But i am allowed to post links as i rest.
I need to do stuff or i just fill more sick.
I tried to visit some friends but that only lasted a few min.
I ran out and got sick in the back alley and made my way home.
I dont like sick and i dont like food right now.
That would make me so sick.
A few days with no food will be good for me.
Not like i cant go without.
I'm just pleased it went well with Dr. Raval."

"Submitted by metroman vasil on Sat, 01/14/2012 - 00:28
My appointment with Dr. Raval | Telestations

My appointment with Dr. Raval

I got to Saint Paul's at 11:30 and it went well with Dr Raval.
We talked then he put me to sleep and i woke up and it was over.
Dr Raval will talk with Dr B and then we will take it from their.
He told me if i need i could return to Fast Track and they will help.
But for now i have to rest and try to eat.
I was Green when i got home and i fill sick to my tummy.
I will rest and post links on telestations.com/Wordpress
I have 1 more week of rest before i can finish Japan TV.
But i am allowed to post links as i rest.

It happened again Yesterday at Saint Paul’s

Broadway. I was so like walking on a cloud when i went home from Saint Paul's last night, As i was walking down Burrard everything was like melting and the people were like zooming past me and i could see flairs of colours coming out of them and i was so supper McSick.
It went well at Saint Paul's and the Dr pushed it in.
This time they did Not give me Propofol, They gave me a see trough liquid and that knocked me out and then it happened.
I was standing in Fast Track and i was looking around and i could see sparkles, Red, Green, Yellow, Gray and other colors in the room. I was running my hand through them and i their was this mass of collars spinning from my tummy towards a curtain and persons were talking behind the curtain and then it opened and they went running out with a person on a stretcher out the door and down the hallway. I could see the swirling lights coming from my tummy following them and i started to follow i herd my name called and when i turned she was standing their, But i turned so i could follow the light that was coming from my tummy and going down the hall and i started to follow she called my name again. I turned and looked at her and she was bright with a spiral of collars spinning around her and she smiled and told me she was pleased to see me and that i should not be scared, That she wanted to show me things and she took my hand. It was so odd. I was standing in my friends Restaurant and i could see Bounty talking and he had this odd look on his Face and he looked at me and Said Metro but when i tried to talk to him he ignored me then she told me she reserved a place for him and his Friends and i asked her what place and she told me a very special place that because of what he did for a her Child then she started to cry and told me her Child was going to Die soon. She took my hand and smiled and i was standing at Martins and i could Martin and his Mom and as She was speaking to me I was trying to talk to Martin and Ignored me so i waled to wards Lucy and She smiled at me and i tried to talk to her but she walked Away and i started crying and the Lady took my hand and told me everything would be fine and as i turned i could see my Dad, He was watching TV and i tried to run to him, I miss him so very much but she held my hand and put her hand on my face and she told me she wanted to show me a very Special person and person who is spoken and respected by all. She told me this person she held close to her hart and as she was talking to me i could heir children playing and as i turned i saw Lalya and i tried to run to her but she would not let go, I wanted to tell her how sorry i was for the way i acted in her office but she would not let go of me. Then we were standing in space and i could see objects flying around and i could see planets just like in the other dream and started to talk to me and we were standing in a room, Her room and she had a ball in the middle of her room and she told me it was the Universe and it was hers to do with as she please. Then she pointed to a wall that looked like a cloud and their was movies playing and she started to explain what i was watching and she told me that her son knows the times and dates of everything i was watching on the wall and because of this he will Die soon Then we were standing in Fast Track and she pointed to a person on a bed and She told me it was not his time yet and only She decides when a persons time has come to pass. She asked me if i wanted to see what her Child look like. Their were persons around him and i could see they were in a panic and i could see one person rubbing his chest, They were pushing air into him and i could not see his face. As she was holding my hand She told me he was going to die that she knew when but could not tell me but told me he was going to Die, As she was crying she asked me to touch his foot so i did and when i did I could fill myself being sucked into this tunnel and i could see her and everything braking apart and i was odd, I could heir persons talking but i was like in this maze of Colors and it felt like i was on a elevator then i woke up from this dream with the Staff at Fast Track standing in the room.
It was so odd to have a dream of My Mom, Dad, Sisters, Brothers, Friends and other persons i dont know.
The whole Dream was just so odd.
Today i need to rest and recover from yesterday.
I might go for a short walk and start work on Telestations.com

Vasil v Mongovius

Knowing What We Know Now, We Would Not Of Hired Clea Parfitt and We DON’T Recommend Her

THE GOVERMENT IN CANADA DID NOTHING TO HELP METROMAN RECOVER HIS LOST WAGES Or PENSION

Date Issued: March 23, 2009

 

File: 4678

 

 

Indexed as: Vasil v. Mongovius and another (No. 3), 2009 BCHRT 117

 

IN THE MATTER OF THE HUMAN RIGHTS CODE

R.S.B.C. 1996, c. 210 (as amended)

 

AND IN THE MATTER of a complaint before

the British Columbia Human Rights Tribunal

 

B E T W E E N:

 

Martin Vasil

COMPLAINANT

A N D:

 

 

528716 BC Ltd. and Rawn Mongovius

 

 

RESPONDENTS

 

 

REASONS FOR DECISION

 

 

Tribunal Member:

Tonie Beharrell

Counsel for the Complainant:

Clea Parfitt

Counsel for the Respondent:

Articled Students Kate Gower (in part),
Andrew Aguilar (in part), and Katrina
Bidulock (in part), and Stephen Perks

Hearing Dates:

April 14-18, May 5-9, 12-13,

22-23 and 26-28, 2008

 

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TABLE OF CONTENTS

I Introduction………………………………………………………………………………………………………………………..4
II Positions of the Parties…………………………………………………………………………………………………………4
III Organization of the Decision…………………………………………………………………………………………………5
IV Witnesses…………………………………………………………………………………………………………………………….5
V Evidence……………………………………………………………………………………………………………………………..6
A. Background Facts………………………………………………………………………………………………….7
1. Mr. Mongovius and the Company…………………………………………………………………7
2. Mr. Vasil……………………………………………………………………………………………………..8
3. Nature of Work Performed by Mr. Vasil for the Respondents………………………..9
B. Mr. Vasil’s Periods of Employment with the Respondents……………………………………….11
1. The Unpaid Period……………………………………………………………………………………..12
2. Early Period……………………………………………………………………………………………….14
a. When did Mr. Vasil Start Being Paid?………………………………………………………..14
b. What were Mr. Vasil’s Hours of Work?………………………………………………………16
Mr. Vasil’s Evidence……………………………………………………………………………………….16
Mr. Mongovius’ Evidence………………………………………………………………………………..17
Documentary Evidence……………………………………………………………………………………17
c. What was the Rate of Pay and how was Mr. Vasil Paid?……………………………….19
d. End of the Early Period…………………………………………………………………………….21
Mr. Vasil’s Evidence……………………………………………………………………………………….22
Mr. Mongovius’ Evidence………………………………………………………………………………..22
3. Disputed Period………………………………………………………………………………………….22
a. Mr. Vasil’s Evidence………………………………………………………………………………..23
b. Mr. Mongovius’ Evidence…………………………………………………………………………23
c. Mr. Kassam’s Evidence…………………………………………………………………………….24
d. Documentary Evidence……………………………………………………………………………..25
Mr. Kassam’s Pay Records………………………………………………………………………………25
Entries in Mr. Mongovius’ Daytimer…………………………………………………………………26
History Report………………………………………………………………………………………………..28
e. Findings of Fact with Respect to the Disputed Period…………………………………..29
Reason for Resignation……………………………………………………………………………………29
Period of Time for Which Mr. Vasil was Away From Work…………………………………30
Terms of Mr. Vasil’s Employment: 2002………………………………………………………….32
4. Victoria Period…………………………………………………………………………………………..33
5. Later Period……………………………………………………………………………………………….33
a. Start of the Later Period……………………………………………………………………………33
b. Terms and Conditions of Mr. Vasil’s Employment………………………………………..35
What was the Rate of Pay?……………………………………………………………………………….35
What Hours and Days did Mr. Vasil Work?……………………………………………………….39
c. Changes in March 2004…………………………………………………………………………….43
What Hours and Days did Mr. Vasil Work?……………………………………………………….46
What was the Rate of Pay………………………………………………………………………………..47
d. Spring 2005 to December 2006………………………………………………………………….49
Trip to Slovakia………………………………………………………………………………………………49
Aftermath of Slovakia Experience…………………………………………………………………….50
What Hours and Days did Mr. Vasil Work During this Period?…………………………….56
e. January to March 2006…………………………………………………………………………….58
Remuneration…………………………………………………………………………………………………58
What Hours and Days did Mr. Vasil Work?……………………………………………………….60
Relationship between the Parties……………………………………………………………………….61
Hiring of other Employees……………………………………………………………………………….62
6. Termination of Employment……………………………………………………………………….62
7. Aftermath of the Termination……………………………………………………………………..67
C. Credibility Assessments……………………………………………………………………………………….70
D. Summary of Findings of Fact………………………………………………………………………………..72
VI Analysis and decision…………………………………………………………………………………………………………74
A. Prima Facie Case…………………………………………………………………………………………………76
B. Bona Fide Occupational Requirement……………………………………………………………………81
1. Terms and Conditions of Employment………………………………………………………..82
2. Termination of Employment……………………………………………………………………….83
3. Bona Fide Occupational Requirement: Conclusions…………………………………….84
C. Remedies…………………………………………………………………………………………………………..85
1. Mandatory Order……………………………………………………………………………………….86
2. Wage Loss………………………………………………………………………………………………….86
a. Pre-2003…………………………………………………………………………………………………86
b. June 2003……………………………………………………………………………………………….88
c. July 2003 to February 2004………………………………………………………………………88
d. March 2004 to mid-April 2005…………………………………………………………………..89
e. Mid-April to mid-May 2005……………………………………………………………………….90
f. Mid-May to December 2005……………………………………………………………………….90
g. January to March 2006…………………………………………………………………………….91
h. Post Termination Wage Loss……………………………………………………………………..92
3. Set-off………………………………………………………………………………………………………..92
4. Injury to Dignity, Feelings and Self-Respect………………………………………………..93
5. Costs………………………………………………………………………………………………………….95
6. Interest………………………………………………………………………………………………………96
7. Respondents’ arguments on the limitation of damages…………………………………97
VII Conclusion…………………………………………………………………………………………………………………….97

I INTRODUCTION
[1] Martin Vasil filed a complaint with the Tribunal alleging that the respondents,
528716 BC Ltd. dba Rawn’s Buy and Sell (the “Company”), and Rawn Mongovius,
discriminated against him with respect to his employment on the basis of race, ancestry
and mental disability contrary to s. 13 of the Human Rights Code.
[2] In Vasil v. Mongovius and another (No. 2), 2008 BCHRT 11, the Tribunal
dismissed the part of Mr. Vasil’s complaint which alleged discrimination on the basis of
race and ancestry. Thus, the issue which was before me at the hearing is whether Mr.
Vasil was discriminated against on the basis of mental disability.
II POSITIONS OF THE PARTIES
[3] Mr. Vasil has several severe mental disabilities, including, but not limited to,
anorexia, dyslexia, and Post Traumatic Stress Disorder (“PTSD”). There is also some
evidence that he is schizophrenic and has borderline personality disorder. As a result of
these disabilities, which will be discussed in more detail below, Mr. Vasil is classified as
a “Person with Disabilities” (“PWD”) and is in receipt of social assistance benefits from
the Ministry of Employment and Income Assistance (the “Ministry”).
[4] Mr. Vasil was employed by the respondents, although the precise periods of his
employment is a matter of dispute between the parties. Mr. Vasil was paid at different
rates during different periods in that employment, and there is also a dispute over what
these pay arrangements were. In any event, Mr. Vasil alleges that he was not paid
appropriately throughout his employment.
[5] In particular, Mr. Vasil alleges that, in early 2002, Mr. Mongovius promised him a
salary of $2,500 per month. Specifically, Mr. Mongovius would pay him small amounts
of cash at the end of each day, and the remainder of his wages would be sent to the
Ministry for administration. In fact, the cash that Mr. Vasil received at the end of each
day was the only payment he received.
[6] Mr. Vasil’s employment was terminated on March 14, 2006. The circumstances
surrounding his termination are also a matter of dispute.
[7] Mr. Vasil alleges that the manner in which the respondents paid his wages, the
amounts that they paid him, and their decision to terminate his employment, were
discriminatory. The respondents have a very different perspective. On their evidence,
Mr. Vasil was at all times paid at the rate he requested. Further, his employment was
terminated because of an incident at work, was fully justified, and was not
discriminatory.
III ORGANIZATION OF THE DECISION
[8] The parties presented a significant amount of evidence, both oral and
documentary, over the seventeen days of hearing. Below, I describe the witnesses who
appeared before me, and outline the evidence that was presented. While the nature of the
case has required that I set out the evidence at length, I have not reproduced all of the
evidence of every witness, but only the evidence on which I rely in coming to my
conclusions.
[9] For the most part, I make my findings of fact within my review of the evidence.
In addition, and for the purposes of clarity, I provide a summary of those findings.
[10] Having found the facts, I provide my analysis of the legal issues raised by this
complaint. In doing so, I set out the legal framework for determining whether Mr. Vasil
has proven discrimination, and determine if Mr. Vasil has established that the
respondents discriminated against him on the basis of physical and mental disability with
respect to his employment. For the reasons given in that part of the decision, I conclude
that Mr. Vasil has established his complaint of discrimination.
[11] Finally, I determine what remedies should be ordered to remedy the
discrimination established.
IV WITNESSES
[12] Mr. Vasil testified on this own behalf. In addition, he called the following
witnesses:
a) Ruth Johnson, an Employment and Assistance worker (“EAW”) with the
Ministry. Ms. Johnson has known Mr. Vasil since April 2003, and has been
assigned as his EAW from September 2007 onward. She, and other EAWs, are
responsible for assessing eligibility for benefits, and assisting clients with issues
that arise. Each Ministry client has a running computerized record, known as a
History Report, which describes the contact they have with the Ministry. The
EAW who has the contact with the client writes a description of the interaction.
Ms. Johnson identified Mr. Vasil’s History Report, which was relied on by both
parties in this proceeding.
b) Claudia Vasil, Mr. Vasil’s sister. Ms. Vasil testified about her knowledge of Mr.
Vasil’s work with Mr. Mongovius, and her interactions with Mr. Vasil and Mr.
Mongovius.
c) Marcel Vandebeek, the administrator and financial officer of the Compassion
Club, an alternative health care organization which provided assistance to Mr.
Vasil. The Compassion Club dispenses medical marijuana, and provides holistic
counselling, nutrition services, and other services. Mr. Vandebeek testified that
he developed a relationship with Mr. Vasil over a number of years, eventually
becoming almost a counsellor to him. He testified about his interactions with Mr.
Vasil, especially with respect to his financial and employment situation.

[13] Mr. Mongovius, the owner of the Company, testified on behalf of the respondents,
as did the following:
a) Jeff James, Mr. Mongovius’ brother-in-law, who was working at the shop on the day
Mr. Vasil’s employment ended;
b) Deborah Burrows, the Company’s bookkeeper. Ms. Burrows provides bookkeeping
services for a number of companies, and has done work for Mr. Mongovius for
approximately 15 years; both with respect to the Company and, before that, with
respect to a previous business owned by him;
c) Linda Fuchs, an EAW with the Ministry who served as Mr. Vasil’s EAW (and
primary contact) from December 2003 to the Summer of 2006. She testified that as at
January 2004, Mr. Vasil was receiving a $461.42 support payment, a $325 shelter
allotment, and a $165 dietary supplement;
d) Naser Kassam, who worked for the respondents for a period of time doing tasks
similar to those performed by Mr. Vasil; and
e) Jeremy Matthew, a long-time customer of the respondents, who testified about his
interactions with Mr. Vasil.

V EVIDENCE
[14] Below, I will provide some background information about both Mr. Vasil and the
respondents. I will then discuss how the relationship between Mr. Vasil and Mr.
Mongovius started, and how it developed. This includes a discussion of the various
periods of Mr. Vasil’s employment, the hours that he worked during those periods, and
the manner in which he was paid. It also includes a discussion of relevant events taking
place in Mr. Vasil’s life at the times in question.
[15] I will then discuss the circumstances of the termination of Mr. Vasil’s
employment, and its aftermath.
A. Background Facts
1. Mr. Mongovius and the Company
[16] Mr. Mongovius is the owner of the Company, and has operated it from its present
location in Burnaby since the late 1990s. He described the business as having two basic
components.
[17] First, the Company is involved in recycling computers, electronics, and small
household appliances. This consists of removing parts of value from the items, and
disposing of the remainder. Mr. Mongovius testified that, in an average week, about 1/3
of his time could be attributed to “recycles”.
[18] Second, the larger part of the Company’s business involves buying and selling
second hand electronic goods: for example, freight damaged inventory, and customer
returns. This involves bidding on lots of items from retailers such as Best Buy/Future
Shop, or purchasing items from wholesalers or scrap yards. The items are then repaired
and resold, either to auction houses or individual customers.
[19] Mr. Mongovius testified that, with respect to freight damaged inventory, the
companies that he buys from distribute lists of the goods they are selling, and potential
purchasers bid on them. The items go to the successful bidder. In general, the Company
receives large deliveries from Best Buy and Future Shop approximately four to five times
per year. The amount of inventory received each time varies from four to up to 100
pallets (a pallet is usually 4×5 feet, and can be stacked up to 4 to 4.5 feet high).
Similarly, the number of items on each pallet also varies. A projector TV can take up a
whole pallet, but if smaller items are involved (digital cameras, books, software, MP3
players), there can be between 50-100 items on a pallet. Mr. Mongovius testified that the
volume of these shipments started increasing in 2002.
[20] Once the pallets arrive, they need to be broken down and put away in the shop.
Not all of the items on any given pallet are useful, and these are simply disposed of. Mr.
Mongovius resells the useable items, either with or without repairs.
[21] Mr. Mongovius testified that the bulk of his selling was to auction houses and to
customers who have their own businesses. He testified that there was very little walk-in
traffic, and that this was his preference. He noted that he had specifically chosen a
location that was not on a busy street to avoid walk-in customers.
[22] Mr. Mongovius testified about the hours the shop was open. He stated that, in
general, the shop would be open from 9:30 to 5:30 Monday to Friday, and 9:30 to 1:30 on
Saturday. In the summer, Mr. Mongovius would sometimes not open the shop on
Saturday. He testified that the times were not rigid; on some days, he would leave early.
In addition, he generally takes 2 weeks off at Christmas, one week over the spring break,
and two to three weeks over the summer. When Mr. Mongovius took time off, the shop
would be closed.
2. Mr. Vasil
[23] Mr. Vasil suffers from a number of disabilities, and in particular has a long history
of mental illness. He suffers from anorexia, dyslexia, depression, anxiety disorder and
PTSD. He often has an adverse reaction to dealing with men, and with the police,
becoming very agitated. There was some evidence that he suffers from borderline
personality disorder and is schizophrenic. He hears and responds to voices in his head.
[24] Mr. Vasil testified that his disabilities affect his ability to deal with conflict and
stress, and can result in unusual and demonstrative conduct when he is frustrated or upset.
Mr. Vasil is impulsive and can be triggered by specific events. When triggered, he can
act out with verbally abusive language and accusations, or become withdrawn and
unresponsive.
[25] With respect to his dyslexia, Mr. Vasil can read printed text and type, but has
difficulty counting and with numbers and record keeping. His disabilities significantly
impact his ability to create written and numerical records, to manage his day to day
affairs, to handle cash and to fully understand more complicated financial arrangements.
Mr. Vasil is not able to independently manage his financial affairs, and becomes highly
anxious about dealing with such responsibilities.
[26] As a result of the combination of his disabilities, Mr. Vasil has been classified as a
PWD, and has been in receipt of social assistance disability benefits from the Ministry for
many years. In addition, Mr. Vasil received assistance from his EAWs and others in
managing his finances. Both Ms. Johnson and Ms. Fuchs testified that Mr. Vasil has very
little conception of money and required significant support in this regard.
[27] Despite his disabilities, Mr. Vasil has been employed intermittently over the
years. Before he met Mr. Mongovius, Mr. Vasil was employed for a number of years in
the construction industry. After an incident involving a co-worker, Mr. Vasil stopped
work in that industry and began retrieving electronic equipment from dumpsters and
selling it. This is how he met Mr. Mongovius. He went into his shop looking to sell some
of the equipment he had found.
3. Nature of Work Performed by Mr. Vasil for the Respondents
[28] There was broad general agreement with respect to the work performed by Mr.
Vasil for Mr. Mongovius, including the following:
a) Unloading of shipments that came in from Best Buy and other locations. The
shipments could be quite large, with many pallets of electronic equipment. Mr.
Mongovius would let Mr. Vasil know what was coming in, and Mr. Vasil would
prepare the warehouse to make room for the shipment. Mr. Vasil (sometimes
together with Mr. Mongovius) would unload the pallets, and distribute the
equipment to the appropriate locations in the shop.
b) Testing and repairing televisions, gaming systems, MP3 players, iPods, computer
monitors and notebook computers (for part of his employment).
c) Together with Mr. Mongovius, preparing equipment for auction. This involved
assessing which equipment would go to auction, as opposed to being sold in the
shop or recycled, pulling the Best Buy labels off of that equipment (which was a
requirement of the Best Buy contract), and loading the material into a van so that
it could be sent to auction; and
d) Dealing with recyclables. If someone came to the shop with an old computer or
other electronic item for recycling, Mr. Vasil would let them into the warehouse,
take the item, and deal with it appropriately (determining whether it was a
collectable, whether there were any components of value, or whether it should go
to a recycling firm). For example, when a desktop computer came in, Mr. Vasil
would strip down the computer, taking out the memory chip and the CPU. He

Â
would also assist Mr. Mongovius in shipping items to a recycling company, when
sufficient recyclables had accumulated.

