The Vancouver Province has reported on a BC Supreme Court decision by the Honourable Justice Laura Gerow, in Mr. Moore's wrongful dismissal action.

The defendants unsuccessfully applied for an order to have the court decline jurisdiction.  The court wrote:

[1] Patrick Moore has commenced an action alleging that NextEnergy Inc. breached the employment contract it had with him. On this application, NextEnergy seeks orders that Dr. Moore's action be dismissed or stayed, on the ground that the notice of civil claim does not allege facts, that if true, would establish that the Court has jurisdiction over NextEnergy. Alternatively, NextEnergy seeks an order that Dr. Moore's action be dismissed or stayed, on the basis that the Court does not have jurisdiction over NextEnergy in respect of the subject matter of the action. In the further alternative, the Court should decline jurisdiction over the parties in respect of the subject matter of this action.

However, the court found that Mr. Moore's employment, and the legal action for wrongful dismissal damages following the employer's termination of his employment contrary to its obligations in the employment agreement was properly governed by BC law.

The court's conclusion is at:

[73] I find that this Court has territorial competence over this matter, and NextEnergy has not established that Ontario is a more appropriate forum. As a result I decline to exercise my discretion to dismiss or stay this action. NextEnergy's application is dismissed. Dr. Moore is entitled to his costs of this application.

Mr. Moore was represented by TevlinGleadle's Blair Curtis.

Full Reasons for Judgement are available here.

Martin Sheard of TevlinGleadle was plaintiff's counsel in a successful wrongful dismissal claim in BC Supreme Court, where the employer initially dismissed without any allegation of just cause for dismissal. When Mr. Dobbs sought a severance package, the employer refused to pay anything, only then alleging conduct which amounted to "just cause".  

See Dobbs v. The Cambie Malone's Corporation, 2011 BCSC 1830

At the trial, the employer failed to provide any arguable basis for cause.  The trial judge commented that the employer had "all but abandoned" the allegation of just cause.

Mr. Dobbs had sought punitive damages on the basis of an improper allegation of cause, but the court did not find the sort of conduct needed to justify such an award. The court wrote:

[67] I do not agree with counsel for the plaintiff that the termination was high handed or outrageous. The circumstances of this case do not bear any of the hallmarks of the cases cited by Mr. Dobbs' counsel. Accordingly, the claim for punitive or aggravated damages is dismissed.

NOTICE PERIOD:

The honourable Madam Justice Wedge awarded damages based on a 12 month notice period.  In doing so, the court undertook an analysis of the effect of various "factors" which the courts typically review in determining the appropriate notice period for dismissed employees. In particular:

Age:  Mr. Dobbs was 51 years old at the time of dismissal.  This was found to be a factor tending toward a longer notice period.  Judge Wedge specifically referred to and approved of language in earlier reported decisions where age was a factor, by age 50.  The court wrote:

[40] The company in this case does not dispute that Mr. Dobbs' age, 51, is a relevant consideration. The case law amply supports that concession. In the case of Orlando v. Vancouver Coastal Health Authority, 2005 BCSC 926, Mr. Justice Taylor said at para. 49:

"It is no secret that employees terminated at such an age have a much greater difficulty finding employment than do those of a younger age."

[41] Taylor J. cited Harding J. in Birch v. Grinnell Fire Protection, [1998] B.C.J. No. 1602 (S.C.) at para. 21 where he said:

"[M]any potential employers these days are reluctant to hire new employees over the age of 50."

[57] In my view, that observation has resonance in the unique circumstances of this case. Like the plaintiff in the Orlando case, Mr. Dobbs is over 50 years of age and held a senior and specialized position in the company's structure. As Mr. Justice Taylor stated at para. 77: 

"As one reaches the pinnacle of a career, the ability or opportunity to replicate it diminishes in direct proportion to the job's uniqueness and with respect to the person's age."

Length of Service (Hiatus, or Break in Service):  Mr. Dobbs had worked for Malone's for over 11 years.  However, only the 30 months prior to the termination had been continuous. Before then he had worked for another employer for about one year.  He had left voluntarily after about 9 years service, from 1999 to 2007, only to return in 2008 when approached by the defendant.  The court found that the plaintiff should be treated as an employee with 11 years service, because, when he returned, he was not treated as a new employee but an employee with prior creditable service. Judge Wedge wrote:

[45] I will now address the issue of length of service. As I have already noted, Mr. Dobbs submits that all 11 years of his service with Cambie Malone's should be taken into account with respect to the appropriate notice period, while the company says only the last 30 months are relevant.