[29] Mr. Mongovius and Mr. Vasil both testified that, for much of their relationship,
they liked and trusted each other. Mr. Mongovius gave Mr. Vasil keys to the shop, as
well as the security code. Mr. Vasil in particular agreed that his relationship with Mr.
Mongovius was unusual for him, as he didn’t generally like men.
[30] Mr. Mongovius testified that, while he was not initially aware of the extent of Mr.
Vasil’s disabilities, over time it became clear to him that Mr. Vasil suffered from
significant mental disabilities. He was aware that Mr. Vasil required additional
assistance with his finances because of his disability. He also agreed that Mr. Vasil
would get anxious, fearful or agitated in situations where others would not, and that he
lacked social skills that others might have. Finally, he noted that Mr. Vasil had a
pronounced aversion to men, and that, as a result, he provided Mr. Vasil with a work
space that was upstairs, away from the main shop.
[31] While Mr. Mongovius agreed that Mr. Vasil had significant mental disabilities,
there was a dispute between the parties about the extent of those disabilities, and the
manner in which they impacted his ability to work and function.
[32] In particular, there was a dispute about the extent to which Mr. Vasil had
difficulty with respect to numbers, counting and record keeping. Mr. Mongovius testified
that he could ask Mr. Vasil how many printers were on a particular pallet, or to read serial
numbers, and that he was capable of doing this. He also disputed Mr. Vasil’s testimony
about his ability to understand and deal with money.
[33] In this regard, Mr. Vasil testified that he identified currency by its colour, rather
than by the number on it. He testified that, on some occasions when Mr. Mongovius left
the shop to run errands, and a customer came in to buy items, Mr. Vasil would call Mr.
Mongovius. He would tell Mr. Mongovius what was being purchased, and give a
description to Mr. Mongovius of the money that he was provided with (the colour of the
bill and the number of each type of bill).
[34] In his testimony, Mr. Mongovius said that he did not generally leave the shop
open if he left the shop while Mr. Vasil was there. When he did, Mr. Vasil would deal
with the situation and leave Mr. Mongovius a note to let him know the amount of money
that had come in. Mr. Mongovius specifically denied that Mr. Vasil identified money by
colour.
[35] There was also a dispute between the parties with respect to how much repair
work Mr. Vasil did at home. This dispute will be addressed in more detail below.
[36] In addition to the nature of the work performed by the respondents, and by Mr.
Vasil for the respondents, there was also evidence about the working relationship
between Mr. Vasil and Mr. Mongovius.
[37] In this regard, Mr. Mongovius testified that the working relationship between him
and Mr. Vasil was not a standard one. Mr. Vasil had the freedom to do what he wanted.
If a truck was coming in, Mr. Mongovius and Mr. Vasil would work together to unload it,
but otherwise Mr. Vasil had the freedom to choose what he wanted to do: the items that
he wanted to work on, the types of repairs that he wanted to make, and the like. Mr.
Vasil agreed that he had the flexibility to do the work that he wanted at the shop, as long
as it was financially productive.
[38] Mr. Mongovius testified that Mr. Vasil was, in some regards, a very good worker
and an asset. He loved the work he was doing and was passionate about it. However, in
other regards he was a liability. While he was very helpful, he required a lot of attention
and could be a bit of a distraction. He would sometimes start a project and not complete
it. He distrusted people in general, and so was not good with customers.
[39] Mr. Mongovius also testified that the relationship was extremely flexible with
respect to hours of work. If Mr. Vasil felt unwell, he could leave work early or take time
off. Mr. Vasil agreed that there were times when he would leave work early when he was
not feeling well, although the parties disagreed over how often this happened.
B. Mr. Vasil’s Periods of Employment with the Respondents
[40] The parties disagree on many of the particulars of Mr. Vasil’s employment:
including when he started working for Mr. Mongovius, when he started being paid, how
much he was paid, and how many hours he worked.
[41] The parties agree that there were different periods during which Mr. Vasil was
employed by the respondents, although they do not agree about their precise parameters.
[42] There was an initial period during which Mr. Vasil performed work for the
respondents, but was not paid. I will refer to this period as the “Unpaid Period”. There
was then a period when Mr. Vasil was paid by the respondents for his work. This period
commenced some time in 2000, and continued until July 2001 (the “Early Period”).
[43] The parties agree that Mr. Vasil resigned his employment in July 2001. Mr. Vasil
testified that he started working for the respondents again in late 2001 or early 2002. Mr.
Mongovius denies this, and testified that Mr. Vasil did not start working for the
respondents again until May or June 2003. I will refer to this period as the “Disputed
Period”.
[44] Mr. Vasil was in Victoria obtaining treatment for his eating disorder between July
2002 and April 2003 (the “Victoria Period”). He remained in contact with Mr.
Mongovius, returned to Vancouver regularly, and would often come to the shop during
these visits.
[45] Mr. Vasil returned to more consistent work with the respondents in late May or
early June of 2003. He continued to work for Mr. Mongovius until his termination in
March 2006. I will refer to this period as the “Later Period”.
[46] I will review the evidence of the parties with respect to these various periods of
employment in more detail below.
1. The Unpaid Period
[47] Mr. Vasil testified that he initially came into Mr. Mongovius’ shop to sell some
electronic items he had salvaged from dumpsters. Mr. Mongovius testified that Mr. Vasil
first came into the shop with a friend who was looking to purchase computer items.
Nothing turns on this difference. The parties agree that Mr. Vasil had an interest in
computers, and came back a couple of times after the initial visit. Mr. Mongovius
testified that he started showing Mr. Vasil the type of work that he performed at the shop.
[48] The parties agree that there was a period of time during which Mr. Vasil was
working for Mr. Mongovius without pay. They differ in their understanding of the nature
and timing of those arrangements. Specifically, Mr. Mongovius testified that Mr. Vasil
was learning how to perform the work and was volunteering his services, while Mr. Vasil
testified that Mr. Mongovius told him that it was an unpaid apprenticeship.
[49] In particular, Mr. Mongovius testified that, during the Unpaid Period, he showed
Mr. Vasil what he knew about how computers operate and how they are repaired. Mr.
Vasil had a real aptitude for electronic things, and was a quick study, often figuring
things out for himself. Mr. Mongovius’ evidence in this regard was corroborated by Mr.
Vasil’s sister, Claudia Vasil, and Mr. Vandebeek, both of whom testified that Mr. Vasil
had an intuitive ability with electronic items. Mr. Vandebeek, in particular, testified that
Mr. Vasil often assisted when the Compassion Club had computer problems, and that
although Mr. Vasil had no formal training, Mr. Vandebeek observed that he could do
things that well trained computer technicians could not do.
[50] Mr. Mongovius noted Mr. Vasil’s aptitude, and eagerness, and started asking Mr.
Vasil to do things for him, including both repairs and more general labour in the
warehouse. Mr. Mongovius testified that this happened infrequently at first (perhaps
once a week or twice a month), and then more frequently. Mr. Vasil began to work on
notebook computers, MP3 players, gaming systems, computer monitors and TVs. Mr.
Mongovius agreed that Mr. Vasil’s work during this period had value to him.
[51] Mr. Mongovius testified that he was not certain how long the Unpaid Period
lasted; it could have been one year, or it could have been less than a year. Mr.
Mongovius testified that, although Mr. Vasil was not formally paid during this period, he
would give Mr. Vasil money for lunch and cigarettes, and sometimes merchandise from
the shop. In general, Mr. Mongovius testified that, if there was something Mr. Vasil
wanted, he was generous and gave him things. Mr. Vasil didn’t ask for more money, and
Mr. Mongovius didn’t feel that he had to give him more.
[52] In contrast, Mr. Vasil testified that there was a period of about six months after his
initial meeting with Mr. Mongovius when he would go into the shop intermittently and do
some work; either repairs or labour. Mr. Mongovius appeared to be happy with Mr.
Vasil’s work, and asked him if he wanted to commence an apprenticeship in electronic
repairs. Mr. Vasil testified that his understanding of the relationship was that he was
supposed to learn about electronic repairs, and become certified, but that this never
happened.
[53] Mr. Vasil also testified that Mr. Mongovius told him that apprentices didn’t get
paid, and that he received no pay for over a year.
[54] Mr. Mongovius denied telling Mr. Vasil that this relationship was an
apprenticeship, or that he could become certified working with him. Mr. Mongovius
testified that “apprenticeship” was not a word he was familiar with, and that he would not
have used this word with Mr. Vasil.
[55] There was also a lack of clarity with respect to when the relationship started. Mr.
Mongovius did not have a clear recollection of any dates. Mr. Vasil testified that he
knew that his relationship with Mr. Mongovius started at the end of 1998 or the
beginning of 1999, because he recalls that he was living with his sister, in Burnaby, at the
time. Ms. Vasil also testified that Mr. Vasil’s relationship with Mr. Mongovius started
while he was living with her.
[56] Mr. Vasil testified that he had moved in 1999. The History Report confirms that
Mr. Vasil was living with his sister until May 1999, when he moved out on his own.
Thus, on the evidence before me, I am satisfied that the relationship between Mr. Vasil
and Mr. Mongovius started prior to May 1999.
2. Early Period
[57] In addition to the uncertainty over when Mr. Vasil started performing work for
Mr. Mongovius, there is also disagreement, and a lack of clarity, regarding when Mr.
Vasil started being paid for that work. In addition, there is a dispute between the parties
with respect to the hours Mr. Vasil worked during this period, and the amount that he was
paid.

a. When did Mr. Vasil Start Being Paid?

[58] Initially, Mr. Mongovius testified that Mr. Vasil started working for him for pay
in September 2000. Mr. Mongovius’ testimony in this regard was supported by the
respondents’ payroll records, which start in September 2000.
[59] Mr. Vasil was not specific with respect to when he started working for Mr.
Mongovius for pay. However, he testified that he knew he had started performing work
for Mr. Mongovius without pay prior to May 1999 (when he moved into his own place),
and that he had worked without pay for approximately a year. Given this testimony, Mr.
Vasil appeared to be saying that he would have started being paid in May 2000, at the
latest.
[60] As noted above, the payroll documents initially disclosed by the respondents
supported Mr. Mongovius’ testimony. However, a number of document disclosure issues
arose during Mr. Mongovius’ cross-examination, which resulted in the further disclosure
of a number of daytimers, and other documents. These documents included loose-leaf,
hand-written records prepared by Mr. Mongovius which provide a listing of hours for Mr.
Vasil and the amount of money paid to him on a daily basis between May and September
2000. Mr. Mongovius then agreed that his recollection that he had started paying Mr.
Vasil in September 2000 was based on the formal payroll records, and that the
handwritten documents indicated that he had been paying Mr. Vasil since May 2000.
This generally accorded with Mr. Vasil’s evidence.
[61] On all of the evidence before me, I find that Mr. Vasil started being paid in May
2000, at the latest.
[62] The employment relationship became more formal in September 2000. No one
testified about why this occurred. There is a September 8, 2000 notation in Mr. Vasil’s
History Report which states: “Ron at Buy and Sell Network, is doing odd jobs” and
listing the phone number. The entry was made by an EAW who did not testify, and is
followed up by the following:
Client has been working for Ron. PRT [participant] is very anxious about
getting a pay chq because he doesn’t want his benefits deducted. Advised
Ron to have Martin speak to me and I will explain earning exemptions etc.

[63] Mr. Vasil testified that he had a discussion with his EAW about this issue. She
explained the earnings exemption, and that amounts earned over the exemption would be
deducted. She told him that, if he earned over the exemption amount, that amount would
be deducted from his next cheque. She told him that he could be thrown off social
assistance if he did not declare his income.

b. What were Mr. Vasil’s Hours of Work?

[64] There was a substantial dispute between the parties over the days and hours which
Mr. Vasil worked during the Early Period. The evidence with respect to these
arrangements came in the form of Mr. Vasil’s and Mr. Mongovius’ oral testimony, the
handwritten documents provided by Mr. Mongovius during his cross-examination, and
the formal pay documents prepared by Ms. Burrows. I will review each of these in turn.

Mr. Vasil’s Evidence

[65] Mr. Vasil testified that he started work before 10:00 a.m., and ended work
between 4:30 and 5:30 p.m. each day. He testified that he initially worked four days a
week: Monday, Wednesday, Thursday and Friday, and that by January 2001, he had
started working a half day on Saturday as well. He testified that he did not usually work
on Tuesdays because he had a medical appointment on that day.
[66] Mr. Vasil testified that, in addition to his work at the shop, he worked at home.
This started occurring relatively consistently in early 2001. He also testified, however,
that there was a period of time, during the 2001 transit strike, when he did not take work
home, because he had to commute on rollerblades and that it was too heavy to also carry
equipment home. The transit strike lasted from April to July 2001. Mr. Vasil testified
that, on one occasion during this period, Mr. Mongovius brought approximately 50 X-
Boxes to his house, and picked them up after Mr. Vasil had completed the repairs on
them.
[67] Mr. Vasil also testified that the amount of time he spent working at home
depended on whether the shop had received a delivery of materials. When there were
new shipments, he would work at home several nights a week, for up to ten additional
hours per week. He testified that Mr. Mongovius knew that he was taking work home
with him, and would be pleased when Mr. Vasil brought in something repaired the
following day. In addition, if the item was large, Mr. Mongovius would sometimes give
him a ride home with it.
Mr. Mongovius’ Evidence

[68] Mr. Mongovius did not have any independent recollection of the hours Mr. Vasil
worked during the Early Period. He relied on the hours shown on the formal pay
documents.
[69] In addition, Mr. Mongovius testified that he never specifically sent Mr. Vasil
home with work; rather, Mr. Vasil liked to take things home. Mr. Mongovius said it kept
Mr. Vasil busy and was like therapy. Mr. Mongovius agreed that on one occasion he
received a shipment of X-Boxes. Mr. Vasil wanted to work on them, and so Mr.
Mongovius put them in his van and drove him home with them. However, Mr.
Mongovius testified that he did not intend to pay Mr. Vasil for this work.
[70] Similarly, Mr. Mongovius testified in cross-examination that there were times
when he would give Mr. Vasil a ride home, and Mr. Vasil would bring things with him to
work on. Mr. Mongovius stated that he didn’t really keep track of what Mr. Vasil took
home. Mr. Vasil liked to keep busy, and perhaps please Mr. Mongovius, but there was no
expectation that he would be paid for such work. Mr. Mongovius testified that he had no
idea of the hours Mr. Vasil may have spent at home working on items. He was not
monitoring what Mr. Vasil was doing at home, and never agreed to pay for repairs done
at home.

Documentary Evidence

[71] As noted above, there are formal pay records for the period from September 2000
to July 2001. While these records provide some indication of Mr. Vasil’s hours of work,
Mr. Vasil testified that he worked significantly more hours than those listed. There was
some independent support for Mr. Vasil’s assertion in this regard.
[72] I refer in particular to the handwritten records produced by Mr. Mongovius during
his cross-examination. These records relate to the period between May and September
2000. For the one month period of overlap between these records and the formal pay
records, the documents are inconsistent. Specifically, Mr. Mongovius’ handwritten
records indicate that Mr. Vasil worked significantly more hours than he was given credit
for on the formal payroll documents.
[73] The handwritten document records the following hours. For May, only half a
month is recorded, and Mr. Vasil worked 68 hours. For June, he worked 150 hours. For
July, he worked 97.5 hours. For August, some of the records are missing, and only
August 1–9 and 25-31 are recorded. During this period of time, Mr. Mongovius recorded
that Mr. Vasil worked 54 hours.
[74] For September 2000, both the handwritten record and the formal pay documents
are available. The formal document records far fewer hours than the handwritten record.
Specifically, the pay document indicates that Mr. Vasil worked 40 hours, while the
handwritten record indicates that he worked 97.45 hours. There were two additional days
where it was noted that Mr. Vasil worked but his hours of work were not recorded.
[75] Similarly, although the payment advice form for this period records that Mr. Vasil
was paid $401.17, the handwritten records indicate that Mr. Vasil was paid $755.00. It
also appears that Mr. Vasil was purchasing things from the store and that Mr. Mongovius
was deducting money from his wages to take account of these purchases.
[76] The handwritten records end on October 2, 2000, and the only record of Mr.
Vasil’s hours after that date are the formal pay records. Each month, Ms. Burrows
prepared a payment advice form, which indicated Mr. Vasil’s hours of work, and the
gross and net amount of his pay. The paystubs indicate that Mr. Vasil worked the
following hours from October 2000 to June 2001:
a) October 2000: 83 hours
b) November 2000: 63 hours
c) December 2000: 63 hours
d) January 2001: 73 hours
e) February 2001: 55 hours
f) March 2001: 60 hours
g) April 2001: 73 hours
h) May 2001: 53 hours
i) June 2001: 36 hours

[77] Mr. Vasil asserts that he worked more hours than were recorded in the paystubs.
He testified that he did not dispute the hours worked at the time because he was not aware
of what was on the forms. They would be provided to him in an envelope, and he would
take them to social services. He did not review the forms himself, he assumed that he
was being paid correctly.
[78] It is clear that the hours documented on the paystubs are significantly lower than
those documented for previous months in Mr. Mongovius’ handwritten notes. I note that
there was no oral evidence before me which would indicate that Mr. Vasil’s hours of
work decreased in any notable way after September 2000. Given Mr. Vasil’s testimony,
as corroborated by the handwritten records provided by Mr. Mongovius, and in particular
the discrepancy between the September records, I find that the paystubs disclosed by the
respondents significantly under represent the number of hours worked by Mr. Vasil.
[79] On all of the evidence before me, I accept Mr. Vasil’s testimony that he worked
between six and seven hours a day, four days a week; and that by January 2001 he was
also working an additional half day on Saturday. This amounts to roughly 112 hours per
month prior to January 2001, and 128 hours per month thereafter.
[80] Further, given Mr. Vasil’s and Mr. Mongovius’ testimony, I accept that Mr. Vasil
was also performing work at home for the respondents. While Mr. Mongovius testified
that it was not his intention that Mr. Vasil be paid for this work, he did not testify that the
work did not have value to him. He agreed that on more than one occasion, he assisted
Mr. Vasil in taking work home from the shop.
[81] It is difficult to come to any conclusions about the amount of work Mr. Vasil
performed at home. He asserts that approximately five to ten hours a week would be a
fair estimate of the work he performed during this period. However, he also testified that
for at least a four month period (during the transit strike), he was doing less work at
home, because he was not able to transport the work, unless Mr. Mongovius gave him a
ride. On all of the information before me, I am prepared to conclude that Mr. Vasil
performed approximately ten hours additional work at home per month at home during
the Early Period. In my view this is a fair assessment of the work he performed.

c. What was the Rate of Pay and how was Mr. Vasil Paid?

[82] Mr. Vasil and Mr. Mongovius agree that Mr. Vasil was paid $10 per hour during
the Early Period. This rate is reflected in both the formal and handwritten pay records.
Mr. Vasil testified, however, that he was not, in fact, paid this amount. He states that the
respondents provided him with an envelope each month, and that he took the envelope to
the Ministry.
[83] As noted above, Ms. Burrows prepared pay documents for Mr. Vasil for each
month from September 2000 to July 2001. All of the parties agreed that the pay
documents were not cheque stubs. Rather, they were payment advice forms which listed
the amount that Mr. Vasil earned, and any deductions from those amounts. Thus, they do
not necessarily reflect what Mr. Vasil was paid for the periods in question.
[84] Nevertheless, the History Report indicates that Mr. Vasil reported the income as
recorded on the pay documents from September 2000 to July 2001.
[85] There are a few occasions during this period where Mr. Vasil was paid by cheque.
The documents indicate that Mr. Vasil was paid by cheque in October 2000 and May and
June 2001.
[86] As outlined above, Mr. Vasil testified that Mr. Mongovius would give him
envelopes, that he would take the envelopes to the Ministry, and that they would tell him
what to do with the contents. There are History Report entries which support Mr. Vasil’s
testimony.
[87] In addition, Ms. Burrows testified that there was a period in 2000 or 2001 when
Mr. Vasil’s cheques were being sent directly to the Ministry. There are also some
History Report entries which support Ms. Burrows’ evidence in this regard.
[88] Specifically, the January 2001 payment advice form indicates that Mr. Vasil
worked 73 hours at $10.00 per hour and earned a net amount of $725.40. Ms. Burrows
identified a payroll sheet which indicated that Mr. Vasil was paid this amount on cheque
336. No copy of such a cheque was provided by any party. However, a History Report
notation dated February 9, 2001, indicates that Mr. Vasil declared income of $725.40 and
states:
Left message for client to pick up pay chq in the amount of $725.40. He
should have Money Mart make out money order in the amount of $520.00
payable to [Mr. Vasil’s landlord].

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[89] There is also a February 14, 2001 notation that Mr. Vasil came in to pick up his
paycheque, and that he agreed to have a money order made out for his landlord.
[90] Thus, the evidence before me with respect to what Mr. Vasil was paid during this
period is not clear. There is some evidence that, from May to September 2000, Mr. Vasil
was being paid in cash. There is evidence that, for some periods after that date, Mr. Vasil
was being paid by cheque in the amounts listed on the formal paystubs. There is some
evidence that, in addition to these cheques, Mr. Vasil was also being paid some cash on a
daily basis. None of the parties kept reliable records of this period and there are inherent
weaknesses with the oral evidence given by the parties about events that occurred seven
to eight years prior to their testimony. On all of the information before me, I cannot find,
on a balance of probabilities, that Mr. Vasil was being paid inappropriately during this
time period, except as it relates to the work that he was performing at home, without pay.

d. End of the Early Period

[91] There is no dispute about when the Early Period ended. Mr. Vasil quit his
employment on July 9, 2001. At that time, he was paid the following amounts by cheque:
• $10.00 per hour for 29 hours of work between July 1 and 9, 2001; and
• $10.00 per hour for 15.75 hours as severance pay (two weeks of pay, taking into
account the average of his last two months pay).
[92] It appears that these cheques were also provided to the Ministry, possibly by the
respondents, as a July 25, 2001 notation in the History Report states:
Re 01Aug entitlement: clt has earns chq on hold in d/o [district office].
This chq can be released 2 clt; shelter chq to be mailed today. Balance of
clt’s entitlement was mailed @ issue.

[93] There is a dispute about why Mr. Vasil quit his employment at this time. In this
regard, Mr. Vasil testified that he resigned his employment because he was unsatisfied
with the amount of pay he was receiving. In contrast, Mr. Mongovius testified that Mr.
Vasil resigned his employment to travel to Victoria, where he received treatment for his
eating disorder. I will provide more detail about the evidence of each of the parties
below.
Mr. Vasil’s Evidence

[94] Mr. Vasil testified that he was unsatisfied with the amount of his pay, and told Mr.
Mongovius that the amount of money he was receiving did not compensate him for the
work he was doing. Mr. Vasil testified that this escalated to an argument, which
culminated in him quitting.

Mr. Mongovius’ Evidence

[95] Mr. Mongovius had a different recollection of the circumstances under which Mr.
Vasil quit his employment. He testified that Mr. Vasil wanted to go to Victoria for
treatment for his eating disorder. He just “up and left”. At the time he did so, he had not
expressed any concerns about his wages.
[96] An entry in Mr. Mongovius’ daytimer for July 9, 2001 states: “Martin walked out
today”. Mr. Mongovius was asked in cross-examination if this indicated there had been a
dispute between him and Mr. Vasil that day. Mr. Mongovius responded that he believed
so, and that the reason for the dispute was that Mr. Vasil wanted to go to Victoria to get
help with his eating disorder. It was not, he testified, a dispute about pay. He then
amended his previous testimony and stated that it was not a dispute at all. Mr.
Mongovius pointed to another entry on that date, which indicated that he had called
Mark, Mr. Vasil’s brother. He testified that he did so because he was concerned about
Mr. Vasil.
[97] I will make my findings of fact with respect to Mr. Vasil’s resignation below, in
conjunction with other findings of fact about the Disputed Period which followed.
3. Disputed Period
[98] As outlined above, Mr. Vasil and Mr. Mongovius had significantly different
recollections about when Mr. Vasil returned to work after he resigned his employment in
July 2001. In brief, Mr. Vasil testified that he returned to work after a relatively short
period of time (between four and six months), and that he continued to work until he left
to get treatment in Victoria in July 2002.
[99] In contrast, Mr. Mongovius testified that Mr. Vasil did not return to his
employment until after his return from Victoria in June 2003.
[100] I will outline the evidence of each of the parties below, as well as the
documentary evidence, and the testimony of Nasser Kassam, who replaced Mr. Vasil
during his absence.

a. Mr. Vasil’s Evidence

[101] Mr. Vasil testified that, some time after his resignation, Mr. Mongovius phoned
him and they arranged to meet at McDonalds. He stated that Mr. Mongovius apologized,
gave him some cash in an envelope and a remote controlled vehicle worth approximately
$500.
[102] Mr. Vasil testified that he and Mr. Mongovius discussed the terms on which he
would return to work. Mr. Mongovius suggested $15 per hour, but Mr. Vasil said that it
was not enough. Mr. Vasil suggested $2,500 per month based on the work he was doing
both at the shop and at home. Further, he proposed that he would get $300 of that
amount in cash each month, and that the remainder would be sent directly to the Ministry.
Mr. Vasil testified that Mr. Mongovius subsequently told him that he had checked with
Ms. Burrows to see if he could afford to pay Mr. Vasil at this rate, and that she had
advised that he could.
[103] Mr. Vasil testified that he returned to work shortly after this conversation, and that
his total time off work was approximately four months. He also testified, however, that
he did not recall if he returned to work before or after Christmas that year.

b. Mr. Mongovius’ Evidence

[104] Mr. Mongovius testified that Mr. Vasil “just up and left for Victoria” in July
2001. He stated that he was in a bit of a quandary as a result, as he was left without the
extra help that Mr. Vasil provided. He stated, however, that the situation was not as bad
as it could have been because the shop was slow at the time.
[105] Mr. Mongovius testified that, starting approximately three weeks after Mr. Vasil
left, Mr. Kassam would come and do work for him. Initially, this was quite irregular, but
it became more regular over time, although always part-time.
[106] Mr. Mongovius testified that he paid Mr. Kassam $10 per hour. He testified that,
once Mr. Kassam started to work more regularly, he worked approximately 30 hours a
week, and earned around $1,100 to $1,200 per month.
[107] Mr. Mongovius was firm in his recollection that Mr. Vasil had left for Victoria in
July 2001 to obtain treatment for his eating disorder, and that he had remained in Victoria
until April or May 2003. He stated that this recollection was based on when he had paid
Mr. Kassam, because he was sure that he had not paid them both, except for a very short
period of time in 2003.
[108] Mr. Mongovius testified that he and Mr. Vasil kept in contact during the Disputed
Period. Mr. Vasil would phone him occasionally to discuss the problems he was having
in Victoria, accommodation issues, how things were progressing with the treatment, and
things of that nature. Mr. Mongovius agreed that Mr. Vasil came into the store during
this period, although he was not sure how often.
[109] Mr. Mongovius first testified that Mr. Vasil did not do any work during this
period, although Mr. Mongovius would give him money for cigarettes and snacks. Mr.
Mongovius later stated that Mr. Vasil may have helped out if something needed to be
done during these visits, but Mr. Kassam was there, and Mr. Mongovius did not pay Mr.
Vasil for work done.

c. Mr. Kassam’s Evidence

[110] Mr. Kassam testified that he started working for Mr. Mongovius in approximately
August 2001. At the time, Mr. Mongovius was looking for staff, as he did not have any.
He testified that he started working on a part-time basis, and subsequently increased to
approximately 35 hours per week (five days a week, six to seven hours a day). He stated
that he worked there until June 2003. He was paid $10 per hour throughout his
employment.
[111] Mr. Kassam testified that, when he started working, Mr. Mongovius paid him in
cash at the end of each day. This continued for some period of time, which he described
as “more than a couple of months”. He testified that he was then paid by cheque every
two weeks. He testified that he could not recall when he started being paid by cheque,
but the cheques were all made out to his business: Dynette Computers.
[112] Mr. Kassam testified that his employment with the respondents ended around June
2003. He testified that before he left, Mr. Vasil returned to work for the respondents.
They worked together for a few weeks, and then Mr. Kassam started getting fewer hours.
He understood that Mr. Mongovius could not afford two people, so he left and devoted
more time to his own business.
[113] In cross-examination, Mr. Kassam was asked about periods of time when the shop
was closed. He testified that there was one time around Christmas/New Year that the
shop had been closed and he had not worked. He received holiday pay and had
approximately a two to three week break. He agreed that this was the Christmas holiday
in 2002/03. He also testified that the shop was closed for one week over the Easter break,
as well as a summer break. He agreed that his recollection was one Easter, and one
Christmas, and one summer break. However, he testified that it was difficult for him to
remember these specifics.

d. Documentary Evidence

[114] There were three broad types of documentary evidence before me. The first were
Mr. Kassam’s pay records; the second were entries in Mr. Mongovius’ daytimer relating
to both Mr. Kassam and Mr. Vasil; and the third was the Ministry’s History Report. I
review each below.

Mr. Kassam’s Pay Records

[115] Mr. Mongovius’ evidence about the respondents’ pay arrangements with Mr.
Kassam was somewhat unclear. He first testified that Mr. Kassam was paid by cheque
throughout his employment, and that these cheques were made out to Mr. Kassam’s
company, Dynette Computers. He also testified that he was not precisely sure of the pay
arrangements, but that Ms. Burrows would know.
[116] Ms. Burrows testified that Mr. Kassam worked for Mr. Mongovius as a
subcontractor until about June 2003. He was always paid by cheque to Dynette
Computers, and no deductions were taken from his pay. Ms. Burrows testified that Mr.
Kassam worked for the respondents for about a year and a half.
[117] The following cheques, made out by the respondents, were entered into evidence
before me:
a) A cheque for $340 to Mr. Kassam dated July 26, 2002. Mr. Mongovius testified
that this cheque “could be” for hours worked;
b) A cheque for $950.50, dated January 31, 2003, made out to Dynette Computers
with a notation at the bottom which stated “95.05 hours”. Mr. Mongovius agreed
that this was for wages, and that Mr. Kassam was being paid $10 per hour for the
work he did;
c) A cheque for $1,170, dated March 3, 2003, made out to Dynette Computers, with
a notation on the bottom stating “February 2003”;
d) A cheque for $1,275, dated March 31, 2003, made out to Dynette Computers,
which Mr. Mongovius agreed was Mr. Kassam’s pay;
e) A cheque for $1,197.50, dated May 1, 2003, made out to Dynette Computers, with
the notation “119 ¾ hours”; and
f) A cheque for $1,197.50, dated June 3, 2003, made out to Dynette Computers.

[118] Thus, there is a gap in the cheques paid to Mr. Kassam between July 2002, where
there was a cheque made out to him in his personal capacity, and January to June 2003,
where there were cheques made out to Dynette Computers for Mr. Kassam’s time.
[119] In cross-examination, it was put to Mr. Mongovius that Mr. Kassam may have
worked in July 2002 but then not again until January 2003. Mr. Mongovius denied this
suggestion and then stated that Mr. Kassam worked for him after Mr. Vasil left for
Victoria, and was paid in cash. He became more certain of the cash arrangement as his
testimony went on. Eventually he stated: “I do recall now that I did pay him cash when
he first started to work for me – every day or every other day. Before the first cheque in
January 2003 and after Mr. Vasil left – between July 2002 and January 2003”. He then
corrected his testimony and again stated that Mr. Vasil left in July 2001.

Entries in Mr. Mongovius’ Daytimer

[120] Entries from Mr. Mongovius’ daytimer indicate that he and Mr. Vasil were in
contact after Mr. Vasil quit in early July 2001. These entries start as early as July 18,
2001, and generally state either “Martin called” or “call Martin”. In many of these
instances, Mr. Mongovius has listed a number for Mr. Vasil that is clearly a local number,
not a Victoria number. There are two entries in July, two in August, two in September,
and one in October. An entry for September 17 states: “Martin called to say hi – call
him”.
[121] The next entries with respect to Mr. Vasil occur in 2002, with one in January, and
one in February.
[122] The number of references to Mr. Vasil then increases significantly in April 2002,
with 10 entries. Some of these entries say simply “call Martin”, or “Martin called”, while
some include references to pieces of equipment. For example, the entry on April 16
states, “Martin – take home MP3 & Palm3C, P11 PS2’s, 9:15”. Mr. Mongovius testified
that it looked like Mr. Vasil wanted an MP3 player and other items. He was asked if it
was possible that Mr. Vasil was taking these home to repair, and he agreed it was
possible.
[123] This pattern continues into May 2002, with seven references to Mr. Vasil. For
example, on May 2 there is a notation to “Call Martin, pick up P and PS/2s”. Mr.
Mongovius testified that this referred to Play Station and PS2s. This could have been for
Mr. Vasil to repair, or for his own use. Mr. Mongovius was asked in cross-examination
whether Mr. Vasil was doing work at this time. He answered that it was clear that he was
communicating with Mr. Vasil, and that it could have been about him doing work.
[124] In June 2002 there are twelve references to Mr. Vasil in Mr. Mongovius’
daytimer, including one on June 3 which indicated “Martin here this a.m.”
[125] It was put to Mr. Mongovius in cross-examination that the frequency of the
interaction between himself and Mr. Vasil during this period would indicate that Mr.
Vasil was in fact working for him. Mr. Mongovius disagreed and replied that it was
indicative of the friendship between them. He later testified that Mr. Vasil would call and
talk to him about his problems; he felt that he was a father figure to Mr. Vasil.
[126] There are several additional entries relating to Mr. Vasil in July 2002. Notably, in
each case where there was a number beside an entry for Mr. Vasil from August 2001 to
July 2002, that number is a local number, not a Victoria number.
[127] On August 6, 2002, there is a notation in the daytimer that Mr. Vasil had called,
with a Victoria number listed. Mr. Mongovius confirmed that this was the first instance
in his daytimer when there was a reference to Mr. Vasil and a Victoria number. He also
agreed that the timing was consistent with the Ministry’s records with respect to when
Mr. Vasil moved to Victoria.
[128] With respect to Mr. Kassam, the first notation relating to him is on September 10,
2001, stating, “Kassam here today”. Mr. Mongovius testified that this may have been the
first instance that Mr. Kassam came in to speak with him. There is a similar notation on
September 17, with the further notation: 4-5 hrs. There are references to Mr. Kassam,
without any hours, in October and November.
[129] There is one further reference to Mr. Kassam in March 2002, and then a few
references to him in July 2002. It was put to Mr. Mongovius that, given when Mr.
Kassam’s name appeared in the daytimer and the cheques produced, it is clear that he was
working for Mr. Mongovius in July 2002 but not before. Mr. Mongovius replied that he
had been working for him before, but had been paid in cash.
[130] Mr. Mongovius agreed in cross-examination that his daytimer was not a full or
accurate record of when Mr. Vasil was present. He agreed that Mr. Vasil could have
been at the shop, even if it was not noted in the daytimer. He noted that the same was
true of Mr. Kassam. Although he would sometimes make a note of these individuals
being present, he would not always, or even usually, do so.

History Report

[131] The History Report for the Disputed Period contains an entry dated July 12,
2001, which indicates that the Ministry worker called Mr. Vasil’s doctor and was advised
that Mr. Vasil would be going into an eating disorder clinic at St. Paul’s Hospital, but
probably not until September. There is also an entry on September 19, 2001, indicating
that Mr. Vasil called the Ministry stating that he wanted to buy new clothes for a medical
assessment on October 2.
[132] It would therefore appear, from the History Report, that Mr. Vasil’s physician was
making enquiries with respect to an eating disorder program as early as July 2001, around
the time he resigned his employment. Initially, at least, it was intended that Mr. Vasil
enter an eating disorder clinic in Vancouver.
[133] However, the History Report also indicates that Mr. Vasil did not move to
Victoria until July 2002. This is consistent with Mr. Vasil’s evidence, and with the
entries in Mr. Mongovius’ daytimer which list a Vancouver number for Mr. Vasil until
August 2002.
[134] With respect to employment, there is an entry on December 4, 2001 indicating
that Mr. Vasil reported that he had not worked since his “lay off” in the summer. The
entry states that Mr. Vasil was not well and had serious health and mental health
problems.
[135] There is no employment or pay information from August 2001 or at all in 2002.
In other words, Mr. Vasil did not declare any income to the Ministry during this period.

e. Findings of Fact with Respect to the Disputed Period

[136] It is clear from all of the evidence before me that Mr. Vasil remained in
Vancouver until July 2002.
[137] Thus, there are potentially three issues about which I am required to make
findings of fact with respect to the Disputed Period. First, Mr. Vasil’s reasons for
resigning his employment. Second, whether Mr. Vasil returned to work at any time after
his resignation and prior to leaving for Victoria? Third, if Mr. Vasil returned to work
prior to leaving for Victoria in August 2002, the terms and conditions of his employment
during this period.

Reason for Resignation

[138] As outlined above, Mr. Vasil alleges that he resigned his employment over a
dispute about how much he was being paid, while Mr. Mongovius recalls that he resigned
his employment because he was entering an eating disorder clinic.
[139] Although there is evidence that Mr. Vasil did not actually enter the eating disorder
clinic until August 2002, and Mr. Mongovius was aware of that, there is also evidence
that Mr. Vasil was anticipating entering such a clinic in July 2001. On the balance of
probabilities, I find that it was Mr. Vasil’s impending entry into an eating disorder clinic
that prompted his resignation from employment, and not any dissatisfaction with wages.
I come to this conclusion for a number of reasons.
[140] First, Mr. Vasil himself testified that he did not really pay attention to what he
was being paid by the respondents; he reported the income on his paystubs to the
Ministry, and that was the extent of his involvement. This testimony is somewhat
inconsistent with his assertion that he became dissatisfied with what Mr. Mongovius was
paying him.
[141] Second, none of the individuals who were close to Mr. Vasil indicated that he was
dissatisfied with his wages at this time. In particular, neither Mr. Vandebeek nor Ms.
Vasil indicated that he had any discussion with them in this regard.
[142] Third, the pattern of contact following Mr. Vasil’s termination was inconsistent
with his assertion that he was angry with Mr. Mongovius. There was consistent contact
between them even in the months immediately following Mr. Vasil’s resignation. On one
occasion, in September 2001, the notation in Mr. Mongovius’ daytimer is that Mr. Vasil
called to say “hi”.
[143] Thus, I cannot find that Mr. Vasil resigned his employment because of
dissatisfaction over his wages. I find it more likely that he resigned his employment in
preparation for entering an eating disorder clinic; a process that turned out to be lengthier
than he initially anticipated.

Period of Time for Which Mr. Vasil was Away From Work

[144] On the other hand, I accept Mr. Vasil’s assertion that he did not remain off work
for the entire period between his resignation and his move to Victoria. Rather, I find that
he was off work until approximately March 2002, and that he then returned to work prior
to moving to Victoria.
[145] I come to this conclusion for the following reasons.
[146] First, the period during which Mr. Vasil was away from work is somewhat
connected to the period that Mr. Kassam was working. In this regard, and on all of the
evidence before me, I find that Mr. Kassam did do some work for Mr. Mongovius shortly
after Mr. Vasil left his employment, as evidenced in particular by Mr. Mongovius’
daytimer notations. I accept Mr. Kassam’s and Mr. Mongovius’ testimony that this
employment was on a relatively irregular basis at that time.
[147] Second, starting in April 2002, Mr. Mongovius’ daytimer includes notations
involving Mr. Vasil on a frequent basis, and contains almost no notations relating to Mr.
Kassam. I find that during this period of time, Mr. Vasil was working for Mr.
Mongovius, while Mr. Kassam was not, or was only working extremely irregularly.
[148] Third, the respondents’ first cheque to Mr. Kassam is dated July 2002. This
corresponds closely with Mr. Vasil’s testimony that he returned to work sometime after
his resignation, that he worked until July 2002, and that Mr. Kassam started right before
he left. I note in this regard that the cheques paid to Mr. Kassam and his company had
not been disclosed to Mr. Vasil at the time he gave this testimony, as they were disclosed
only during Mr. Mongovius’ cross-examination.
[149] Fourth, Mr. Vasil testified that he was working for the respondents when the
purchases from Future Shop were beginning to pick up. Mr. Mongovius agreed that this
period was approximately March – May 2002. It was put to Mr. Mongovius that he
would have required assistance during this period. He agreed with this suggestion, but
testified that his son and two other individuals must have helped during this period. He
also testified that Mr. Kassam could have helped and been paid in cash.
[150] Fifth, although Mr. Kassam testified that he had worked for the respondents from
the summer of 2001 to the summer of 2003, he could only recall one summer break, one
Christmas break, and one spring break. In my view, this recollection is more consistent
with the pattern of work outlined above, than with the conclusion that Mr. Kassam was
working regularly throughout the period.
[151] Given the notations in Mr. Mongovius’ daytimer, Mr. Vasil’s testimony, the
cheques relating to payments to Mr. Kassam, and my conclusions with respect to Mr.
Kassam’s evidence, I find it most likely that Mr. Vasil did work for the respondents from
March 2002 until he left for Victoria in July 2002.
[152] I also find it likely that Mr. Kassam was paid in cash for the period of time that he
was working irregularly. In July 2002, when Mr. Kassam began to work more hours, he
was paid by cheque. There is then no record of payment after July 2002 until January
2003. It is probable that, during this period of time, Mr. Kassam was being paid in cash.
Terms of Mr. Vasil’s Employment: 2002

[153] Having come to the conclusions above, I must also determine the terms under
which Mr. Vasil returned to work. Mr. Vasil testified that he agreed to return to work on
the basis that he would be paid $2,500 per month: $300 in cash and the remainder via
cheque to the Ministry.
[154] I cannot find, on the balance of probabilities, that this arrangement was made.
[155] First, and as outlined above, I do not accept that the reason that Mr. Vasil initially
quit his employment because he felt he was being underpaid. Thus, there would have
been no impetus for Mr. Vasil to renegotiate the terms of his employment.
[156] Second, I find it unlikely that Mr. Mongovius would have offered Mr. Vasil
$2,500 per month for the same work he had previously paid him $10 per hour to perform.
[157] Third, during the period in question, Mr. Mongovius had an option other than Mr.
Vasil: Mr. Kassam. I find it unlikely that Mr. Mongovius would have offered Mr. Vasil
$2,500 per month when he knew that he was able to pay Mr. Kassam $10 per hour for the
same work.
[158] Fourth, although Mr. Vasil repeatedly stated that the arrangement was well
documented, there is no documentary record of it anywhere (most notably, in the
Ministry file). I also note that none of Mr. Vasil’s witnesses testified that he had told him
about the $2,500 per month arrangement. This included Mr. Vanderbeek, who had some
ongoing involvement in his finances, and his sister, who he testified he was close to.
[159] As I have not accepted Mr. Vasil’s evidence that he agreed to return to work for
$2,500 per month, the next question is what the pay arrangements between the parties
were. In the absence of any other evidence to the contrary, and given Mr. Vasil’s rate of
pay both before 2002 and in June 2003 (below), I find that the arrangement continued to
be $10 per hour from March to July 2002. In the absence of any evidence to the contrary,
I find it likely that Mr. Vasil’s days and hours of work during this period would be
consistent with his earlier pattern.
4. Victoria Period
[160] Mr. Vasil testified that he lived in Victoria from August 2002 to March 2003,
when he returned to Vancouver. His evidence in this regard is corroborated by the
History Report and other Ministry records. In the History Report, it is clear that the
Ministry office servicing Mr. Vasil changed in late July 2002 to a Victoria based office,
and that Mr. Vasil returned to Vancouver in March 2003. In addition, there is a rental
agreement for a Victoria apartment that is dated August 1, 2002, and a rental information
sheet indicating that Mr. Vasil moved into a Vancouver residence on April 1, 2003. It is
clear from the evidence before me, and in particular the Ministry’s History Report, which
I have no reason to believe is inaccurate, that Mr. Vasil was living in Victoria between
August 2002 and March 2003.
[161] While he lived in Victoria, Mr. Vasil returned to Vancouver regularly for medical
appointments, and visited the respondents when he did so. While at the shop, he did
some work, although even Mr. Vasil testified that he didn’t really do much in the shop
while he was there; he “putzed around with Kassam”, and maybe cleaned up a little bit.
[162] Mr. Mongovius did not pay Mr. Vasil wages during this period. He testified that
he may have given Mr. Vasil extra money on occasion, but it was not for work
performed. In closing argument, Mr. Vasil’s counsel noted that the Victoria Period is not
part of his wage loss claim.
5. Later Period
[163] Some time after Mr. Vasil returned to Vancouver from Victoria, in late March or
early April 2003, he also returned to his employment with the respondents. The precise
date on which the Later Period started was, again, the subject of some dispute, as were
the terms and conditions under which Mr. Vasil was employed. There is no dispute,
however, about when the Later Period ended: with Mr. Vasil’s termination on March 15
or 16, 2006.

a. Start of the Later Period

[164] Although it is clear that Mr. Vasil returned to Vancouver in late March or early
April 2003, it is less clear when he returned to work with Mr. Mongovius.
[165] Mr. Vasil testified that, after his return to Vancouver, he found a new apartment
and returned to work almost immediately. He then testified that he was not entirely sure
of the precise day he returned to work because he never kept track. He then said he was
“very not sure if one day or one month” went by before he again started work with Mr.
Mongovius.
[166] Mr. Mongovius, on the other hand, testified that Mr. Vasil returned to work with
him at the very end of May 2003. His recollection in this regard was, again, based on the
available documentary records.
[167] For June 2003 (the first date is actually May 31, 2003), there is a handwritten
record of hours which indicates 25 hours worked on 8 days. There is also a payment
advice form indicating that Mr. Vasil was paid by cheque, $10 per hour for these hours.
[168] There is also other evidence that tends to support Mr. Mongovius’ testimony in
this regard.
[169] In particular, there is some indication that Mr. Vasil was not particularly well at
the time he returned to Vancouver. The History Report indicates that there was some
possibility of Mr. Vasil receiving further treatment for his eating disorder in Vancouver.
In addition, there are some medical records which indicate that Mr. Vasil had a brief
hospitalization during this period for reasons unrelated to his eating disorder, and that he
experienced a significant amount of disruption with respect to his housing situation.
[170] Ruth Johnson gave evidence about her interactions with, and observations of, Mr.
Vasil upon his return to Vancouver at the beginning of April 2003. Ms. Johnson testified
that Mr. Vasil was in a really bad state emotionally and mentally. She testified that every
day was a new adventure.
[171] Further, the parties agree that Mr. Kassam stopped working for Mr. Mongovius
shortly after Mr. Vasil returned to work. Mr. Kassam testified that he last worked for Mr.
Mongovius in June 2003, and that he worked with Mr. Vasil for approximately one
month at that time. The last cheque paid to Mr. Kassam is dated June 2003, for hours
worked in May 2003.
[172] Mr. Kassam testified that, the month following Mr. Vasil’s return, he was given
progressively fewer hours. Mr. Mongovius and Mr. Vasil testified to similar effect. In
particular, Mr. Mongovius testified that he could not afford to pay both Mr. Vasil and Mr.
Kassam. He testified that he and Mr. Vasil “were more compatible” than he and Mr.
Kassam; he testified that he and Mr. Vasil worked well as a team, and had harmony
going, and that they worked better together. Thus, he preferred to offer the hours to Mr.
Vasil.
[173] Thus, on all the evidence before me, I find that Mr. Vasil did not return to work
until late May or early June 2003; which is therefore the start of the Later Period.

b. Terms and Conditions of Mr. Vasil’s Employment

[174] The parties disagreed about a number of issues relating to Mr. Vasil’s
employment in the Later Period. In particular, there were disputes about the hours
worked by, and pay arrangements for, Mr. Vasil. I will review the evidence with respect
to each of these in turn.

What was the Rate of Pay?

[175] With respect to pay, Mr. Vasil testified that he and Mr. Mongovius did not discuss
what he would be paid when he returned to work after his time in Victoria. He stated that
he believed he would still receive the $2,500 per month that they had previously agreed
to, with $300 of that amount being paid in cash, and the remainder being sent to the
Ministry to administer on his behalf. Mr. Vasil testified that, as far as he was aware, he
had been paid in the same manner since 2002.
[176] Mr. Vasil testified that, pursuant to this agreement, he generally received $300 in
cash from Mr. Mongovius each month. He described it as a green bill ($20) and a blue
bill ($5) every two days. He testified, however, that Mr. Mongovius would sometimes
give him additional amounts.
[177] As noted above, Mr. Mongovius strenuously denied the $2,500 arrangement. He
testified, among other things, that he could never have afforded to pay this amount. As
discussed above, I cannot find, on a balance of probabilities, that Mr. Vasil’s evidence
that Mr. Mongovius told him that he would pay him $2,500 per month was substantiated.
[178] Further, I accept Mr. Mongovius’ evidence that Mr. Vasil returned under the same
conditions he had during the Early Period, at a rate of pay of $10 per hour. This is
substantiated by the only documents available for this period: a handwritten sheet listing
the hours he worked, and the pay stub prepared with respect to it.
[179] However, Mr. Mongovius testified that, shortly after Mr. Vasil returned to work,
he indicated that he wanted to be paid $25 per day. In cross-examination Mr. Mongovius
testified that he didn’t know what precipitated this; Mr. Vasil just told him that he wanted
$25 per day.
[180] In this regard, the July 9, 2003 entry in Mr. Mongovius’ daytimer contains a
notation that reads: “Martin called. 20 / + $5.00/day – [phone number] – L.M.” Mr.
Mongovius testified that this could have been a message that Mr. Vasil left on Mr.
Mongovius’ voice mail, and Mr. Mongovius called him back and left a message
(“L.M.”). He further stated that it could be a reference to $25 per day, but he was not
sure why it was expressed as $20 + $5. Notably, the description of the breakdown of the
payment “$20 + $5”, accords with Mr. Vasil’s testimony that he was paid a green bill and
a blue bill. As stated previously, Mr. Mongovius’ daytimers had not been disclosed to
Mr. Vasil prior to Mr. Vasil’s testimony. I therefore find it likely that Mr. Vasil
requested the $25 per day payment (expressed as either a green bill and a blue bill, or a
$20 and a $5), and that Mr. Mongovius agreed to the arrangement.
[181] Mr. Mongovius was asked in cross-examination whether he understood that
paying Mr. Vasil $25 per day was less than minimum wage. Mr. Mongovius responded
that he just did what Mr. Vasil “told him” to do. He really didn’t take minimum wage
into consideration at all.
[182] It was suggested to Mr. Mongovius in cross-examination that Mr. Vasil was not
referring to his total wages, but was simply saying that he did not want more cash than
$25 per day. Mr. Mongovius disagreed with this suggestion, stating that Mr. Vasil in fact
often received more cash than $25 per day. Mr. Mongovius again said that he was just
doing what Mr. Vasil wanted.
[183] It was put to Mr. Mongovius that he and Mr. Vasil simply exchanged messages on
the topic, and thus it was possible that Mr. Mongovius could have misunderstood what
Mr. Vasil was saying. He disagreed and said that he was sure he would have talked about
the change with Mr. Vasil, although he had no actual recollection of doing so.
[184] Mr. Mongovius was asked whether Mr. Vasil ever gave him a reason for wanting
the change in arrangements. He answered that he was not aware of any reason for the
change. Mr. Vasil may have given him a reason, but he did not recall.
[185] Ms. Burrows testified that shortly after Mr. Vasil started back to work, he became
worried about loosing his disability assistance. She testified that Mr. Vasil approached
her and Mr. Mongovius on a day that she was in the office. He wanted to receive a set
amount of money daily, and not have to worry about losing his disability benefits. Ms.
Burrows testified that, for her part, she wanted to make sure he would not be working
many hours, given minimum wage issues. She talked to Mr. Mongovius to try to feel out
the situation between the two of them, and raised the issue of how many hours a day Mr.
Vasil was going to be working. Her understanding was that Mr. Vasil was working fewer
hours, and was on a flexible schedule, such that there would be no concern with him
being paid less than minimum wage.
[186] It was put to Mr. Mongovius that this arrangement was, in fact, more beneficial to
him than to Mr. Vasil. If Mr. Vasil was being paid $10 per hour and working six to seven
hours a day, Mr. Mongovius should be paying Mr. Vasil $60-70 per day worked.
However, under this arrangement he would pay him only $25. Mr. Mongovius replied
that this was one way of looking at it, but that it had never crossed his mind to think of it
that way. He also testified that Mr. Vasil would often receive more than $25: money for
cigarettes, lunch and extras. He testified that there were always extras that Mr. Vasil
would want on top of the $25, although he did not say that this was any different when
Mr. Vasil was being paid $10 per hour.
[187] Mr. Mongovius testified that the $25 per day arrangement continued until March
2004.
[188] Much of the available documentary evidence supports Mr. Mongovius’ version of
the pay arrangements. The documents include a sheet handwritten by Ms. Burrows,
which is headed: “Martin $25 per day”, and makes payroll calculations based on the
number of days worked in July, August, and September 2003.
[189] There is a second sheet handwritten by Ms. Burrows, which is headed “Martin
Payroll”, which indicates days Mr. Vasil worked in October, November and December.
There is a notation on the sheet that $25 per day was paid to Mr. Vasil in cash, and $10
for the purchase of lunch or cigarettes each day he attends work, for a total of $35 per
day. Ms. Burrows testified that she thought she found out from Mr. Mongovius that Mr.
Vasil was being paid the additional $10 per day. For a period, she made calculations
based on this amount.
[190] Mr. Vasil agreed that Mr. Mongovius would give him $10 (“two blue bills”) a day
for lunch each day that he worked. He testified that he did not think that this would be
deducted from his wages.
[191] In addition, there are payment advice forms from October to December 2003
which indicate that Mr. Vasil was being paid at the rate of $25 per day. Again, these are
simply paystubs, not cheques, and therefore may not bear any relation to what Mr. Vasil
was actually paid during these periods. Again, Mr. Vasil testified that these paystubs
were given to him in envelopes, and that he took them to the Ministry when he received
them.
[192] There are no paystubs, or records of hours or days worked for January or
February 2004, but an “Employee Detail” sheet, identified by Ms. Burrows, lists Mr.
Vasil’s gross pay as $490 in January 2004 (14 days at $35 per day), and $665 in February
2004 (19 days at $35 per day). As outlined above, Ms. Burrows testified that she
recorded Mr. Vasil’s pay at $35 per day for a period of time. However, at some point,
she determined that Mr. Mongovius was not claiming the additional $10 as a business
expense and so, after that, the calculations continued to be made based on $25 per day.
[193] Notations in the History Report also indicate that the $25 per day arrangement
was communicated to the Ministry. On February 3, 2004, there is a notation that Ms.
Fuchs spoke to Mr. Vasil’s “volunteer coordinator”, who “reports that he has seen an
improvement in clt’s health and ability to relate to others. Clt is very reliable and hard
working. Rec’s $25/day for vol. work”.
[194] Ms. Fuchs testified with respect to this notation that her observation was that Mr.
Vasil was not able to clearly understand what was going on around him. She understood
from Mr. Mongovius that Mr. Vasil was a volunteer with no specific hours, and no
specific amount of work to be done in a day. She testified that her general belief was that
he was volunteering, information which may have been passed on to her from Mr. Vasil’s
previous EAW. However, and in any event, her major concern was whether or not Mr.
Vasil was earning income in excess of the exemption level. It was difficult to get this
information from Mr. Vasil, but once she talked to the employer she was informed it was
under the exemption level and so she was not particularly concerned.
[195] Mr. Vasil disputes that he was being paid $25 per day. He states that he was
being paid $25 every two days (or three times a week), and that this was simply supposed
to be the cash portion of his payment, with the remainder of his payment going to the
Ministry to pay his expenses, and with any remainder to be held in trust.

What Hours and Days did Mr. Vasil Work?

[196] In addition to the dispute over the rate of pay Mr. Vasil was receiving, the parties
also disagree about the number of days Mr. Vasil worked each week. The respondents
relied on their pay documents, while Mr. Vasil alleged that they were not an accurate
record of his actual days of work.
[197] In particular, Mr. Vasil took issue with the written records indicating that he
worked eight days in June, 11 days in July, 16 days in August, 12 days in September, 14
days in October, 20 days in November, 14 days in December, 14 days in January, and 19
days in February. He testified that these records are not accurate and that, in fact, he
worked the same number of days that he worked during the Early Period: four full week
days, and half a day on Saturday.
[198] With respect to his hours of work, Mr. Vasil testified that he would arrive at work
before 10 a.m., and would leave when Mr. Mongovius left the shop, between 5 and 5:30
p.m.. Mr. Mongovius would then drop him off at a nearby bus stop from which he would
take the bus home.
[199] Mr. Vasil stated that he continued to take work home, and that the amount of such
work depended on the size and timing of the shipments to the shop.
[200] Thus, Mr. Vasil testified that the records provided by the respondents
underrepresented both the number of days and hours per day he worked.
[201] I have some concern with the reliability of the payroll documentation. Mr.
Mongovius was asked how he kept track of the days Mr. Vasil worked, and he testified
that he would call Ms. Burrows, who did his payroll, with the number of days Mr. Vasil
worked, and she would do the payroll. Later in his testimony, Mr. Mongovius was
unclear as to whether it was he or Mr. Vasil who kept track of the number of days that
Mr. Vasil worked each month. Mr. Mongovius was, however, clear that no one kept
track of Mr. Vasil’s hours during this period, as he was being paid on a daily basis.
[202] Ms. Burrows was also asked how she knew how many days to input for Mr. Vasil.
She testified that all the hours or days Mr. Vasil worked would come out of Mr.
Mongovius’ daytimer. She testified that she would sit down with Mr. Mongovius and he
would give her the dates that Mr. Vasil worked, looking at his daytimer. He would scan
through the pages and tell her the dates. Ms. Burrows testified that she did not look at
Mr. Mongovius’ daytimer or take a copy: she had no reason to question what he was
telling her.
[203] Ms. Burrows’ evidence in this regard is problematic, at least as it relates to the
period from 2003 to mid-2005, as there is no evidence that Mr. Mongovius actually kept
track of Mr. Vasil’s attendance at work in his daytimer during that period. There are no
notations of hours in his daytimer, and Mr. Mongovius himself testified that it was not
until July 2005 that he started keeping track of Mr. Vasil’s days of work. It may be that
Ms. Burrows is recalling a later period, perhaps from late 2005 to the end of Mr. Vasil’s
employment.
[204] Thus, neither Mr. Mongovius nor Ms. Burrows had a clear recollection of how
they kept track of the number of days Mr. Vasil would work in the period. In addition,
Mr. Mongovius’ testimony in this regard is somewhat at odds with concurrent letters he
wrote. For example, in a letter dated August 12, 2003, addressed “to whom it may
concern”, and provided to the Ministry, Mr. Mongovius wrote:
Martin first came into my store four years ago with an interest in
computers, how they operate and the causes of them breaking down. Over

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the next few months he expressed his interest in volunteering his services
to learn more about computers, monitors, printers, etc.

As far as Martin’s work ethics are concerned, he does the work of two to
three men, and in less time.

He showed his dedication to want to work in this environment by
rollerblading from his apartment [in Vancouver] to my shop [in Burnaby]
4 to five times a week for 3 to four months.

He did this because of the confrontations he had with the skytrain security
people.

I fully trust Martin from working on expensive notebooks to tending the
store while I am not here.

[205] In this letter, Mr. Mongovius states that Mr. Vasil worked four to five times a
week, which is largely consistent with Mr. Vasil’s own testimony.
[206] Similarly, in a letter dated August 28, 2003, also addressed “to whom it may
concern”, Mr. Mongovius wrote:
Martin Vasil has a part time job with my company, 5 days per week.

He repairs and maintains computers, audio video equipment as well as
other electronics.

He is very trustworthy & has his own key to our shop …

[207] Mr. Mongovius testified that these letters were written for Mr. Vasil as a character
reference, for Mr. Vasil to provide to the Ministry. He testified that there were many
exaggerations in the letter, as he essentially wrote down whatever Mr. Vasil told him to.
[208] These factors, combined with the discrepancies I have found to have existed in the
pay records for the Early Period, are sufficient to cast some doubt on the reliability of the
respondents’ records.
[209] However, there is also evidence before me which would support a finding that Mr.
Vasil was working somewhat reduced hours in the Later Period.
[210] First, there is Ms. Johnson’s evidence, described above, about Mr. Vasil’s general
health when he arrived back in Vancouver.
[211] Second, it is evident from the History Report that Mr. Vasil was having issues
securing stable housing at the end of July 2003, and that he became increasingly upset
about that situation. It appears that this situation was resolved by the beginning of
September 2003.
[212] Third, Mr. Vasil testified that he had a number of problems with the police during
this period of time. In particular, Mr. Vasil testified that around June/July 2003 he had an
incident with the police while he was taking a notebook home for repair. In this regard,
both Mr. Vasil and Mr. Mongovius testified about an incident at the Skytrain station
when Mr. Vasil was arrested, and the notebook computers he was carrying confiscated.
He was taken to the cells and not released until Mr. Mongovius was contacted and
confirmed that the notebooks were his. This was not the first bad experience Mr. Vasil
had with the police, and it appeared to have a significant impact on him.
[213] The History Report indicates that Mr. Vasil was quite depressed at the end of July
2003, as a result of this incident. It appears that he was briefly hospitalized. There is a
further notation on the History Report on October 27, 2003 that Mr. Vasil reported that he
had not been going to the computer shop for a while, as he was always getting hassled on
the Skytrain, and it was becoming too stressful for him. There is also a notation in Mr.
Mongovius’ daytimer on the same date which states, “Martin here & went home re: Sky
Train security problems”.
[214] Fourth, Mr. Mongovius testified that, during this period of Mr. Vasil’s
employment, his work hours were more erratic than they had previously been.
Sometimes he would come into work and sometimes he would not. This testimony is
consistent with the evidence outlined above.
[215] Thus, although Mr. Vasil takes issue with the number of days that he is reported
to have worked in and around this time, the surrounding circumstances are somewhat
consistent with a lower number of days worked.
[216] Unfortunately, there is little reliable evidence before me with respect to the days
and hours Mr. Vasil worked during this period. On a balance of probabilities, however,
and taking into account all of the evidence before me, I find that the pay records produced
by Mr. Mongovius are the best record of the days Mr. Vasil worked from June 2003 to
the end of February 2004. With respect to hours of work, I find on all the evidence
before me that Mr. Vasil continued to average six to seven hours a day for each weekday
that he worked, and four hours a day on each Saturday he worked.
[217] I also accept Mr. Vasil’s evidence that he continued to do repairs at home during
this period. Mr. Mongovius did not seriously challenge this evidence, although he did
dispute that Mr. Vasil was to be paid for this work. In addition, Mr. Vasil’s evidence is
supported by the circumstances surrounding his problems with Skytrain security, which
occurred because he was taking a notebook computer home from work to repair. I find
that, during this period, Mr. Vasil worked approximately five additional hours per week
at home.

c. Changes in March 2004

[218] The parties agree that the pay arrangements changed in March 2004. They
disagree over the reasons for that change, and its results.
[219] Mr. Vasil testified that, although Mr. Mongovius was only supposed to be paying
him $25 in cash every two days, he would sometimes give him additional amounts. Mr.
Vasil testified that on one occasion, Mr. Mongovius gave him an additional $100 bill.
[220] Mr. Vasil stated that he went to the Compassion Club that day, and that Mr.
Vandebeek asked him where the money had come from. When Mr. Vasil told Mr.
Vandebeek that Mr. Mongovius had given him the money, Mr. Vandebeek told him to
give the money back. Mr. Vasil did so. Mr. Vandebeek advised Mr. Vasil that he should
not be receiving additional amounts of cash.
[221] However, the next day Mr. Mongovius gave him an additional $50. He again told
Mr. Vandebeek, who repeated that receiving additional amounts of money without
declaring them was fraud. Mr. Vasil says, at that point, Mr. Vandebeek gave him a letter
to give to Mr. Mongovius. That letter, dated March 13, 2004, states as follows:
I’m writing in regards to Martin being in your employment. His Social
worker and his Doctor have made it very clear to both him and me that
physically and mentally he cannot work more than 3 days non-consecutive
at your store. Martin is very much on the up and up about his finances and
he’s exceeding his allowable income from you any time you give him

Â
more than $75.00/week and his worker has told him that he’s risking being
cut off.

I understand and appreciate your desire to see Martin taken care of
financially when you give him $25.00 for any amount of hours he does if
he happens to work more than his allotted 3 days in a week but the
problem is he gets frustrated that he can’t explain properly why he can’t
accept it. Please only pay him his $75.00 per week.

Thank you Rawn for you time and patience.

[222] It is signed by Mr. Vandebeek. Mr. Vasil provided the letter to Mr. Mongovius.
[223] Mr. Vasil, Mr. Mongovius, and Mr. Vandebeek each testified with respect to their
understandings of this letter.
[224] Mr. Vandebeek testified that, during this period, Mr. Vasil would use extra money
to purchase items that were harmful to his health. In order to stop this from happening,
Mr. Vandebeek took over Mr. Vasil’s immediate finances. Any money that Mr. Vasil
was given, he would give to Mr. Vandebeek, and Mr. Vandebeek would return it to him
for specific purchases. Mr. Vasil would then provide Mr. Vandebeek with receipts for
the things he purchased. Mr. Vandebeek testified that this went on for close to a year.
[225] Mr. Vandebeek testified that the letter was directed only at cash payments made to
Mr. Vasil by Mr. Mongovius. He did not know what their full financial arrangements
were, but assumed that it was handled between Mr. Vasil and social services. His
primary concern related to the cash given to Mr. Vasil.
[226] In addition, Mr. Vandebeek testified that he had discussions with Mr. Vasil
leading up to the writing of this letter. Mr. Vasil advised Mr. Vandebeek that his doctor
was concerned about him working too much, that it was having an impact on his physical
health. So he wanted Mr. Vandebeek to write the letter to Mr. Mongovius, asking that he
only be required to work limited days.
[227] With respect to the comment “he’s exceeding his allowable income from you any
time you give him more than $75.00/week and his worker has told him that he’s risking
being cut off”, Mr. Vandebeek testified that he knew that people on social assistance are
allowed to generate income, but only to a certain level. Mr. Vasil had told Mr.
Vandebeek that he wanted to make sure that he was not receiving more cash than he was
allowed. He stated that he based the $75.00/week on 3 days (which is what he
understood Mr. Vasil was working) at $25.00 per day. He testified that he was not aware
of the exemption level at the time the letter was written.
[228] Mr. Mongovius testified that Mr. Vasil brought him Mr. Vandebeek’s letter, and
Mr. Mongovius read it. Mr. Mongovius understood that Mr. Vandebeek had some
involvement with Mr. Vasil’s finances. Given these circumstances, Mr. Mongovius felt
that he should adhere to the letter. He testified: “I took it as gospel”. His understanding
from the letter was that he was to pay Mr. Vasil $75/week, with no extra money. Mr.
Mongovius testified that he understood that, if he gave Mr. Vasil more money, it would
jeopardize his social assistance benefits. He noted that Mr. Vasil was always quite fearful
of losing his social assistance benefits.
[229] Mr. Mongovius subsequently wrote a letter to the Ministry, dated July 15, 2004,
confirming this arrangement. The letter states:
The agreement is that we pay Martin cash each week for three days of
work per week, whether or not he is physically capable of working.
Martin does make up any missed time when he is physically able.

I have included for your convenience a copy of his monthly pay stub,
however Martin is not paid by cheque, he is paid in cash as stated above.

[230] Mr. Mongovius testified that the letter was true. The purpose of the letter was to
follow up on the letter received from Mr. Vandebeek, and to let the Ministry know what
was going on. He testified that he believed that everyone who was assisting Mr. Vasil
was aware of the pay arrangements during this period, and that no one expressed concern
to him about those pay arrangements.
[231] Mr. Mongovius was asked in cross-examination whether he understood the letter
to mean that Mr. Vasil would be paid less than he had previously been receiving. He
agreed that he had understood this. He also testified that the minimum wage issue had
not crossed his mind. Similarly, he did not consider the impact on CPP or EI
contributions. He stated that he was just doing what he was told to do.
[232] Unlike Mr. Mongovius, Ms. Burrows testified that she cast her mind to minimum
wage requirements, that she made enquiries in this regard, and that her understanding was
that Mr. Vasil would only be working a small number of hours a week. She testified that
this allayed her concerns.
[233] The March letter was shown to Ms. Fuchs when she testified. She stated that
much of the information in the letter was factually inaccurate. She testified that she
would not have told Mr. Vasil that he could be cut off if he had earnings over the
exemption level, as this was not the case. If Mr. Vasil had wages that exceeded the
exemption level, the excess would have been deducted from his assistance on a dollar for
dollar basis, but he would not have been cut off.
[234] The parties do not agree about what the actual pay arrangements were between
them during this period, or what Mr. Vasil’s actual days and hours of work were. I will
consider each of these issues in turn.

What Hours and Days did Mr. Vasil Work?

[235] As outlined above, the letter from Mr. Vandebeek indicates that Mr. Vasil is not
to work more than “3 days non-consecutive” per week. In addition, there is a letter from
Mr. Vasil’s physician to Mr. Mongovius dated June 2004 stating that Mr. Vasil was
unable to work due to extreme agitation, and his fear of the TransLink police.
[236] Mr. Vasil testified that he asked his doctor to write the June letter after he had
another run-in with the TransLink police. There was evidence about a number of
interactions between Mr. Vasil and the police during his employment with Mr.
Mongovius, and it is not clear which incident Mr. Vasil is referring to. However, Mr.
Mongovius testified that there had been an incident shortly before this letter, and that Mr.
Vasil had become very upset.
[237] Mr. Vasil testified that Mr. Mongovius refused to give him time off, while Mr.
Mongovius testified that Mr. Vasil had, in fact, taken time off at this time.
[238] Despite the two letters noted above, Mr. Vasil testified that he worked his regular
days and hours during the period in question.
[239] With respect to days of work, Mr. Mongovius testified that he was not really sure
of what days or hours Mr. Vasil was working during this period. He understood from the
letter that Mr. Vasil was to work no more than three consecutive days in a week (although
the letter actually says “non-consecutive”).
[240] Mr. Mongovius testified that, on some occasions Mr. Vasil would call him from
home and say he was bored and ask if he could come to the shop. Mr. Mongovius
testified that he would say sure, but that he was not expected to pay Mr. Vasil when this
happened as Mr. Vasil came in of his own accord.
[241] On all the evidence before me, I find on the balance of probabilities that Mr. Vasil
was working more than the “three non-consecutive days a week” stated in Mr.
Vandebeek’s letter. In this regard, I note Mr. Mongovius’ evidence characterizing his
understanding of the limitation as no more than “three consecutive days”. I also note his
testimony that Mr. Vasil would often ask to work additional days, and that he would
agree that Mr. Vasil could come in to the shop.
[242] On the other hand, I find that Mr. Vasil was working less than the five days a
week, six to seven hours a day that he testified to. I find that his days and hours of work
during this period were similar to the days he worked in the October 2003 to February
2004 period: approximately 16 days per month.

What was the Rate of Pay

[243] With respect to the pay arrangements, the formal pay documents relating to Mr.
Vasil’s employment reflect Mr. Mongovius’ understanding of the terms of Mr.
Vandebeek’s letter. An “Employee Detail” sheet identified by Ms. Burrows indicates
that Mr. Vasil was paid a gross amount of $312 each month ($300 plus holiday pay) from
March to December 2004. There was withholding for CPP and EI, for a net amount of
$304.81. There is further documentation indicating that this arrangement continued
throughout 2005.
[244] However, and consistent with earlier periods of employment, there was evidence
that the formal pay documents did not reflect the actual arrangements between the parties.
[245] The parties agree that all payments to Mr. Vasil during this period were in cash.
There are, however, no records of what those payments actually were until July 2005, and
the parties have different recollections of what the payments were.
[246] Mr. Vasil testified that he received $25 every two days, usually on Monday,
Wednesday, and Friday. Consistent with Mr. Vandebeek’s letter, he had to report all
other money to the Ministry, and such money would have been documented by a letter.
Mr. Mongovius wrote such letters on December 1, 2004 (an extra $50) and on February
5, 2005 (an extra $50). Mr. Vasil stated that this was the extent of the additional cash he
received.
[247] In addition, Mr. Vasil testified that, throughout this period, he would receive
envelopes from Mr. Mongovius, and that he would take those envelopes to the Ministry.
He testified that he was not aware what was in the envelopes, and that they were sealed.
However, he believed that the Ministry was sending his wages to a third party
organization, the Coast Foundation, to be administered. The Coast Foundation assists
individuals with mental health issues and PWD status set up trust funds to deal with
payments they receive that go beyond the Ministry’s exemption limits.
[248] Mr. Mongovius had a different recollection of the cash which he paid to Mr.
Vasil, although his evidence in this regard was not entirely consistent with his testimony
about Mr. Vandebeek’s letter. On the one hand, he testified that he took the letter as
“gospel”, that he understood how important Mr. Vasil’s social assistance benefits were to
him, and that he did not want to jeopardize those benefits in any way. On the other, he
agreed that, even after receiving the letter, he frequently gave Mr. Vasil more than the
$75 per week: either for tobacco, or because Mr. Vasil would ask him for more money.
In fact, Mr. Mongovius testified that he paid Mr. Vasil varying amounts of cash each day
that Mr. Vasil worked. At the end of the day, Mr. Mongovius would ask Mr. Vasil how
much he wanted, and whatever Mr. Vasil asked for, Mr. Mongovius would give him.
[249] Mr. Mongovius testified to similar effect about the two letters to the Ministry
indicating that he had given Mr. Vasil additional funds. He testified that, from time to
time, Mr. Vasil would ask him to write such letters, and he would do so.
[250] In addition, Mr. Mongovius testified that he would sometimes give Mr. Vasil
significantly more money. For example, he gave Mr. Vasil $550 in cash at Christmas and
told him not to tell the Ministry. Mr. Mongovius testified that he felt that the money was
a bonus, and would not jeopardize Mr. Vasil’s benefits. He agreed that he may have told
Mr. Vasil not to say anything about it so it would not cause problems. He testified that it
seemed okay to him.
[251] Thus, although Mr. Mongovius stated that he took the letter as gospel, according
to his testimony he did not abide by it in any meaningful way, and did not seem to believe
that he was jeopardizing Mr. Vasil’s benefits by paying him more than $75 per week.
[252] Mr. Mongovius testified that the arrangements that were established in March
2004 continued for all of 2004 and into 2005. In 2005, however, there was a period of
time when Mr. Vasil was not at work because of other events that occurred in his life. I
will consider these events to the extent that they are relevant to Mr. Vasil’s complaint.

d. Spring 2005 to December 2006

Trip to Slovakia

[253] The parties agree that Mr. Vasil was away from work for approximately one
month in 2005. Mr. Vasil’s father, who owned land in Slovakia, asked him to go to
Slovakia to reclaim the land under Slovak law, and he arranged to do so.
[254] Mr. Vasil left for Slovakia on April 18, 2005, and was scheduled to return May 5.
Mr. Mongovius assisted him by purchasing a ticket for him with airmiles points, and by
providing him with a significant amount of spending money.
[255] In addition, Mr. Mongovius provided Mr. Vasil with the use of his cellular phone.
Mr. Vasil testified that Mr. Mongovius asked him to take the cellular phone with him and
to use it in emergencies.
[256] The trip did not go well. Mr. Vasil became sick on the flight from London to
Munich and missed his initial connection to Bratislava. He then became more ill on the
later flight from Munich to Bratislava. He was hospitalized in Bratislava.
[257] While in the hospital, he met a nurse, named Zuzana. They started a relationship.
[258] It took some time for Mr. Vasil to be released from the hospital, and for the
arrangements to be made for him to return to Canada. After some intervention from Mr.
Vasil’s doctor, the Canadian government arranged to have Mr. Vasil returned to Canada.
As he could not fly unattended, Zuzana accompanied him as a medical escort. On Mr.
Vasil’s return, the government confiscated his passport until he could pay off the amount
of his flight (in excess of $3,000). Mr. Vasil returned to Vancouver on May 14, 2005.
[259] Although Mr. Vasil did not work for a month during April and May 2005, the
respondents provided payment advice forms indicating that he was paid $312 gross for
each of those months.

Aftermath of Slovakia Experience

[260] Both Mr. Mongovius and Mr. Vasil testified that there were changes in their
relationship after Mr. Vasil’s return from Slovakia, although they attributed this change
to different reasons. Mr. Vasil testified that he was becoming more aware that Mr.
Mongovius was taking advantage of him. He stated that this was triggered, in part, by the
discovery that, despite his years of work for Mr. Mongovius, he was unable to qualify for
a Canada Pension Plan (“CPP”) disability pension. In addition, he was beginning to
question the wages that he was being paid.
[261] Mr. Mongovius testified that, after his return from Slovakia, Mr. Vasil’s
personality had changed; he said it was like Mr. Vasil’s mind was elsewhere. He was
argumentative and moody, and the relationship they had previously had seemed to be
deteriorating.
[262] Mr. Mongovius testified that, as a result, he started making the entries in his
daytimer relating to the cash he was paying Mr. Vasil on a daily basis. Thus, starting in
July 2005, and continuing to the end of Mr. Vasil’s employment, there is some
documentary evidence indicating the amount of cash Mr. Mongovius paid to Mr. Vasil,
which I will review below.
[263] Mr. Mongovius testified that, after Zuzana returned to Slovakia, Mr. Vasil was
very focussed on being with her; either having her come to Canada, or returning to
Slovakia himself. He testified that Mr. Vasil kept “bugging him” to get his passport back
in order to facilitate this.
[264] Two large expenses arose from Mr. Vasil’s trip to Slovakia: a cellular phone bill
in the approximate amount of $3,500 (which arose from Mr. Vasil’s use of the phone
given to him by Mr. Mongovius for the trip) and the cost of reclaiming the passport,
which was approximately $3,300. Mr. Mongovius made an agreement with Mr. Vasil’s
father under which Mr. Mongovius agreed to pay the cell phone bill, and Mr. Vasil’s
father agreed to pay Mr. Mongovius $700 per month towards the passport. Mr.
Mongovius testified that, starting in November/December 2005, Mr. Vasil’s father sent
him two cheques (for a total of $1,400), and then no more. Mr. Vasil also brought in
$300 which he said he wanted to put towards the passport.
[265] Starting in June 2005, Mr. Vasil began making preparations for Zuzana to return
to Vancouver, and he also began sending her money. He testified that he sent her money
once a month. Mr. Mongovius provided him with these funds, and Mr. Vasil understood
that the money was coming out of his ($2,500 per month) wages.
[266] However, Mr. Vasil also needed Zuzana to return to Vancouver, in order to travel
back with him. Zuzana needed a Visa to return to Canada, and Mr. Mongovius assisted
in this regard, by writing a letter inviting her to stay with his family.
[267] Zuzana visited from August 30 to September 15, 2005. She stayed with Mr.
Vasil.
[268] Mr. Vasil testified that he worked three days the first week Zuzana was in
Vancouver, and two days the second week. Mr. Mongovius’ daytimer pages show that he
paid Mr. Vasil money on three days the first week of Zuzana’s visit, and four days the
second week.
[269] As noted above, Mr. Vasil had planned to return to Slovakia with Zuzana when
she left. He testified that he intended to move to Slovakia and be able to live on his CPP
disability pension. He testified that his understanding of this pension was that if he
worked for four years he could obtain a pension of $960 per month. Because it is a
federal pension, it is fully portable, which Mr. Vasil’s social assistance benefits are not.
[270] In cross-examination, Mr. Vasil testified that he became aware of the possibility
of collecting a CPP Disability Pension when he started working for Mr. Mongovius. He
testified that it was an idea given to him from one of his EAWs; that he should work on a
full-time basis for as long as he could, and put as much as possible towards his pension.
[271] There is no evidence to corroborate Mr. Vasil’s assertion that he became aware of
the potential benefits of a CPP disability pension at the time he first started to work for
Mr. Mongovius. Rather, on a balance of probabilities I find that Mr. Vasil did not
become aware of the potential for a CPP pension until the Summer of 2005. Ms. Fuchs
gave evidence about discussions she may have had with Mr. Vasil in this regard.
Although she had no specific recollection, she testified that she may have had general
discussions with him when he was initially talking about leaving the country, that he may
want to look into a CPP pension because it was portable. She testified that it was her
practice to have such discussions with clients when they were contemplating leaving the
country.
[272] In addition, it is clear that Mr. Vasil in fact applied for a CPP disability pension in
July 2005. Mr. Vasil testified that he was assisted in his CPP application by the Coalition
for People with Disabilities (the “Coalition”). There is a CPP statement dated July 21,
2005, sent to the Coalition, which indicated that Mr. Vasil did not meet the contribution
requirement to obtain a disability pension from CPP. In particular, the statement showed
that no contributions had been made for the years 2000, 2002 and 2003. The Coalition
advised both Mr. Vasil and the Ministry of this outcome.
[273] Mr. Vasil then wrote an email to Zuzana on July 29, 2005, in which he says that
he would not be able to leave with Zuzana when she went back to Slovakia. He told her
that “they” have to do my finances, and that it would take three to five months. Mr. Vasil
testified that the “finances” that he was referring to were the CPP issues.
[274] Mr. Vasil also testified that he was advised by the Coalition that he did not qualify
for the CPP pension because no contributions had been made on his behalf for a
significant period of time. He stated that, as a result of this information, he confronted
Mr. Mongovius about the situation. Mr. Mongovius told him to ask Ms. Burrows about
it. Mr. Vasil testified that he did so, and that Ms. Burrows assured him that there had
been errors made, but that they would be fixed. She said it would take time.
[275] Mr. Mongovius testified that he recalled one occasion where Mr. Vasil had
mentioned something about a pension. He testified that he told Mr. Vasil to go upstairs
and talk to Ms. Burrows about it. He testified that this was the only occasion on which
Mr. Vasil mentioned anything about CPP.
[276] Ms. Burrows testified that she did not recall Mr. Vasil ever approaching her about
a CPP issue. She testified that, if he ever had, she would have told him that he needed to
contact CPP directly because the issue was completely out of her area of expertise.
[277] Given the evidence of both Mr. Vasil and Mr. Mongovius, and the surrounding
documentary evidence, I find that Mr. Vasil raised concerns about his pension with Mr.
Mongovius in (or around) July 2005. I find that Mr. Mongovius directed him to Ms.
Burrows. I find, on the balance of probabilities, that Mr. Vasil probably raised this issue
with Ms. Burrows, but that he did not do it in as repetitive or emphatic a manner as he
testified to. I find that Ms. Burrows was not aware of the importance of the issue to Mr.
Vasil and thus did not respond to it in any real way.
[278] I find, further, that although Mr. Vasil first became aware of the CPP issues in
July 2005, they did not become of central concern to him until sometime later, perhaps
following the termination of his employment. I note in this regard Ms. Fuchs’ testimony
that it was only after she stopped working with Mr. Vasil (which was in the Summer of
2006) that he started raising CPP issues more concertedly.
[279] In any event, after her visit in August/September 2005, Zuzana returned to
Slovakia without Mr. Vasil. Mr. Vasil testified that this caused him a lot of stress. He
said that they planned that, as soon as his pension came through, she would fly to
Vancouver and they would return to Slovakia together.
[280] Mr. Mongovius also testified that, when Zuzana returned to Slovakia for the
second time, Mr. Vasil was devastated. Mr. Mongovius testified that this was reflected in
his demeanour at work: that he was a little more moody, disgruntled and argumentative.
He testified, however, that this was an up and down experience: Mr. Vasil’s mood would
change based on his perception of how things were going with Zuzana, and whatever
communication they might have had.
[281] It appears that Mr. Vasil hoped that Zuzana would be able to return in December
2005. In order to secure the necessary Visa, Mr. Vasil again asked Mr. Mongovius to
write a letter of invitation to Zuzana. Mr. Mongovius sent Zuzana an email on October
19, stating that his family would like her to come and stay with them again, for a one year
stay or longer. He states that, if she accepted his invitation, he would send her a return
plane ticket as well as expense money for her safe journey.
[282] This initial letter was not accepted, so on November 16, 2005, Mr. Mongovius
wrote a further email to Zuzana for her to use in obtaining a Visa. The email states, in
part:
My name is Rawn Mongovius, owner of Rawn’s Buy & Sell Network Inc.

Martin Vasil, a Canadian citizen, is employed by me, working the capacity
of computer technician.

Mr. Vasil has shown great progress in his dedication to his work.

Martin has his own set of keys and code to the alarm system here at the
shop and is very trustworthy in his employment with me.

He has been in our employ for the last 5 years plus.

Martin suffers from anorexia nervousa, therefore receives minimal wages
because of his current medical condition. He is not able to work a full
shift of eight hours or 5 days a week because of a lack of nutrients.

Mr. Vasil volunteers his time at work when he is able to.

I have met Zuzana … on two separate occasions and I find that her being
with Martin has changed his character, eating and work habits for the
better.

Knowing this encourages me and my family to invite Zuzana back to
Canada to refeed Martin.

Â
Because of the grace Martin has shown my family and his willingness to
get over his eating disorder, we would be more than willing to cover her
expenses in Canada. She will be residing with Mr. Vasil in his flat as a
primary care-giver.

After Zuzana’s arrival to Canada, Martin will be placed back on salary at
$2,500.00 per month. Any additional money needed by Zuzana will be
granted to her by me.

We are confused as to which visa she should be applying for as pertaining
to the care of Mr. Vasil. The treatment process may take anywhere from 3
to 6 months. [reproduced as written]

[283] There was a significant dispute between the parties about the genesis of this letter.
[284] Mr. Vasil testified that Mr. Mongovius wrote the letter without his input. He
further testified that he did not see the email before it was sent. If he had, he would have
asked for a lot of changes. Mr. Vasil testified that, if he had input into the letter, he
would not have mentioned his eating disorder, or said that Zuzana might act as his
caregiver. He testified that he wanted to leave Canada, not stay. Finally, while he agreed
with the statement in the letter that he had been employed by Mr. Mongovius for five
years, and the salary agreement of $2,500 per month, he disagreed with the implication
that he was not receiving $2,500 per month at that time. He also disagreed with the
comment that he was making minimal wages because of his current medical condition,
and that he “volunteered” his time at work when he was able.
[285] Mr. Mongovius testified that the letter was dictated by Mr. Vasil to him, and that
his only contribution was to change the grammar. He testified that Mr. Vasil emphasized
that he should mention “anorexia nervosa” in the letter. The purpose of the letter was to
facilitate Zuzana getting a Visa. Mr. Mongovius testified that there was lots of
exaggeration, and that he did embellish. He wanted Zuzana to be able to get her Visa,
and so he hoped to show that she would have some security when she came and would
not be living off the government. He testified that the $2,500 per month was Mr. Vasil’s
concoction.
[286] It was put to Mr. Mongovius in cross-examination that he was aware that he was
writing a document for a formal government process, and that it was important to be
accurate. He shrugged, and replied that he really didn’t take it that seriously, and that the
important issue was to get Zuzana a Visa so that she could come and stay with Mr. Vasil.
I find this evidence indicative of Mr. Mongovius’ approach towards his correspondence
with various agencies and towards the truth in general: in essence, that the ends justify
the means, and that some exaggeration or misrepresentation is not significant in the
service of obtaining the ultimate goal. I am reinforced in this view by Mr. Mongovius’
further testimony that he was not concerned that there were inaccuracies in the letter
because “it was nice he was in love … it was the greatest thing that could have
happened”.
[287] Zuzana subsequently informed Mr. Mongovius that her application for a new Visa
had been refused.
[288] The parties agreed that the refusal of Zuzana’s Visa strengthened Mr. Vasil’s
resolve to return to Slovakia. Mr. Mongovius testified that Mr. Vasil wanted to wait until
the weather was warmer. He tentatively decided on early spring: March or April. Mr.
Mongovius assisted him by researching fares during that period.

What Hours and Days did Mr. Vasil Work During this Period?

[289] For the period of mid-May 2005 to January 2006, there are two documentary
sources that shed some light on the days and hours that Mr. Vasil worked. These include
a summary calendar page from Mr. Mongovius’ 2005 daytimer, and records from Mr.
Vasil’s medical providers relating to the dates of his medical appointments.
[290] First, Mr. Mongovius identified a summary calendar page from his 2005 daytimer.
This document indicates cash paid to Mr. Vasil from July to December 2005. Mr.
Mongovius testified that the document gives an indication of the days on which Mr. Vasil
worked, as he gave Mr. Vasil cash almost every day he worked.
[291] With respect to how the document was created, Mr. Mongovius testified that,
initially, he would write the amount he gave to Mr. Vasil each day on the corresponding
date page in his daytimer. He then, sometime after the fact, transposed the amount from
the date page to the summary calendar. There were some discrepancies identified during
the course of Mr. Mongovius’ evidence but, in general, the summary page reflected the
amounts recorded on the specific date pages.
[292] According to the summary calendar, the amounts which Mr. Mongovius paid to
Mr. Vasil generally ranged from $10 to $30 on each day they were paid, and the days per
week on which money was paid ranges from two to five. However, where Mr. Vasil is
recorded as working three days a week or less, it is always on weeks where the shop was
closed on two or more working days. On instances where there is a notation indicating
that the store would be closed, there is sometimes a greater amount left for Mr. Vasil,
$100 on one occasion and $550 right before Christmas. Mr. Mongovius denied that these
additional amounts were in recognition of work Mr. Vasil would perform while Mr.
Mongovius was away.
[293] Mr. Vasil disagreed with the amounts listed in Mr. Mongovius’ daytimer, and
noted that the record did not always accord with the days he was working or not working.
First, Mr. Vasil testified that there were times that he went to work when Mr. Mongovius
was not there (for example August 10-17 – when Mr. Mongovius took his summer
vacation, and December 16-31 – when Mr. Mongovius took his Christmas holiday).
[294] Second, Mr. Vasil testified that, on days that he had medical appointments, he did
not go to work. Thus, the records from Mr. Vasil’s medical providers relating to the
dates of his medical appointments are relevant. These records indicate that Mr. Vasil
usually had medical appointments every two weeks, normally on Tuesdays.
[295] The two types of documents are not entirely consistent with each other: that is,
there are several days on which Mr. Vasil had medical appointments on which he is also
marked as working in Mr. Mongovius’ daytimer. Nevertheless, on all the evidence
before me, I find that the records provided by Mr. Mongovius provide the closest
approximation of the days worked by Mr. Vasil.
[296] I come to this conclusion because, although the document was produced by Mr.
Mongovius, the pattern recorded in it is essentially in accordance with Mr. Vasil’s
testimony as it relates to the frequency with which he came to work. The only area of
significant disagreement between Mr. Vasil’s testimony and the daytimer records relate
to periods of time during which Mr. Mongovius was not in the store.
[297] In this regard, I accept that Mr. Vasil came to the shop and performed work on
some of the days that the shop was noted as being closed and Mr. Mongovius was not
present. Mr. Mongovius did not seriously dispute that this had occurred, but he did
dispute that there was an expectation that Mr. Vasil would be paid for such work.
[298] With respect to these periods, I prefer Mr. Vasil’s evidence that he would come in
and work in the shop while Mr. Mongovius was not present. Mr. Mongovius did not
dispute Mr. Vasil’s evidence in this regard, although he did dispute the notion that Mr.
Vasil should be paid for such work.

e. January to March 2006

Remuneration

[299] Mr. Mongovius and Ms. Burrows testified that there was a change in Mr. Vasil’s
pay arrangements in January 2006. Mr. Vasil denied any such change.
[300] Mr. Mongovius testified that from January 2 to 8, 2006, Mr. Vasil was paid under
the March 2004 agreement (that is, formally $75 per week, although in reality, whatever
money Mr. Mongovius gave him at the end of each work day). After that, there was a
new agreement. Later in his evidence, Mr. Mongovius testified that the arrangement was
entered into on January 14, but that Mr. Vasil was paid retroactive to January 9.
[301] Mr. Mongovius testified that Mr. Vasil approached him for a pay raise in January
2006. Mr. Vasil told him that he needed more money because he was going to Slovakia,
and if he did not receive more money he would quit. Mr. Mongovius testified that Mr.
Vasil wanted to accumulate as much money as possible in order to facilitate his move to
Slovakia.
[302] Mr. Mongovius first testified that the agreement was that Mr. Vasil would be paid
$1,500 per month. Further, instead of paying the salary to Mr. Vasil on a monthly basis,
he would pay it to him in a lump sum just prior to Mr. Vasil leaving for Slovakia. Mr.
Mongovius testified that the $1,500 was a number that Mr. Vasil threw out, and that he
agreed to it.
[303] Mr. Mongovius testified that he warned Mr. Vasil that the arrangement could
jeopardize his social assistance benefits, but Mr. Vasil did not care. His mind was set
because he was going to Slovakia. Mr. Mongovius testified that he agreed to this
arrangement because he wanted to help Mr. Vasil return to Slovakia.
[304] Mr. Mongovius subsequently gave somewhat different testimony about the
specifics of the agreement. He stated that the agreement was that he would pay Mr. Vasil
$15 per hour for the hours he worked, up to five hours (or $75) a day. Mr. Vasil was
never to receive more than $75 per day. Mr. Mongovius testified that this added up to
$375 per week, or $1,500 per month.
[305] In cross-examination, Mr. Mongovius stated that he could not afford to pay Mr.
Vasil this amount on an ongoing basis, but felt that he could for a short period before Mr.
Vasil left for Slovakia.
[306] Mr. Mongovius testified, however, that he continued to give Mr. Vasil cash each
day that he worked, and that the amount of cash was whatever Mr. Vasil asked for;
usually between $10 and $30. This testimony is substantially corroborated by the
summary calendar page from his 2006 daytimer.
[307] Ms. Burrows also gave evidence about the new arrangements that Mr. Vasil and
Mr. Mongovius entered into in January 2006. She testified Mr. Mongovius advised her
that he had agreed to pay Mr. Vasil $15 per hour.
[308] Mr. Vandebeek also testified that, in the period leading up to the termination of
Mr. Vasil’s employment, Mr. Vasil started confiding concerns about his finances to Mr.
Vandebeek. Specifically, Mr. Vasil started to complain that he was not being paid what
he was worth. In cross-examination, Mr. Vandebeek agreed that this was likely in
December 2005 or January 2006.
[309] As outlined above, Mr. Vasil denied that he discussed any change in his
remuneration.
[310] The pay records support the assertion that there was a change in the pay
arrangements. The records are not without difficulty, however. This is because they are
not contemporaneous, and were not created until after Mr. Vasil’s termination. In
addition, Mr. Mongovius’ evidence with respect to the nature of the arrangement was not
consistent.
[311] However, despite my concerns with some of the evidence before me, I find, on a
balance of probabilities, that the parties entered into a new arrangement in January 2005.
This is consistent, in particular, with Mr. Vandebeek’s testimony that Mr. Vasil was
becoming concerned about his wages during this time period. It is also consistent with
Ms. Burrows’ testimony about her understanding of the arrangements. Finally, it is also
consistent with Mr. Vasil’s testimony that he wanted to have some money saved when he
left for Slovakia.

What Hours and Days did Mr. Vasil Work?

[312] For this period of time, there is relatively little dispute about Mr. Vasil’s days of
work. The employment records provided by the respondents indicate that Mr. Vasil was
working regularly during this time period (January 9 to March 15), on average five days a
week. Generally, one of those days would be a half day.
[313] There is more dispute about the hours Mr. Vasil worked, as the records provided
by the respondents indicate that he never worked more than five hours a day, while Mr.
Vasil strongly disagrees with this assertion. The inconsistency is reconciled, in part,
through Mr. Mongovius’ testimony that his understanding of the arrangement was that
Mr. Vasil was to be paid $15 per hour, to a maximum of $75 per day (or five hours). If
this was the maximum for which Mr. Vasil was to be paid, there would be no need for
Mr. Mongovius to record hours in excess of this maximum.
[314] On all of the information before me, I find that Mr. Vasil worked more than five
hours a day during this time period. I note, in particular, that in July 10, 2006
correspondence to the Employment Standards Branch, Mr. Mongovius asserted that Mr.
Vasil averaged six to seven hours of work each day he worked.
[315] At various points in his testimony, Mr. Mongovius agreed with this estimate for
the later period of Mr. Vasil’s employment, agreed that it was an accurate average
throughout Mr. Vasil’s employment, and rejected the assertion that it was an accurate
estimate at all. Although Mr. Mongovius’ testimony with respect to this estimate was not
consistent, I find that it is an accurate estimate, at least as it relates to the period from
January to March 2006.
Relationship between the Parties

[316] While the parties disagree about the pay arrangements in 2006, they agree that
relations between them were deteriorating.
[317] In this regard, Mr. Vasil testified that he was becoming “more and more bitter”.
He stated that he repeatedly asked for his cheque, and his pension: “got my cheque?
Where’s my pension?” He stated that by this time, he had had enough.
[318] Mr. Vasil testified that Mr. Mongovius’ response would invariably be that Ms.
Burrows was working on it.
[319] Mr. Mongovius did not agree that the changes that he noted in Mr. Vasil related to
any concerns about pay. He testified that there was only one discussion about Mr. Vasil’s
pay: in early January when he agreed to pay Mr. Vasil more. In addition, there was only
one mention of the pension issue, and this was earlier than January 2006, although Mr.
Mongovius did not recall precisely when.
[320] Nevertheless, Mr. Mongovius agreed that relations between him and Mr. Vasil
were becoming increasingly strained.
[321] In addition, Mr. Vasil’s behaviour in general was becoming more unpredictable.
In this regard, Mr. Mongovius and Mr. Vasil both testified about an incident that occurred
in January or February 2006. Police officers on bicycles followed Mr. Vasil into the
shop. Mr. Mongovius testified that Mr. Vasil ran into the shop, very agitated and
repeating “fucking pigs, fucking pigs”. The police officers followed Mr. Vasil into the
store, and Mr. Vasil shouted at Mr. Mongovius to get their badge number. Mr.
Mongovius told Mr. Vasil to go upstairs while he dealt with the police. Mr. Mongovius
testified that he talked to the officers; they reported that they were on patrol, and that Mr.
Vasil had given them the finger. They followed him to the shop to see what was going
on. Mr. Mongovius said that he talked to the police about Mr. Vasil – that he had a
disability. At that point Mr. Vasil came downstairs again, yelling, “fucking pigs – get
their badge number”. Mr. Mongovius went outside with the police officers, got their
cards, badge numbers, confirmed that Mr. Vasil was employed by him, and they left.
[322] Mr. Vasil agreed that this incident occurred, and noted that his PTSD was
triggered by run-ins with the police. When this happens, his body starts shaking, and he
loses concentration and awareness of what is going on. Sometimes he can’t recall the
incidents afterwards.
[323] Ms. Fuchs also testified that Mr. Vasil was becoming more unpredictable in the
days leading up to his termination. She attributed this, in part, to his plans to return to
Slovakia and the stress that those plans were creating.

Hiring of other Employees

[324] Mr. Vasil’s stress also seemed to relate to the presence of new people in the store,
starting in February 2006. Mr. Mongovius knew by this time that Mr. Vasil was planning
to return to Slovakia in April, and was trying to find an employee who could replace him.
[325] The first such individual was Edwin Vega, who had previously done some casual
work for Mr. Mongovius. Mr. Mongovius testified that approximately 2-3 weeks before
Mr. Vasil’s termination, he talked to Mr. Vega about steadier employment. Mr. Vega
indicated that he was interested, and he came in to do some work.
[326] Mr. Vasil and Mr. Vega did not get along.
[327] Mr. Vasil testified that he was supposed to be training Mr. Vega, but that Mr.
Vega did not seem to want to work. He stood around with his hands in his pockets, and
Mr. Vasil told him to go back and see Mr. Mongovius.
[328] Mr. Mongovius testified that he was standing with Mr. Vega in the warehouse in
the back of the shop, preparing to unload pallets. Mr. Vasil went up to Mr. Vega and
said, “what you be doing there standing with your hands in your pockets”. Mr.
Mongovius testified that this comment came out of nowhere, and that he and Mr. Vega
were both startled. Mr. Vega subsequently told Mr. Mongovius that he could not work
with Mr. Vasil, and so Mr. Mongovius had to find someone else.
[329] Mr. Mongovius then asked his brother-in-law, Jeff James, if he was interested in
the position. Mr. James indicated that he would be interested. Mr. Mongovius testified
that Mr. James’ first day of work was March 15.
6. Termination of Employment
[330] Mr. Mongovius testified that, on either March 14 or 15, when Mr. Vasil came in
to the shop in the morning, he had been on the phone talking to a travel agent. He told
Mr. Vasil that he had good news and could get him a good fare to Slovakia. However,
this meant that Mr. Vasil had to decide if he really wanted to go or not. Mr. Mongovius
testified that he thought Mr. Vasil would be really happy, but he wasn’t.
[331] Mr. Vasil denied that he had any conversation with Mr. Mongovius about a plane
ticket to Slovakia on this day.
[332] It does appear from the evidence that Mr. Vasil was making plans on his own to
leave for Slovakia. Specifically, the Ministry file included an airline itinerary dated
March 7, 2006, indicating that Mr. Vasil was scheduled to depart on April 25, 2006.
There is also a notation in the History Report that Mr. Vasil provided that itinerary to the
Ministry on the same day.
[333] Mr. Vasil denied that he had purchased an airline ticket to Slovakia at this time,
and it is not clear from the documents whether the itinerary was finalized and paid for or
whether it was simply an option that Mr. Vasil was considering. In any event, it is clear
that Mr. Vasil had made some preparations for a trip to Slovakia in April 2006.
[334] In any event, on the morning of Wednesday March 15, Mr. James arrived at the
store. It was the first day that Mr. Vasil had met him.
[335] I note that, while Mr. James testified that he had been working at the shop for one
or two days prior to March 15, Mr. Mongovius and Mr. Vasil agree that March 15 was
his first day at work. I accept Mr. Mongovius’ and Mr. Vasil’s evidence in this regard.
[336] Mr. Mongovius, Mr. James and Mr. Vasil all testified that, on March 15, a large
shipment was due to arrive at the shop. All three men were working to prepare the
warehouse in anticipation of the shipment.
[337] Mr. Vasil testified that Mr. Mongovius was outside. He went towards the door to
ask Mr. Mongovius when the truck was showing up. However, Mr. Mongovius was
talking on the phone, and Mr. Vasil heard him say, “I’m tired of his dirty long hair – I’m
getting rid of him”. Mr. Vasil assumed that this was a reference to him, and was upset.
He did not, however, confront Mr. Mongovius.
[338] Slightly later that day, Mr. Vasil was in the warehouse. He testified that there
were gaming chairs in the middle of the warehouse, and he was moving them to try to
clear the middle of the warehouse, readying it for the further shipment. Mr. Mongovius
and Mr. James were moving plasma TVs and speaking to each other. As Mr. Vasil was
moving the last chair, Mr. James walked towards him. When Mr. James reached Mr.
Vasil, Mr. Vasil explained that he was moving the chair. Then Mr. Mongovius stormed
over to him, said “how dare you insult my brother-in-law – get out!”. Mr. Vasil testified
that Mr. Mongovius grabbed him by the arm and started pulling him. Mr. Vasil testified
that he pulled away, went into Mr. Mongovius’ office, and grabbed his passport. He told
Mr. Mongovius that he was going to go to Employment Standards, and asked for his
cheques.
[339] Mr. Mongovius has a different version of the events of that day. He testified that
Mr. Vasil said the same thing to Mr. James as he had to Mr. Vega: “what you be doing
standing there with your hands in your pockets?”. Mr. Mongovius was upset that Mr.
Vasil was acting like this towards his brother-in-law, and he asked Mr. Vasil to please not
talk to him like that. Mr. Mongovius testified that Mr. Vasil then started “flipping out”:
yelling and swearing, kicking and throwing boxes. Mr. Mongovius testified that he had
never seen Mr. Vasil like that before. He wanted Mr. Vasil to calm down so he asked
him to take a break and go outside and have a cigarette.
[340] Mr. Vasil went outside and had a quick smoke outside, but he was still upset when
he returned. He stood close to Mr. Mongovius and put his face close to Mr. Mongovius’.
He twice asked Mr. Mongovius if he was firing him. Mr. Mongovius testified that Mr.
Vasil’s eyes got very big as he was saying this. Mr. Mongovius responded that he was
not firing him, but that he wanted Mr. Vasil to calm down. Mr. Vasil asked again if Mr.
Mongovius was firing him, and Mr. Mongovius told him to go home, saying that they
would talk the following day. Mr. Mongovius testified that Mr. Vasil wouldn’t leave, so
he told Mr. Vasil that he was going to phone the police. Mr. Mongovius then went inside
to his office, and Mr. Vasil came in behind him. He went to Mr. Mongovius’ desk and
said that he was going to cut himself. Mr. Mongovius told him to go home. Mr. Vasil
then went in to Mr. Mongovius’ office, took his belongings, including his passport, and
left the store.
[341] In cross-examination, Mr. Mongovius stated that Mr. Vasil had completely
“freaked out” and acted “like a madman”. He testified that he was extremely taken aback
by Mr. Vasil’s actions. He had seen him swear before, but this occasion was different.
He had been right in Mr. Mongovius’ face, and it was like dealing with a different person.
[342] Mr. James also testified about the events of that day. His evidence largely
corroborated Mr. Mongovius’.
[343] Mr. Vasil denied that he made the hands in the pocket comment to Mr. James,
and stated that he had made it only to Mr. Vega. Mr. Vasil also stated that the only boxes
in the warehouse were plasma TV boxes, and that he would have hurt his feet if he had
tried to kick them.
[344] Mr. Mongovius testified that he was very upset, but also worried about Mr. Vasil.
He phoned the Reach clinic and told the receptionist that Mr. Vasil was very agitated. He
testified that he had never seen that side of Mr. Vasil. In his daytimer for that day, Mr.
Mongovius made the notation: “Martin went NUTS today”.
[345] Mr. Mongovius initially testified that he was not sure what he was going to do
about the situation. He stated that he did not make the decision to terminate Mr. Vasil’s
employment until the following day, after he had unsuccessfully attempted to talk to Mr.
Vasil. He then contacted Ms. Burrows and asked her what documents had to be prepared
to effect the termination.
[346] It was put to Mr. Mongovius in cross-examination that his daytimer indicated that
he had contacted Ms. Burrows the day of the incident. He agreed, and stated that he was
confused about what to do. He called Ms. Burrows to find out what the requirements
were if he decided to terminate Mr. Vasil’s employment. He was thinking about
termination, but he had to talk to Ms. Burrows.
[347] Mr. Mongovius then testified that he gave it some thought after Mr. Vasil had left
and felt that he could not have Mr. Vasil working there with such behaviour, especially
when he was in the process of training another employee. It was too much of a worry.
He testified that there was no alternative to termination, because of Mr. Vasil’s
behaviour. He felt that their relationship had been deteriorating for some time, and that
this outburst was the last straw.
[348] Notably, when Mr. James was asked in cross-examination whether he anticipated
that Mr. Vasil would be terminated, he replied that he did not think that he would be. He
did state that he felt Mr. Vasil owed himself and Mr. Mongovius an apology.
[349] Mr. Mongovius stated that he phoned Ms. Burrows on March 15 and told her
about the incident. He told her that he intended to fire Mr. Vasil, and asked her to figure
out what was owed to him. The following day, Ms. Burrows gave him the termination
papers and the severance pay. He, in turn, went to Mr. Vasil’s place to give them to him.
However, the door was locked. He went to see Mr. Vasil’s landlord and left them with
him. The landlord gave them to Mr. Vasil that day.
[350] The package given to Mr. Vasil included a termination letter, dated March 15,
2006, which stated:
Your conduct these last few weeks, particularly today, has left me no
choice but to terminate your employment with this company.

Please find included with this letter of dismissal a record of employment,
as well as a summary regarding your wages and severance pay.

[351] Included with the termination letter was an ROE for Mr. Vasil and payment
advice forms for January, February and March 2006, which indicated the following hours
worked and remuneration:
a) January 2006: 77.5 hours at $15 per hour, with withholdings, for a net of
$1,138.73;
b) February 2006: 90.5 hours at $15 per hour, with withholdings, for a net of
$1,235.85;
c) March 2006: 47 hours at $15 per hour, with withholdings, for a net of $697.63;
and
d) March 2006: Severance pay in the net amount of $866.91, said to represent three
weeks’ wages.

[352] In addition, there was a sheet outlining the amounts which Mr. Mongovius owed
to Mr. Vasil, as wages, and the amounts which Mr. Mongovius claimed Mr. Vasil owed
to him, including amounts sent to Zuzana, the amount paid to reclaim Mr. Vasil’s
passport, and cash paid to Mr. Vasil on a daily basis (from February 20 onward only).
This sheet indicated that, after balancing these amounts against each other, Mr. Vasil
actually owed Mr. Mongovius $3.01.
[353] In cross-examination, Mr. Mongovius agreed that he was aware that Mr. Vasil had
a number of medical conditions and was under the care of a physician. He agreed that
Mr. Vasil was under an extraordinary amount of stress at that time, with upcoming
preparations for his trip to Slovakia, and his uncertain relationship with Zuzana.
[354] It was put to Mr. Mongovius that, given his knowledge of the situation, it may
have been more appropriate for him to ask Mr. Vasil to take some days off work, and to
encourage him to visit his doctor, rather than terminating his employment. Mr.
Mongovius responded that, given what had happened, he felt their relationship was over.
He could not know what Mr. Vasil would do next. He felt that he was a patient man, but
he had reached the end of his patience.
[355] It was put to Mr. Vasil in cross-examination that, in the time leading up to his
termination, he was having conflicting thoughts about Zuzana and what their future
together might be. He agreed. It was then put to him that his confusion about this
situation may have led him to being more difficult to deal with. He denied this
suggestion, but on all of the evidence before me, including Mr. Vasil’s own, I find that he
was under a significant amount of stress during the time leading up to the termination,
and that it had an impact on his behaviour both in the workplace and more generally.
[356] On all of the evidence before me, I accept Mr. Mongovius’ and Mr. James’
version of the events leading up to the termination of Mr. Vasil’s employment. I find that
Mr. Vasil was experiencing a high level of stress and anxiety at the time in question, and
that this caused him to “act out”, in particular in his comment to Mr. James. When Mr.
Mongovius attempted to intervene to assist Mr. James, Mr. Vasil’s agitation escalated,
leading to the altercation.
7. Aftermath of the Termination
[357] Mr. Vasil testified that Mr. Mongovius phoned him a few days after the
termination and wanted to work some things out. Mr. Mongovius suggested that they
meet. He told Mr. Vasil that they had an agreement: $15 per hour. Mr. Vasil testified
that he said “whatever” and hung up.
[358] Mr. Mongovius agreed that he contacted Mr. Vasil. It was not his intention to
rehire Mr. Vasil, but he did want to “bury the hatchet”, and attempt to ensure that there
were no hard feelings between them. Mr. Vasil did not want to meet, and so they did not.
[359] Shortly after the termination, in an entry in the History Report dated March 28,
2006, there is a notation that Ms. Fuchs was advised by Mr. Vasil’s doctor that he was in
the VGH psych ward. It appears that Mr. Vasil was briefly admitted to VGH from March
25 to 28, 2006.
[360] Also following the termination, Mr. Vasil’s relationship with Zuzana ended.
[361] Mr. Vasil testified that he was very distraught at the time of his termination, and
continues to be very upset. He felt and continues to feel that everything is all messed up
for him. He feels that Mr. Mongovius betrayed him; while saying he was trying to help
Mr. Vasil, he was doing the opposite.
[362] Mr. Vasil was, and continues to be, very angry at Mr. Mongovius. He feels that
Mr. Mongovius cheated him out of a significant amount of wages, and took advantage of
him. As a result, Mr. Vasil took a number of steps against Mr. Mongovius, including
filing an Employment Standards complaint, filing a Workers Compensation claim
relating to some of the injuries that he said he sustained while working for Mr.
Mongovius, and filing this human rights complaint.
[363] As a result of the Employment Standards complaint, the Director of Employment
Standards found that Mr. Vasil was entitled to additional wages, vacation pay, statutory
holiday pay and accrued interest in the amount of $4,342.90. In addition, the Company
was assessed a $2,000 fine for contraventions of the Employment Standards Act (the
“Act”).
[364] The wages were assessed on the basis of the six months preceding the termination
of Mr. Vasil’s employment, as this was the limit imposed by the Act. Mr. Vasil was
found not to be entitled to compensation for length of service, as the Director determined
that his termination was for just cause.
[365] Mr. Vasil did not agree with the Determination. He argued that he worked more
hours than found by the Director, and that his termination was not for just cause. He
appealed the Determination to the Employment Standards Tribunal. That Tribunal
confirmed the Director’s decision. Mr. Vasil’s further application for reconsideration
was denied.
[366] Both Ms. Fuchs and Ms. Johnson testified about Mr. Vasil’s demeanour after his
termination and while he was going through the Employment Standards process. Ms.
Johnson testified that it appeared to her that Mr. Vasil was getting very agitated and
acting quite out of control. Ms. Fuchs also testified about Mr. Vasil’s demeanour around
this time, and she stated that he had become increasingly verbally abusive during his trips
to the office. Ms. Fuchs testified that his behaviour at this time of stress in his life was
similar to his behaviour when he returned from Victoria in 2003, and had problems
finding a place to live. In times of stress, it was like a different personality would show
itself.
[367] Ms. Fuchs also testified that Mr. Vasil was being triggered by a number of
different stressors: the termination, and the Zuzana/Slovakia issue in particular. He had
difficulties not just in his relationship with the Ministry, but also with his Doctor and
others. She testified that things were just collapsing for Mr. Vasil on every side, and he
was reacting by making it impossible for people to continue to support him.
[368] Mr. Vandebeek testified that the termination had an extreme impact on Mr. Vasil
He was distraught, manic, self-flagellating, he wanted to hurt himself, and he had
outbursts with people that would not usually have occurred. He testified, further, that
Mr. Vasil was worried all the time about finances, social assistance, disability, and that
sometimes he had no money for food.
[369] It is clear that Mr. Vasil was very agitated in the time surrounding the termination
of his employment. He had issues with the Ministry, with his doctor, and with the
Compassion Club.
[370] Mr. Vasil testified that, if he had not been terminated, he would have been in
Slovakia. He testified that he would have spent a period of time there living in a hospital,
recovering from anorexia.
[371] Mr. Vasil testified that he planned to work until it was time for him to leave. He
stated that Mr. Mongovius knew that Mr. Vasil was not likely to come back. He planned
to open a recycling facility and Mr. Mongovius was going to help.
[372] However, when he was fired by Mr. Mongovius it freaked him out and confused
him. He felt like he was screwed. He could not go to Slovakia; he had to stay in Canada
and chase Mr. Mongovius for the money that was owed him.
[373] Mr. Vasil testified that he still wants to return to Slovakia once the pension issue
is resolved. He states that waiting has caused him a lot of anxiety.
[374] Mr. Vasil also testified that coming to the human rights hearing was difficult for
him. He states that it was stressful, and that he could not eat and felt pukey. He could
not sleep, and suffered from a great deal of anxiety.
C. Credibility Assessments
[375] Above, I have outlined the often conflicting evidence before me, and have come
to a variety of findings of fact in the course of outlining that evidence. These findings of
fact are summarized below. In coming to these findings, I have been mindful of the
entirety of the evidence before me. In addition, and given the conflicting evidence before
me on a number of the issues central to the complaint, I have been required to make some
findings of credibility.
[376] In general, I find that all of the witnesses testified to the best of their recollection
and abilities. Despite this, I have significant concerns with respect to the reliability of
much of the evidence before me, and in particular the evidence of Mr. Vasil and Mr.
Mongovius.
[377] Mr. Vasil is a man with significant mental health issues. Despite these
difficulties, he gave testimony both in direct and in cross-examination over the course of
five days. His evidence was generally responsive to the questions asked.
[378] The matters at issue in the complaint were crucially important to Mr. Vasil. He
demonstrated a strong ability to recall the dates on which events occurred, and had a
better grasp of the time line and chronology of events than did Mr. Mongovius. In many
cases, Mr. Vasil’s testimony with respect to dates was substantiated by documents that
were disclosed by Mr. Mongovius during his cross-examination. They were therefore
documents that Mr. Vasil had not seen prior to giving his own evidence.
[379] For example, Mr. Vasil testified that he started paid employment with Mr.
Mongovius prior to September 2000. Mr. Mongovius denied that this was the case.
However, documents produced by Mr. Mongovius in his cross-examination corroborated
Mr. Vasil’s testimony in this regard. Mr. Vasil’s evidence regarding the period of time
that Mr. Kassam worked for Mr. Mongovius was similarly supported by documents
produced by the respondents after Mr. Vasil testified.
[380] However, it was also clear that Mr. Vasil, while quite intelligent in many respects,
sometimes had difficulty understanding how things might work in the world. While he
had very specific beliefs about how his finances were being handled, in particular by the
Ministry, there was often no foundation for these beliefs. I find that Mr. Vasil’s
perceptions of how things were, while honestly held, were not always accurate. I
therefore treat his evidence with some caution where it is not otherwise corroborated.
[381] I also treat Mr. Mongovius’ evidence with caution, though for different reasons.
[382] Mr. Mongovius presented as an individual who has the best of intentions, but also
has a tendency to treat the truth as a tool to achieve the ends he desires. I find that this
tendency was particularly pronounced with respect to his interactions with governmental
agencies. Mr. Mongovius was not accurate in his correspondence relating to Zuzana’s
Visa, embellishing the information in an attempt to get that Visa approved. Similarly, he
conceded that he encouraged Mr. Vasil not to report additional payments to social
assistance on at least one occasion.
[383] This tendency was clearly illustrated by his evidence relating to the letter that he
received from Mr. Vandebeek in March 2003. Mr. Mongovius first testified that he
viewed the letter as “gospel”. However, as his testimony progressed, it became clear that
Mr. Mongovius did not abide by the terms of the letter in any significant way.
[384] In addition, Mr. Mongovius’ recollection of the events and dates of Mr. Vasil’s
employment was far from sound. For example, Mr. Mongovius testified that Mr. Vasil
started being paid in September 2000, which was later demonstrated to be inaccurate.
Similarly, he testified that Mr. Vasil left for Victoria in 2001, when all of the
documentary evidence clearly indicated that this did not occur until 2002. Often, Mr.
Mongovius’ recollection was based solely on the documentary evidence. For example,
he initially testified that he started paying Mr. Vasil in September 2000, because that was
what was indicated by the formal payroll documentation. However, this assertion was
later proven to be incorrect, based on documents provided by Mr. Mongovius in the midst
of his cross-examination.
[385] Finally, Mr. Mongovius’ evidence would sometimes shift during the course of his
examination and cross-examination. This occurred, for example, with respect to his
letters to the Employment Standards Branch in which he provided an estimate of Mr.
Vasil’s hours of work. At various points in his testimony, Mr. Mongovius adopted this
estimate for a period of Mr. Vasil’s employment, adopted the estimate for the entire
duration of Mr. Vasil’s employment, and rejected the estimate. Thus, it was difficult in
some instances to determine what his evidence actually was.
[386] For these reasons, I find that I cannot consistently rely on either the evidence of
Mr. Vasil or that of Mr. Mongovius. Rather, in making my findings of fact, I have relied
on the whole of the evidence before me, and preferred independent documentary records,
such as the History Report, where available.
D. Summary of Findings of Fact
[387] Above, I have reviewed the extensive evidence before me with respect to the
various periods of Mr. Vasil’s employment. To summarize, and for the reasons outlined
above, I find the following on the balance of probabilities:
a) Mr. Vasil worked for Mr. Mongovius for a period of time before he started being
paid for his work. This period started sometime prior to May 1999. However, on
the evidence before me, it is not possible to determine the nature or frequency of
the work Mr. Vasil performed during this period.
b) The Early Period started in May 2000, and continued to July 2001. During this
period, Mr. Vasil was to be paid $10 per hour. He worked four days a week until
January 2001, and four and a half days a week thereafter. He worked six to seven
hours a day. As noted above, this amounts to roughly 112 hours per month prior
to January 2001, and 128 hours per month thereafter.

Â
c) Mr. Vasil was also performing approximately ten hours per month of repair work
at home during the Early Period, for which he was not paid.
d) With the exception of the work he performed at home, I cannot find, on a balance
of probabilities, that Mr. Vasil was being paid inappropriately during this period.
e) Mr. Vasil resigned his employment in July 2001, not because he was dissatisfied
with the wages he was being paid, but because he anticipated entering into
treatment for his eating disorder.
f) With respect to the Disputed Period, Mr. Vasil returned to work for the
respondents for the period between March and July 2002. The terms and
conditions of his employment were the same as those in the Early Period, namely
that he was to be paid $10 per hour. He worked approximately the same number
of hours as he did during the Early Period.
g) Although there is no record of payments to Mr. Vasil during the Disputed Period,
he was paid in cash, as had been the case during much of the Early Period.
h) I cannot find that, at either this time or at any other time during his employment,
Mr. Vasil and Mr. Mongovius entered into an agreement under which Mr.
Mongovius agreed to pay Mr. Vasil $2,500 a month for the work he was
performing.
i) Mr. Vasil lived in Victoria from August 2002 to March 2003. After his return to
Vancouver, Mr. Vasil again started work for Mr. Mongovius in late May 2003.
j) In June 2003, Mr. Vasil was paid consistent with the earlier arrangement: $10 per
hour. From July 2003 to February 2004, there was an agreement between the
parties under which Mr. Vasil was paid $25 per day for each day he worked. Mr.
Mongovius also provided Mr. Vasil with an additional $10 each day for lunch.
On the evidence before me, neither of the parties considered this additional money
to be wages.
k) For the period from July 2003 to February 2004, the number of days that Mr.
Vasil worked are accurately reflected in the payroll documents submitted by the
respondents. I find that Mr. Vasil worked between six and seven hours each week
day that he worked, and four hours per day on Saturday.
l) Mr. Vasil also continued to perform repairs at home during this period, and I
estimate the work he performed at home to amount to ten hours per month.
m) In March 2004, Mr. Mongovius received a letter from Mr. Vanderbeek which
requested that Mr. Vasil be paid $75 per week. Mr. Vasil was not, in fact, paid
$75 per week, but was paid in cash at the end of each days’ work, in varying
amounts.
n) With respect to days and hours of work for the period March 2004 to April 2005,
these continued to be similar to the days and hours Mr. Vasil worked from
October 2003 to February 2004: approximately 16 days per month, and six to
seven hours per day.

Â
o) Mr. Vasil was away from work from mid-April to mid-May 2005. When he
returned to work, his hours of work increased. From July to December 2005, Mr.
Vasil’s days of work, and the amount of cash that Mr. Mongovius gave him each
day that he worked, are as outlined in the summary calendar provided by Mr.
Mongovius, with the exception below. The days and hours Mr. Vasil worked, and
the amount he was paid, from mid-May to July 2005 can be averaged from the
July to December information.
p) Mr. Vasil went into the shop and performed work even during times when Mr.
Mongovius was away on vacation, and these times would not be reflected in Mr.
Mongovius’ calendar. These periods of time include August 10-17, September
10-14, and December 16-31, 2005. Mr. Vasil worked approximately four days a
week during these periods.
q) Mr. Vasil worked six to seven hours a day on weekdays that he worked, and four
hours a day on Saturdays during this period, and he continued to perform work at
home for approximately ten hours a month.
r) Mr. Vasil and Mr. Mongovius entered into a new agreement in January 2006.
They agreed that Mr. Vasil would be paid $15 per hour for up to five hours of
work per day. The parties agreed that Mr. Vasil would not be paid for his hours
of work in 2006 until right before he left for Slovakia.
s) Mr. Mongovius continued to pay Mr. Vasil small amounts of cash each day
during this period, and these amounts are most accurately recorded in Mr.
Mongovius’ 2006 summary calendar from his daytimer.
t) In addition, the days Mr. Vasil worked are those recorded in the respondents’ pay
documentation. With respect to the hours, while the pay documentation indicates
that Mr. Vasil never worked more than five hours a day, this is inaccurate. Mr.
Vasil worked on average six to seven hours a day on weekdays during this period,
and four hours a day on Saturdays.
u) With respect to the termination of Mr. Vasil’s employment, I accept Mr.
Mongovius’ evidence, as corroborated by Mr. James.

VI ANALYSIS AND DECISION
[388] This complaint is brought pursuant to s. 13 of the Code, which provides, in part:
(1) A person must not

(a) refuse to employ or refuse to continue to employ a person,
or

(b) discriminate against a person regarding employment or any
term or condition of employment because of … physical or
mental disability…

Â
(4) Subsections (1) and (2) do not apply with respect to a refusal,
limitation, specification or preference based on a bona fide
occupational requirement.

[389] The legal burden is on Mr. Vasil to prove, on a balance of probabilities, that Mr.
Mongovius and the Company discriminated against him on the basis of his physical and
mental disabilities.
[390] The parties agree about the test which the Tribunal should apply to determine
whether Mr. Vasil established a prima facie case of discrimination. Namely, Mr. Vasil
must establish that:
a) he is disabled;
b) he suffered adverse treatment in his employment; and
c) it is reasonable to infer from the evidence that his disability was a factor in the
adverse treatment.

[391] In addition, and as outlined by the Tribunal in a number of cases, in order to
establish a prima facie case of discrimination there must be discrimination in a
substantive or purposive sense: Miller v. BCTF (No. 2), 2009 BCHRT 34, para. 15.
[392] It is not necessary that Mr. Vasil’s disabilities be the sole factor in the adverse
treatment, provided they are at least a factor.
[393] If Mr. Vasil establishes a prima facie case of discrimination, the evidentiary
burden shifts to the respondents to lead evidence of a non-discriminatory explanation for
their conduct or a bona fide occupational requirement (“BFOR”). British Columbia
(Public Service Employee Relations Commission) v. British Columbia Government and
Service Employees’ Union, [1999] 3 S.C.R. 3 (“Meiorin”) sets out three requirements that
an employer must demonstrate to justify its conduct:
a) The standard was adopted for a purpose or goal that is rationally connected to the
function being performed;
b) The standard was adopted in good faith in the belief that it is necessary for the
fulfillment of the purpose or goal; and
c) The standard is reasonably necessary to accomplish its purpose or goal, in the
sense that the respondent cannot accommodate persons with characteristics of the
complainant without incurring undue hardship.

Â
[394] In this case, there is little dispute that Mr. Vasil is disabled, although there is
disagreement about the extent of those disabilities. With respect to whether Mr. Vasil has
established a prima facie case of discrimination, the respondents put forward three main
arguments. First, that Mr. Vasil did not experience adverse treatment. Second, if he did,
there is no nexus between the adverse treatment and his disabilities. Third, if there is
such a nexus, his treatment was not discriminatory in a substantive or purposive sense.
[395] In addition, the respondents argue that, if I find Mr. Vasil has established a prima
facie case, they have demonstrated a BFOR for their conduct. In particular, the
respondents argue that they reasonably accommodated Mr. Vasil to the point of undue
hardship. I note in this regard that neither of the parties made submissions about any
“standard” that the respondents were applying with respect to Mr. Vasil, and that all the
submissions before me focussed on the issue of accommodation.
[396] For the reasons outlined below, I find that Mr. Vasil has established a prima facie
case of discrimination. In addition, I find that the respondents have not established a
BFOR.
A. Prima Facie Case
[397] As outlined above, there is no dispute that Mr. Vasil is a person with significant
disabilities.
[398] Further, although the respondents argue that there is no evidence that Mr. Vasil
experienced adverse treatment in his employment, I disagree.
[399] I accept that Mr. Vasil liked to work for the respondents, and that it was in many
ways a positive experience for him. Mr. Mongovius provided a flexible workplace that
worked well for Mr. Vasil and met his needs in a number of ways, in particular with
respect to flexible hours and relative autonomy.
[400] However, the evidence before me illustrates that Mr. Vasil also experienced
adverse treatment during his employment with Mr. Mongovius. In particular, in the
circumstances of the case, I find that the following constituted adverse treatment:
a) the respondents did not keep track of Mr. Vasil’s hours for work;

Â
b) the respondents did not provide payroll documentation that appropriately recorded
Mr. Vasil’s hours of work or the amounts that he was paid;
c) Mr. Vasil performed unpaid work at home with the knowledge of the respondents;
and,
d) for a significant period of his employment, Mr. Vasil was paid less than the
minimum wage provided for in the Act.

[401] In addition, Mr. Vasil’s employment was, ultimately terminated, which certainly
had an adverse impact on him. The respondents argue that Mr. Mongovius’ termination
of Mr. Vasil cannot be held to constitute adverse treatment simply because Mr. Vasil’s
job ended several weeks sooner than he intended. I disagree. While Mr. Mongovius and
Mr. Vasil both anticipated that Mr. Vasil would be leaving sometime in April to return to
Slovakia, they had not discussed an end date for his employment. Further, on his own
testimony, Mr. Mongovius was aware that Mr. Vasil wanted to work as much as possible
prior to his departure, in order to build up a nest egg that would provide him with
financial support in Slovakia. The termination of Mr. Vasil’s employment clearly had an
adverse impact on him.
[402] The next question which I must consider is whether there is a link between some
or all of these adverse effects and Mr. Vasil’s disabilities. For the following reasons, I
find that there is such a link.
[403] First, the fact that the respondents did not keep accurate records of Mr. Vasil’s
hours of employment and pay arrangements was a contravention of the Act that posed a
particular problem for Mr. Vasil. It was clear from his own testimony and the testimony
of both Ms. Johnson and Ms. Fuchs that Mr. Vasil had very little conception of money or
pay arrangements. Due to his disabilities he was significantly less able to keep track of
his own time than other employees would be.
[404] Second, Mr. Vasil performed a significant amount of work at home. This is borne
out by some of Mr. Vasil’s interactions with the police, in that they were suspicious of
him because he was in possession of electronic items. Mr. Mongovius conceded that he
was aware that Mr. Vasil was performing such work, but stated that he did not have to
pay Mr. Vasil for such work. Given Mr. Vasil’s limited appreciation of his rights, of
normal workplace practice, or of governing laws, allowing him to do such work at home
had the effect of taking advantage of him.
[405] Third, Mr. Mongovius paid Mr. Vasil almost exclusively in cash, and kept no
accurate records of the cash that was paid. This was disadvantageous for Mr. Vasil who,
because of his disabilities, was less able to keep track of funds being received on an
essentially ad hoc basis.
[406] Fourth, the respondents agreed to Mr. Vasil’s request, in July 2003, that he be
paid $25 per day; and in May 2004, that he be paid $75 per week. Given my findings
with respect to the hours worked by Mr. Vasil, this rate of pay is significantly below the
minimum wage provided for in the Act. The express reason for this pay arrangement was
that additional pay might interfere with Mr. Vasil’s disability benefits. Thus, Mr. Vasil’s
disability (which was the reason he was receiving disability benefits) was a key factor in
the arrangement.
[407] I also find that there is a link between Mr. Vasil’s termination and his disability. I
accept that Mr. Mongovius made the decision to terminate due to Mr. Vasil’s actions on
and leading up to March 15, 2006. These actions were the result of Mr. Vasil’s
disabilities: his increasing stress about his impending trip to Slovakia, run-ins with the
police, and discomfort with new people in the workplace led to irrational and angry
outbursts at work. Below, I will consider whether the respondents have established that
they had a BFOR for Mr. Vasil’s termination, but there is no doubt that the termination
was based, in part, on behaviours caused by Mr. Vasil’s disabilities.
[408] Finally, the respondents argue that, even if there was treatment that had an
adverse effect on Mr. Vasil, related to his disabilities, that treatment does not constitute
discrimination in the substantive sense. In this regard, they argue that Mr. Vasil would
not have been able to hold down a regular job, and was only able to work for Mr.
Mongovius because of the flexibility he provided. They note s. 42 of the Code, which
provides:
(1) It is not discrimination or a contravention of this Code to plan,
advertise, adopt or implement an employment equity program that

Â
(a) has as its objective the amelioration of conditions of
disadvantaged individuals or groups who are disadvantaged
because of race, colour, ancestry, place of origin, physical or
mental disability, or sex, and
(b) achieves or is reasonably likely to achieve that objective.

 

[409] They also argue that the respondents were, in essence, providing a “supported
work environment”, and that they were a “benevolent employer”.
[410] The respondents’ argument in this regard ignores the fact that there is a statutory
framework under the Code by which applications for recognition as a special program
may be made and approved by the Chair of the Tribunal. No such application was made
in this case. Similarly, it is not up to an individual employer to declare that it is providing
a “supported work environment” or that it is a “benevolent employer”. There was no
indication in the evidence before me that the respondents were considered to be providing
a supported work environment by the Ministry, or that there was ever any discussion in
that regard.
[411] The respondents were employing an individual who was affected by several
disabilities and who was, by nature of his disabilities, extremely vulnerable. There are
statutory provisions in place to protect individuals in such circumstances, including the
provisions of the Act, and the respondents failed to use or comply with those provisions.
[412] Further, it is not open to the respondents to argue that, because they did not intend
to discriminate against Mr. Vasil, there can be no discrimination in a purposive or
substantive sense. This specifically contradicts the clear provisions of the Code. In
particular, s. 2 of the Code specifically provides that discrimination does not require an
intent to contravene the Code.
[413] In addition, although there was certainly evidence that the respondents provided a
flexible and accommodating environment, there was no evidence that this
accommodation was solely directed at Mr. Vasil. Rather, Mr. Mongovius testified that
his approach to hours and work was flexible, and that he worked less in the summer so he
could enjoy the warmer weather. In addition, there was evidence that the respondents
had a variety of flexible arrangements with individuals performing repair services for
them (including Mr. Kassam and Mr. James), and that this was by no means limited to
Mr. Vasil.
[414] I also note that, some of the “flexibility” which is relied on by the respondents in
this regard led to some of the issues that were of concern, including lax and inaccurate
record keeping.
[415] Finally, while Mr. Mongovius testified that there were certainly challenges
involved in working with Mr. Vasil, he also testified that he was generally satisfied with
the work Mr. Vasil performed. He required a replacement for Mr. Vasil when Mr. Vasil
left his employment, which indicates that Mr. Vasil was performing work of value. The
replacement, Mr. Kassam, worked between 95 and 127 hours per month (during the five
month period for which any records are available), which is not inconsistent with the
number of hours I have found Mr. Vasil to have worked. In addition, Mr. Mongovius
testified that he preferred working with Mr. Vasil over working with Mr. Kassam, despite
the challenges which Mr. Vasil brought with him, and despite the fact that Mr.
Mongovius did not identify any particular areas of concern with respect to Mr. Kassam’s
work.
[416] Mr. Vasil performed work for Mr. Mongovius, and was paid a very low wage for
the work he performed. For a significant period of his employment, neither his hours nor
his pay were documented in any accurate manner. In addition, the appropriate deductions
were not taken from his income, which contributed to Mr. Vasil’s difficulties in applying
for a CPP disability pension.
[417] There was no reliable evidence before me which would indicate that the work was
not of value to Mr. Mongovius. In fact, there is evidence that the work was of value to
Mr. Mongovius, given that he paid Mr. Vasil $10 per hour during the Early Period, the
Disputed Period, and June 2003. He also rehired Mr. Vasil upon his return from Victoria,
and testified that he preferred working with Mr. Vasil over Mr. Kassam. Mr. Mongovius
also paid Mr. Vasil $15 per hour from January to March 2006.
[418] The respondents assert that their treatment of Mr. Vasil does not constitute
discrimination in a substantive sense. In particular, they note that at all times, their pay
arrangements with Mr. Vasil were in accordance with his requests.
[419] While I have found that the $25 per day, and later, $75 per week arrangements
arose from Mr. Vasil’s requests, this does not lead me to conclude that those
arrangements were not substantively discriminatory. In particular, there is no evidence
before me that Mr. Mongovius made any enquires with the Ministry, Mr. Vasil’s other
support workers, or other government agencies with respect to those requests, whether
the arrangements would be contrary to any statutory protections, or whether there would
be any other adverse impact on Mr. Vasil as a result of the agreement. This lack of
enquiry came despite the fact that Mr. Mongovius was aware of Mr. Vasil’s disabilities
and their impact on his ability to deal with his financial affairs. It also came despite the
fact that, on at least one occasion, Ms. Burrows raised the issue of minimum wage with
Mr. Mongovius.
[420] On all of the evidence before me, I find that the payment of minimal wages to Mr.
Vasil, which was grounded in his disability and disability status, constitutes
discrimination in a substantive sense.
[421] Similarly, terminating Mr. Vasil’s employment for a reason arising from his
disabilities also gives rise to discrimination in a substantive sense. I note that the
respondents argue that they had a BFOR for that termination, and that justification will be
explored below.
[422] For these reasons, I find that Mr. Vasil has established a prima facie case of
discrimination with respect to the terms and conditions of his employment.
B. Bona Fide Occupational Requirement
[423] As outlined above, I find that Mr. Vasil has established a prima facie case of
discrimination with respect to both his terms and conditions of employment, and his
termination. The respondents argue that they had a BFOR for the treatment.
[424] As highlighted above, neither party systematically explored the test for a BFOR,
as outlined by the Supreme Court in Meiorin. In particular, neither party identified an
applicable “standard”.
[425] Rather, the arguments of the respondents, in particular, focused on the question of
whether, in all of the circumstances of the case, the respondents had reasonably
accommodated Mr. Vasil.
[426] I will consider the argument first with respect to Mr. Vasil’s terms and conditions
of employment, and then as it relates to the termination of his employment.
1. Terms and Conditions of Employment
[427] The respondents argue that the same terms and conditions of employment that I
have found above to constitute adverse treatment were, in fact, a reasonable
accommodation of Mr. Vasil’s disabilities, and therefore constitute a BFOR. In essence,
they argued that Mr. Vasil’s employment by them was in fact an accommodation.
[428] In particular, the respondents note that the agreement to work flexible hours part-
time for $300 per month was at Mr. Vasil’s request. If it was not acceptable to him, or if
he was working excess hours such that the agreement had an adverse impact on him, he
had a duty to bring his concerns to Mr. Mongovius’ attention.
[429] This argument is problematic for a number of reasons. First, prior to the $75 per
week agreement, Mr. Vasil was earning $10 per hour. Thus, he would have to work only
7.5 hours a week to earn the $75 per week. No one testified that Mr. Vasil was only
working 7.5 hours per week.
[430] Second, I reject the respondents’ argument that paying Mr. Vasil the wage that he
requested was for his benefit and respected his specific individual needs. One of the
purposes of a minimum wage is to protect vulnerable employees, and Mr. Vasil was
unquestionably such an employee. There may be some dispute about the extent of Mr.
Vasil’s disabilities, but no one argued that Mr. Vasil was, or reasonably ought to have
been, aware of employment standards legislation in general, or minimum wage
requirements in particular, prior to the termination of his employment. On the other
hand, Mr. Mongovius, as a business owner and employer, ought reasonably to have been
aware of these requirements. Further, there was some suggestion in Ms. Burrows’
evidence that she brought the issue to his attention. Mr. Mongovius, on the other hand,
testified that he never really cast his mind to such legislation, and certainly never made
any independent enquiries with respect to the impact of the proposed arrangement on Mr.
Vasil.
[431] Third, although the respondents now argue that the $75 per week arrangement
was a recognition of Mr. Vasil’s limited capacity to work and was an example of Mr.
Mongovius’ flexibility and compassion, Mr. Mongovius’ own evidence was to the
contrary. He never testified that Mr. Vasil was not worth the $10 per hour he had been
paying him previously. In fact, he testified that, overall, Mr. Vasil was a good worker,
and that the work he performed was of value to the respondents.
[432] On all of the evidence before me, I find that the argument that Mr. Vasil’s terms
and conditions of employment were an accommodation of his disabilities is an after the
fact justification, and I do not find it convincing.
2. Termination of Employment
[433] With respect to Mr. Mongovius’ decision to terminate Mr. Vasil’s employment,
the respondents argue that their duty to accommodate is discharged by the fact that Mr.
Vasil clearly intended to quit his employment.
[434] In any event, the respondents argue that Mr. Mongovius dealt reasonably with Mr.
Vasil after his outburst in the workplace. He did not terminate his employment
immediately, but asked him to take some time to pull himself together. After Mr. Vasil
left the workplace, Mr. Mongovius attempted to speak with Mr. Vasil by telephone and in
person. He also alerted Mr. Vasil’s medical clinic that Mr. Vasil might require assistance
at the time.
[435] The respondents argue that the fact that Mr. Vasil would soon be leaving his
employment is a relevant consideration in whether Mr. Mongovius should have taken
steps to rehabilitate Mr. Vasil’s employment. Further, Mr. Vasil’s very negative attitude
expressed in subsequent telephone messages to Mr. Mongovius made it unlikely that Mr.
Vasil could have been substantively accommodated back into the workplace. It would
have been an undue hardship.
[436] Above, I have accepted Mr. Mongovius’ evidence with respect to the events
leading to Mr. Vasil’s termination. It is clear that Mr. Vasil engaged in inappropriate
behaviour in the workplace. What is also clear, however, is that this behaviour was, at
least in part, rooted in Mr. Vasil’s disabilities. The consistent evidence before me was
that Mr. Vasil was experiencing a great deal of stress in the period of time leading up to
his termination, and that, because of his disability, his ability to cope with such stress was
minimal, and he often responded by acting out in inappropriate ways.
[437] Further, it is clear from the evidence before me that Mr. Mongovius was aware
that Mr. Vasil’s behaviour was, at least in part, rooted in Mr. Vasil’s disabilities. In this
regard, I note his testimony about the escalation of Mr. Vasil’s behaviour in response to
life stressors, and the fact that, after Mr. Vasil left the shop, Mr. Mongovius phoned Mr.
Vasil’s health care provider to report the incident.
[438] In addition, although the respondents argue that Mr. Mongovius did not terminate
Mr. Vasil right away, it is clear that Mr. Mongovius made the decision within a very short
time frame after the incident. There is no evidence before me that Mr. Mongovius made
any assessment of the possibility of continuing to employ Mr. Vasil. He stated in cross-
examination that he did not consider the possibility of asking Mr. Vasil to remain off
work for a period of time, and to consult with his health care practitioner.
[439] Significantly, when Mr. James was asked in cross-examination whether he
anticipated that Mr. Vasil would be terminated, he replied that he did not think that he
would be. This testimony seriously undercuts the argument that the respondents would
have incurred undue hardship by continuing Mr. Vasil’s employment.
[440] While Mr. Vasil’s workplace behaviour was of legitimate concern to the
respondents, Mr. Mongovius did not consider alternatives short of termination to address
those concerns. In all of the circumstances of the case, I cannot find that the respondents
have succeeded in establishing a BFOR for Mr. Vasil’s termination.
3. Bona Fide Occupational Requirement: Conclusions
[441] For the reasons outlined above, I find that the respondents did not have a bona
fide and reasonable justification for their discriminatory treatment of Mr. Vasil, either as
it relates to Mr. Vasil’s terms and conditions of employment, or as it relates to the
termination of his employment.
C. Remedies
[442] Above, I have found that the respondents discriminated against Mr. Vasil with
respect to his employment contrary to s. 13 of the Code. Mr. Vasil sought a number of
remedies as a result of the discrimination, including damages for wage loss, injury to
dignity, and costs.
[443] Subsections 37(2) through (4) of the Code provide as follows:
(2) If the member or panel determines that the complaint is justified,
the member or panel

(a) must order the person that contravened this Code to cease
the contravention and to refrain from committing the same
or a similar contravention,

(d) if the person discriminated against is a party to the
complaint, or is an identifiable member of a group or class
on behalf of which a complaint is filed, may order the
person that contravened this Code to do one or more of the
following:

(i) make available to the person discriminated against
the right, opportunity or privilege that, in the
opinion of the member or panel, the person was
denied contrary to this Code;

(ii) compensate the person discriminated against for all,
or a part the member or panel determines, of any
wages or salary lost, or expenses incurred, by the
contravention;

(iii) pay to the person discriminated against an amount
that the member or panel considers appropriate to
compensate that person for injury to dignity,
feelings and self respect or to any of them.

(3) An order made under subsection (2) may require the person against
whom the order is made to provide any person designated in the
order with information respecting the implementation of the order.

(4) The member or panel may award costs

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(a) against a party to a complaint who has engaged in improper
conduct during the course of the complaint, and

(b) without limiting paragraph (a), against a party who
contravenes a rule under section 27.3 (2) or an order under
section 27.3 (3).

[444] I will consider each of the heads of damage in turn.
1. Mandatory Order
[445] Pursuant to s. 37(2)(a), I am required to order that 528716 BC Ltd. and Rawn
Mongovius refrain from committing the same or a similar contravention of the Code, and
I so order.
2. Wage Loss
[446] Mr. Vasil sought damages for wages lost as a result of the contravention. Section
37(2)(d)(ii) provides me with the discretion to award some or all of any wages or salary
lost as a result of the contravention.
[447] Above, I have found that Mr. Mongovius discriminated against Mr. Vasil by not
appropriately or accurately keeping track of Mr. Vasil’s hours for work, and not keeping
accurate payroll documentation of the same; by allowing Mr. Vasil to perform unpaid
work at home; by paying him less than the minimum wage provided by the Act for a
significant portion of his employment, and by terminating his employment. Each of these
acts of discrimination has resulted in a loss of wages.
[448] I will consider the quantification of those lost wages below.`

a. Pre-2003

[449] Above, I have found that:
• Mr. Vasil worked for the respondents for a period of time without pay;
• during the Early Period, the pay records produced by the respondents significantly
underrepresented the number of hours worked by Mr. Vasil; and
• there was a period of time during the Disputed Period where Mr. Vasil worked for the
respondents, yet no pay records were produced.
[450] I accept that, during these periods, Mr. Vasil may have lost wages as a result of a
contravention of the Code. However, I exercise my discretion not to award lost wages for
these periods of time. I come to this conclusion for the following reasons.
[451] First, with respect to the Unpaid Period, the amount of work that Mr. Vasil
performed, and the nature of that work was unclear. Mr. Vasil himself testified that, for
at least a portion of the Unpaid Period, he attended only irregularly. There is a lack of
clear evidence from any party about how long the period lasted, the hours of work during
the period, and the work performed.
[452] Second, with respect to the Early Period, there is an absence of clear evidence
with respect to the pay that Mr. Vasil actually received. There are a few cancelled
cheques from the Early Period, and a few instances on which it appears that Mr. Vasil’s
pay was sent directly to the Ministry. In addition, I have found on the evidence that, at
least until September 2000, Mr. Mongovius was paying Mr. Vasil in cash for his work.
Mr. Mongovius testified that he provided Mr. Vasil with additional cash throughout his
employment.
[453] Third, with respect to the Disputed Period, no pay records were provided at all,
yet there was evidence from Mr. Vasil that Mr. Mongovius would provide him with small
amounts of cash during this period. Mr. Mongovius, of course, denied that Mr. Vasil had
worked during this period, but did testify that, throughout Mr. Vasil’s periods of
employment with him, he provided him with some cash on a daily basis.
[454] Fourth, the events of the Unpaid, Early and Disputed Periods occurred some
significant amount of time prior to the filing of the complaint, and there were several
different pay arrangements between the parties which occurred after these periods.
Although the complaint was accepted as a timely continuing contravention, the time
elapsed is a factor that I take into account in exercising my discretion not to award wage
loss for these periods.
[455] As outlined in O’Connor v. Town Taxi (1987) Ltd. (c.o.b. Town Taxi), 2000
BCHRT 9, para. 60, the burden of establishing an entitlement to compensation is on the
complainant. In this case, I simply do not have the evidentiary basis to make an award
for wage loss incurred by Mr. Vasil during the Unpaid, Early, and Disputed Periods.
[456] I come to a different conclusion with respect to the Later Period. In particular, I
find as follows.

b. June 2003

[457] For June 2003, I find that Mr. Vasil was paid for his hours of work at $10 per
hour, with the exception of work he performed at home. I have found that Mr. Vasil
performed approximately ten hours of work at home per month during this period, and
that he was not paid for this time. Mr. Vasil’s wage loss for June would therefore be
$100 (10 hours x $10 per hour).

c. July 2003 to February 2004

[458] From July 2003 to February 2004, I find that Mr. Vasil was paid $25 per day in
wages for each day worked. I find that, throughout this period he should have been paid
at his previous rate of pay of $10 per hour. I base this finding both on the fact that it was
the rate of pay previously paid to Mr. Vasil, but also on the fact that other individuals
occupying the same position (Mr. Kassam and Mr. James) were paid $10 per hour or
more.
[459] I also find that, during the period of July 2003 to February 2004, Mr. Vasil
worked, on average, 6.5 hours a day on weekdays, and 4 hours a day on Saturdays. For
the purposes of calculating Mr. Vasil’s wage loss I will assume that one out of every four
days was a Saturday. In addition, although I have found that Mr. Vasil was not
consistently paid $25 per day, but that the amount varied, for the purposes of my
calculations I find that the $25 per day is the best available evidence on which to estimate
what Mr. Vasil was paid.
[460] Based on the records submitted by the respondents, which I have found to be
accurate in this regard, Mr. Vasil worked 120 days during this period. Assuming that 30
of those days were Saturdays, I find that Mr. Vasil should have been paid as follows:
90 days x 6.5 hours a day x $10 per hour = $5,850

30 days x 4 hours a day x $10 per hour = $1,200

Total: $7,050

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[461] In addition, I have found that Mr. Vasil performed approximately ten hours of
work at home per month during this period. There are eight months in the time period in
question, which means that Mr. Vasil should have been paid $800 in respect of work at
home during this period (8 months x 10 hours per month x $10 per hour).
[462] During that period of time, Mr. Vasil was in fact paid, on average, $25 per day, or
$3,000. Thus, his wages lost for this period is $4,850.

d. March 2004 to mid-April 2005

[463] For the period from March 2004 to mid-April 2005 (a period of 12.5 months), I
have found that Mr. Vasil worked, on average, 16 days per month. I have also found that
Mr. Vasil worked, on average, 6.5 hours a day on weekdays and 4 hours per day on
Saturdays. Again, I will assume that four of the days that Mr. Vasil worked each month
were Saturdays.
[464] During this period of time there is no record of the actual amount of money paid
to Mr. Vasil. He was paid varying amounts of cash at the end of each day. While the
arrangement between Mr. Vasil and Mr. Mongovius stipulated that Mr. Vasil would be
paid $300 per month, I again find that $25 per day is the best available evidence on which
to estimate what Mr. Vasil was paid.
[465] Based on these findings, Mr. Vasil should have been paid as follows:
12 days a month x 12.5 months x 6.5 hours a day x $10 per hour = $ 9,750

4 days a month x 12.5 months x 4 hours a day x $10 per hour = $ 2,000

Total $11,750

[466] In addition, there are 12.5 months during this period. Thus, for work at home, Mr.
Vasil should have been paid $1,250 (12.5 months x 10 hours x $10 per hour).
[467] Assuming that Mr. Vasil was paid $25 per day worked, he was paid $5,000 during
this period (16 days per month x 12.5 months x $25 per day). Thus, his wage loss for this
period is $8,000.
e. Mid-April to mid-May 2005

[468] The evidence indicates that Mr. Vasil did not work from mid-April to mid-May
2005. Thus, there is no wage loss for this period.

f. Mid-May to December 2005

[469] I have found that Mr. Mongovius’ daytimers are the best evidence of the days that
Mr. Vasil worked during this period, and the amounts that he was paid. I have found that
Mr. Vasil worked 6.5 hours a day on weekdays, and 4 hours a day on Saturdays. Based
on the records before me, this means that Mr. Vasil should have been paid:
89 days x 6.5 hours x $10 per hour = $5,785

10 days x 4 hours x $10 per hour = $ 400

Total = $6,185

[470] Mr. Mongovius’ daytimer covers a 26 week period. In that 26 week period there
are three periods of time during which Mr. Mongovius was away from the shop: August
10 to 17, September 10 to 14, and December 16 to 31, 2005, totalling 3.5 weeks. I have
found that Mr. Vasil worked his average hours during these periods. Taking an average
of what Mr. Vasil would have earned on a weekly basis, excluding these 3.5 weeks I have
found that Mr. Vasil averaged $275 weekly ($6,185 / 22.5 weeks). Thus, for the 3.5
weeks for which there are no records, I find that Mr. Vasil should have been paid $962.50
($275 per week x 3.5 weeks).
[471] In addition, I have found that Mr. Vasil worked approximately ten hours per
month at home during the period in question, which amounts to a further $600 (six
months x 10 hours x $10 per hour).
[472] Thus, Mr. Vasil should have been paid a total of 7,747.50 during this 26 week
period, or approximately $298 per week (including Mr. Vasil’s work at home). In
addition, there are six weeks at the beginning of the period (mid-May to the end of June)
for which there is no record of Mr. Vasil’s days of work or pay received. I have found
that the hours worked and pay received by Mr. Vasil during this period is consistent with
the July to December 2005 period. Therefore, Mr. Vasil is entitled to a further $1,788
($298 per week x 6 weeks), for a total of $9,535.50.
[473] The records show that, from July to December 2005 Mr. Vasil actually was paid
$2,945 (for an average of $113.25 per week). This amount includes a payment of $550
which the respondents made to Mr. Vasil prior to the shop closure in December 2005. I
have considered this payment as part of the wages paid to Mr. Vasil. In addition, I will
assume that Mr. Vasil was paid the same approximate amount for the six week period
from mid-May to the end of June 2005, $679.50 ($113.25 per week x six weeks). Thus,
the respondents paid Mr. Vasil a total of $3,624.50
[474] As a result of the above calculations, the amount of wages owing to Mr. Vasil for
this period is $5,911 ($9,535.50 – $3,624.50).

g. January to March 2006

[475] I have found that the documents submitted by the respondents are the best
evidence of the days Mr. Vasil worked during this period, and that Mr. Mongovius’
daytimers are the best evidence of the amounts Mr. Vasil was paid in cash. I have found
that Mr. Vasil worked 6.5 hours a day on weekdays, and 4 hours a day on Saturdays.
[476] I have also found that the parties agreed that Mr. Vasil was to be paid $15 per
hour during this time period. However, Mr. Vasil’s counsel stated that Mr. Vasil
continued to dispute that there was an agreement between himself and the respondents
that he would be paid $15 per hour, and asked that, in the event I accepted the
respondents’ evidence that the agreement was for $15 per hour, I should nevertheless
calculate any remedy on the basis of $10. I will therefore make the calculations on the
basis submitted by Mr. Vasil.
38 week days worked x 6.5 hours x $10 per hour = $2,470

9 Saturdays worked x 4.0 hours x $10 per hour = $ 360

Total = $2,830

[477] In addition, I have found that Mr. Vasil worked approximately 10 hours per
month at home during this period, which amounts to a further $250 (10 hours per month x
2.5 months). This adds up to $3,080 for the ten week period from January 1 to March 15,
2006, or approximately $308 per week.
[478] From this amount, I will subtract $1,272, which I find to be the amounts paid in
cash to Mr. Vasil by the respondents. In this regard I rely on the amounts recorded in Mr.
Mongovius’ daytimer calendar summary page. Thus, the total amount payable to Mr.
Vasil on account of wage loss for the January to March 2006 period is $1,808.

h. Post Termination Wage Loss

[479] Above, I have found that Mr. Vasil’s termination was discriminatory. One of the
losses caused to Mr. Vasil as a result of the termination was the wages he otherwise
would have earned but for the termination. As a result, he is entitled to wage loss for a
period of time following the termination.
[480] Mr. Vasil’s counsel noted that Mr. Vasil had apparently bought a plane ticket with
a departure date of April 25, 2006. Mr. Vasil is therefore seeking compensation for lost
wages for the period from March 15, 2006 to April 25, 2006.
[481] I find that it is reasonable to award Mr. Vasil his lost wages for this period.
Again, I will base these calculations on a wage of $10 per hour, as submitted by Mr.
Vasil.
[482] For the ten week period from January 1 to March 12, 2006, Mr. Vasil earned on
average, $308 per week. I find that this is an appropriate basis on which to calculate Mr.
Vasil’s post-termination wage loss. Thus, for the six week period from March 15 to April
25, 2006, Mr. Vasil would be entitled to $1,848 in wage loss.
3. Set-off
[483] As noted above, the respondents were ordered to pay Mr. Vasil $4,342.90 on
account of wages as a result of his Employment Standards complaint, and they did so.
This amount is appropriately deducted from the amounts I have found owing to Mr.
Vasil.
[484] The respondents also argued that some of the expenditures Mr. Mongovius
testified that he made should be taken into account and set-off against any wages found to
be owing to Mr. Vasil. The payments which Mr. Mongovius argues should be taken into
account include the following:
• Ticket to Slovakia in April 2005 (purchased on points): $2,000 (approximate value)
• Phone Bill incurred by Mr. Vasil on Mr. Mongovius’ cellular phone (2005): $3,500
• Payment of Travel Health Insurance for Mr. Vasil: $80.25
• Payment for reclamation of Mr. Vasil’s Passport: $1,925
• Laptop provided to Mr. Vasil: $ 900

 

[485] Mr. Vasil argues that these amounts should not be set off, as they were provided
as gifts, and not on account of wages. Mr. Mongovius agreed in his testimony that he
considered the ticket to Slovakia to be a gift to Mr. Vasil. In any event, he purchased that
ticket on points, and not in cash. Mr. Mongovius also testified that he had reached an
agreement with Mr. Vasil’s father relating to the repayment of the passport, under which
Mr. Vasil’s father would pay off the passport, and Mr. Mongovius would waive the
amount on the cellular phone bill.
[486] The evidence with respect to the laptop is not entirely clear. It appears that it is a
laptop that Mr. Vasil took possession of sometime prior to his termination. After his
termination, Mr. Mongovius prepared an invoice relating to this lap-top, which he then
attempted to deduct from the wages Mr. Vasil was owed. The Employment Standards
Branch did not find this to be a valid set-off and so did not take it into account.
[487] It is clear that Mr. Mongovius did expend a large amount of money on Mr. Vasil’s
behalf, especially with respect to the trip to Slovakia. However, the purpose of an award
under the Code is compensatory: to put the complainant in the position he would have
been in but for the discrimination. There is simply no evidence before me which would
indicate that Mr. Mongovius would not have expended these funds in any event. I
therefore cannot find that it is appropriate to set off the funds against the amounts that I
have awarded to Mr. Vasil.
4. Injury to Dignity, Feelings and Self-Respect
[488] Mr. Vasil sought $25,000 for injury to his dignity, feelings and self-respect. In
this regard, Mr. Vasil submitted that he was an extremely vulnerable individual, that the
discrimination was longstanding, that some of Mr. Mongovius’ acts were deliberate, and
that the events had a significant impact on him. He testified that, because of what
happened with the respondents, he no longer feels comfortable in a working environment.
[489] The respondents argue that, if I find discrimination, the appropriate range for
injury to dignity would fall between $5,000 and $10,000. In this regard, the respondents
argue that Mr. Vasil has not shown that he has suffered any serious consequences due to
the termination of his employment. They also point to Mr. Mongovius’ benevolent acts
and financial assistance to Mr. Vasil throughout his employment.
[490] I agree that the impact of the discrimination on Mr. Vasil needs to be considered
within the totality of the working relationship between the parties. The parties had a
positive and long standing relationship, and Mr. Vasil conceded that aspects of that
relationship were quite beneficial to him. While this decision has, in many respects, been
critical of Mr. Mongovius, there is little doubt that Mr. Vasil benefited from their
relationship and for a number of years it gave him stability and meaningful work which is
so seldom available to those with disabilities like Mr. Vasil’s.
[491] On the other hand, it is clear that the discrimination that I have found had a
significant impact on Mr. Vasil. Mr. Vasil is an extremely vulnerable individual. He felt
cheated and betrayed by someone he had trusted and respected. As a result of the
termination, in particular, a long standing and important aspect of his life was curtailed.
He no longer had a job to go to: a job that had made him feel valued and secure. Mr.
Vasil testified that, as a result of what occurred with the respondents, he no longer feels
able to participate in the workforce: he does not want to be taken advantage of again.
[492] In addition, part of the impact of the discrimination was that Mr. Vasil’s earnings
and periods of employment were not properly assessed for the purposes of CPP. It is not
clear, whether, had appropriate records been kept of Mr. Vasil’s employment, his
application for a CPP disability pension would have been successful. However, the lost
opportunity flowing from the failure to keep appropriate records has had a profound, long
term impact on Mr. Vasil.
[493] Having said this, not all of the impact on Mr. Vasil resulted from the
discrimination that I have found. Mr. Vasil felt that he had been fundamentally betrayed
by Mr. Mongovius, in ways that are not entirely borne out by the evidence.
[494] On all of the information before me, I find that it is appropriate to award Mr. Vasil
$10,000 for injury to his dignity, feelings and self respect.
5. Costs
[495] Mr. Vasil sought an award of costs against the respondents as a result of their
failure to disclose relevant documents prior to the commencement of the hearing. Mr.
Vasil argues that this constitutes a contravention of the Tribunal’s Rules of Practice and
Procedure (the “Rules”), and improper conduct. Mr. Vasil seeks the costs of two hearing
days as a result.
[496] The Tribunal may award costs under ss. 37(4)(a) and (b) of the Code, which
provide:
(4) The member or panel may award costs

(a) against a party to a complaint who has engaged in improper
conduct during the course of the complaint, and

(b) without limiting paragraph (a), against a party who
contravenes a rule under section 27.3 (2) or an order under
section 27.3 (3).

[497] As outlined above, there were several types of documents that the respondents did
not disclose to Mr. Vasil prior to the commencement of the hearing. These included Mr.
Mongovius’ day timers for the years 2000 to 2006, and a variety of cheque stubs and
bank statements. These documents were not disclosed until Mr. Vasil’s counsel asked
Mr. Mongovius questions in cross-examination which revealed that such documents
existed. As a result, the hearing had to be adjourned while the documents were located,
produced, and reviewed. In addition, and also during his cross-examination, Mr.
Mongovius located a handwritten record of Mr. Vasil’s hours of work and pay received
from May to September 2000. Mr. Mongovius was then questioned extensively about the
documents on cross-examination.
[498] In this case, there were a number of outstanding document disclosure issues
between the parties that were not adequately resolved until the commencement of the
hearing, or later. While the non-disclosure of the documents outlined above was the most
egregious example of these issues, it was not the only one. Nevertheless, the late
disclosure of document in question clearly had a negative impact on the Tribunal’s
processes. Most significantly, it necessitated an adjournment of the hearing while the
documents were located and produced.
[499] Further, many of the documents, once produced, were clearly relevant to the
matters at issue in the complaint. As outlined above, there were several instances in
which the documents provided corroboration for Mr. Vasil’s evidence, and were central
to some of my findings of fact.
[500] I find that the respondents’ actions relating to the identification and disclosure of
documents were extremely dilatory and requiring of some sanction. I therefore order the
respondents to pay Mr. Vasil $1,000 in respect of costs for non-compliance with the
Tribunal’s Rules constituting improper conduct.
6. Interest
[501] Mr. Vasil sought pre-judgment interest on his unpaid wages, and post-judgment
interest on all compensation ordered.
[502] Pre-judgement interest is generally awarded on monetary awards in recognition of
the fact that a complainant has been deprived of the use of the money now being
awarded. In this respect, it is part of the compensatory nature of the Tribunal’s awards,
which have the purpose of putting the complainant in the position he or she would have
been in had the discrimination not occurred.
[503] With respect to Mr. Vasil, an award of pre-judgment interest would not serve this
purpose. If the wages in question had been paid to Mr. Vasil at the time at which they
were due, the treatment of those wages would have been somewhat different.
Specifically, Mr. Vasil would have been required to report his wages to the Ministry, the
Ministry would have permitted him to keep a specified amount of those wages (the
amount of the exemption has increased from $300 per month to $500 per month over
time), and the remainder of the wages would have been deducted from his social
assistance benefits. Thus, it is not accurate to say that Mr. Vasil has been deprived of the
bulk of the money now being awarded for that period of time.
[504] As a result, I decline to order pre-judgment interest on the amounts in question. I
do, however, order post-judgment interest on all of the amounts awarded. This interest is
to be calculated in accordance with the Court Order Interest Act, R.S.B.C. 1996, c. 79, as
amended, and will run from the date of this decision to the date of payment.
7. Respondents’ arguments on the limitation of damages
[505] The respondents argued that any financial award I make should be limited by Mr.
Vasil’s conduct. They allege that he dishonestly alleged a more lucrative employment
agreement than existed. They argue that this should lead to a denial of remedies, or, in
the alternative, limiting the remedies granted.
[506] Above, I found that Mr. Vasil had not established, on a balance of probabilities,
that there was an agreement between he and Mr. Mongovius that he would be paid $2,500
per month. However, I also found that Mr. Vasil’s perceptions of how things were, while
honestly held, were not always accurate. I am satisfied that, by the date of the hearing,
Mr. Vasil believed that there had been such an arrangement. He should therefore not be
punished for pursuing that claim at the hearing.
[507] I also note that Mr. Vasil’s belief in the $2,500 agreement was assisted, in part, by
the November 16, 2005 email authored by Mr. Mongovius to the Visa section, although
Mr. Mongovius later stated in his testimony that the information in the email was not
accurate. There is no basis, on these findings, to limit the remedy awarded to Mr. Vasil,
or to award costs against Mr. Vasil.
VII CONCLUSION
[508] I find that Mr. Vasil’s complaint against the respondents is justified, and I order as
follows:
a) Pursuant to s. 37(1) of the Code, 528716 B.C. Ltd. and Rawn Mongovius are to
cease and desist the contravention of s. 13 of the Code;
b) Pursuant to s. 37(2)(d)(ii), 528716 B.C. Ltd. and Rawn Mongovius are to pay Mr.
Vasil $18,174.10 for wages lost as a result of the contravention.
This amount is the sum of the following:

i) $100 in respect of June 2003;
ii) $4,850 in respect of the period from July 2003 to February 2004;
iii) $8,000 in respect of the period from March 2004 to mid-April, 2005;
iv) $5,911 in respect of the period from mid-May to December 2005;
v) $1,808 in respect of the period from January to mid-March 2006; and
vi) $1,848 in respect of the period from mid-March to the end of April, 2006.

 

Â
Less the amount of $4,342.90 awarded by the Employment Standards Branch and
paid by the respondents to Mr. Vasil.
c) Pursuant to s. 37(2)(d)(iii), 528716 B.C. Ltd. and Rawn Mongovius are to pay Mr.
Vasil $10,000 in respect of injury to his dignity, feelings and self-respect;
d) Pursuant to s. 37(4), 528716 B.C. Ltd. and Rawn Mongovius are to pay Mr. Vasil
$1,000 in respect of costs; and
e) Pursuant to the Court Order Interest Act, 528716 B.C. Ltd. and Rawn Mongovius
are to pay Mr. Vasil post-judgment interest on the amounts outlined in (b), above,
(c) and (d) above.

 

 

 

 

Tonie Beharrell, Tribunal Member

Today is not a good day for me, But

What the Dr did for me at Saint Paul's 5 day's ago gave me 5 perfect day's.
Let me start with the Elder Lady that had a stream of water running into her basement.
Lee fixed the leak and Bounty from Jamaican Pizza Jerk paid for his lunch for doing the work for Free.
This Lady is on a Pension.
So the leak and her worries are over and she can sleep knowing it's fixed.
The project BK and i started went well and the past 5 day's gave me a chance to sit and catchup to the work i was doing.
I ate yesterday and i woke up with a sore tummy so now i have to go to Saint Paul's in the next few hrs.
In time if i do as Dr B ask it will be resolved.
I want to start adding Space Video's to wordpress and Drupal this weekend or sooner.

I went to Saint Paul's last night

I had a good day yesterday.
I did stuff around the aparment bilding for lucia.
I did stuff in the garden and cleand up a little.
I did some stuff online,
But not much.
The slashing has slowed down and should be over soon.
I just want to get it out of my head.
It’s hard for me to understand why BK did what he did.
Or why she did what she did.
All i know is it came to pass and i dint deserve it.
I know Darcy is correct when she told me Dr B abandened all of us just like Saint Pauls eating disorders treatment center.
I know im fat because Tracy and Darcy make it a point to tell me.
and they make it a point when they call to ask if Dr B stoped treating me.
When Darcy called today she told me Dr B was in France and told her,
He never wants to see me again because im overweight, stupid and it’s my fault Tracy and her are stuck in France in a treatment center.
I tryed to tell her i know but she was just so nasty towards Dr McKay at Saint Pauls eating disorders clinic and fliped when i told her i wanted her to be my Dr.
Regardles yesterday was a good day.

I like some foods

Link: http://www.tvlinkup.com/wp/2011/06/08/i-like-some-foods/

Martin vasil
Yesterday i ate 1 pattywich and i had 1 coke a cola.
I prepared some Eagle feathers for the Elders Center that were taken too them by Elder Prudent.
After i took a nap i went for a walk to Stanley park and placed some Eagle feathers in the ocean and walked around the sea wall.
Then i went over to see my Brother M he has a art display in Stanley park at the old petting zoo. I worked on some Eagle's that i received from the conservation office.
Thay are supper kind to me and my Family.
June-8-11
1:06 am

Dr.Hein is one of the Persons at Saint Paul’s Causing me

"Posted on January 21, 2012 by
martin vasil
Dr.Hein is one of the Persons at Saint Paul’s Causing me Problem’s
and trying to use his influence to devalue the Medical Condition i suffer from.
I want you all to Blog This report he gave me.
Emergency Discharge Summary.
Patient Name: Vasil Martin
Seen by MD: Dr. Hein
General Discharge Information
Admit Date/Time: 1/19/12 12:18:00AM
Disposition; Unknown at report time
Primary Discharge Diagnosis: Hemorrhoids
Procedures Preformed: None
Care Provider Comments
pt has External Hemorrhoids and Refused to replace them with a Toradol shot and Xyocane lub PT Requires a DMP he only wants sedation and Can Extrude His Hemorrhoids at will.
This Dr is Nasty, Persons Cant Push Hemorrhoids out at will.
It is Pain Full and Dr Hein is a Nasty Sick Creep.
It is not the First time but i will work it out so it will be the Last.
I had to call this # 604-806-8053 after they called to work things out.
I told them about this Nasty Dr and what he was telling other Dr’s what to do.
I think he is the Reason Reports are not all sent to Dr B
and i know when he is around they tell me to go home and come back if it’s out and i do return the next day and they correct the problem and i go home and the Suffering is gone for 4-5 Day’s or more or less,
But the Suffering is gone.
This is the Night i walked to VGH from Saint Paul’s
The Dr at VGH Tried to correct the problem but could not Reduce it and she is a Dr.
She called for a Surgeon who came down and he recomented her not to try again.
He told me to go home and rest and to return if it was out when i got up.
The next day i went to Saint Paul’s and the Dr was kind to remove the Sufferings it Caused me.
I expect Dr Hein will try and have him Disciplined for Doing so.
But because That Dr Was Merciful towards me, I will not let it Happen.
I talked to my Computer Friends about this Problem and they promised they would Help.
They dont like persons who are Nasty towards the sick.
I went to Saint Paul’s so the Dr can look at it and Yes i have a Hemorrhoid.
But no Prolapse Cause the Dr was Kind and Pushed it in the Night Before.
Today i got to do stuff and i got to sit and i ate a Cheese Sandwich.
The last time i ate was 5 days ago.
What Dr Hein did to me was Nasty and i will get all his reports and Post them.
I will also post other reports from VGH that state Different about the Medical Condition on the same day or night he was Around.
He is the Same person that talkers the Dr out of treating me and sending me home suffering for day’s.
I will ask Dr B if this Psychopath talked with him and if he did Why.
I know he Talked to Dr Roval and tried to influence him.
My computer friends will trace all his old Emails to find out who he is and who is involved and they will make them Public, So will i.
It is so pain full when they push it in that i wake up under Profoto Screaming. Dr Hein is a Sick and Nasty Dr that should be Disciplined for what he did towards me and how he Discriminated against me and the Medical Conditions i suffer from. He should be Removed from his Duties at Saint Paul’s for interfering with my Treatment and all other persons involved.
Blowjob