[46] The question is, how is the 11-month hiatus to be treated? The law concerning this issue was succinctly stated by Mr. Justice Lysyk in Beach v. Ikon Office Solutions, Inc., [1999] B.C.J. No. 1574 (S.C.), where the Court said at para. 13:

Where there is no express term in the re-employment contract dealing with the issue, the question is whether the employer has effectively recognized continuity of service.

[47] In the earlier decision of Chorny v. Freightliner of Canada Ltd. (1995), 3 B.C.L.R. (3d) 116 (S.C.), the Court similarly concluded that absent any express employment contract term, the question is whether the employer has effectively treated the employee as a long-term employee.

[48] I have reviewed several other decisions on the issue, including Potter v. Halliburton Group Canada Inc., 2004 BCSC 1376; Swamy v. O'Bryan Hotels Ltd., [1997] B.C.J. No. 2114 (S.C.); and Graham v. Galaxie Signs Ltd., 2010 BCSC 609. All of these decisions stand for the proposition that in the absence of an express contract term dealing with a hiatus in an employee's term of employment, the question is whether the employer and employee conducted themselves at the point of rehire in a manner consistent with the employee being given credit for the entire employment period. It is a question of fact to be determined on all of the evidence.

[49] I will say, parenthetically, that I do not read Graham v. Galaxie Signs Ltd. as departing from any earlier case law. In Graham, Groves J. simply treated the issue as a finding of fact, as did the Courts in other decisions I have cited. I do not read the Graham decision as authority for the proposition that unless there is an express agreement recognizing prior service, it will not be recognized.

[50] I turn then to the facts of this case. Mr. Yehia was clearly quite anxious to have Mr. Dobbs return to a management position in Cambie Malone's. He wanted to place him in a position that was a comfortable fit. When Mr. Dobbs asked about the 6% vacation entitlement with which he had left the company, Mr. Yehia agreed that it would remain at 6%. Mr. Yehia knew that if Mr. Dobbs was treated as a new hire, he would be entitled to only 4%. He understood the implications of Mr. Dobbs receiving three weeks rather than two weeks' vacation.

[51] When Mr. Dobbs said he wanted a 9:00 to 5:00 job that did not entail pulling shifts, Mr. Yehia readily agreed. He was anxious to have the company benefit from Mr. Dobbs' prior experience with the company. In e-mail exchanges with Mr. Dobbs, he referred to the company as always keeping the door open for Mr. Dobbs. Mr. Yehia knew Mr. Dobbs' strengths and talents from the previous eight years of employment and wanted to build on those for the new Human Resources and Operations Manager position.

[52] I am satisfied that in the discussions leading to Mr. Dobbs' return to Cambie Malone's, the parties assumed that Mr. Dobbs would be treated as an employee with many years of service with the company and not as a newly hired employee. That being the case, I conclude that Mr. Dobbs had 11 years of service with the company when he was terminated and should be regarded as such for purposes of the appropriate notice period.

Notice Period Awarded:  The court found that given all of the relevant factors, a 12 month notice period was appropriate. She said that, if she had only found that the 30 month period of final service was to be taken into account, a 9 month notice period would have been justified.

Summary and Conclusion:

This case will be useful for those persons wishing to understand the implications of a break in service for determination of reasonable notice periods, as well as an case justifying a 9 month notice period after 30 months service (though obiter) for a 51 year old manager.

In Systad v. Raymont Logistics Inc, a 65 year old Container Lift Operator, with no supervisory duties was awarded 18 months notice after 18 years service, in spite of the employer's argument that 8 weeks' notice was enough given his (allegedly) non-responsible job duties.

The full text of the reasons for judgement are available here.

Character of Employment:

The judge dismissed the employer's arguments based on its allegation that Mr. Systad's "character of employment" was such that only statutory notice was required to comply with the BC Employment Standards Act. 

"[19] There is no evidence to suggest that an employee with the responsibilities of Mr. Systad will have an easier time finding suitable alternate employment than an employee having more "senior" duties. I am satisfied that there are very few situations where the "character of employment" will be of paramount relevancy in the consideration of the appropriate notice period to be ordered. I adopt the statements that giving undue attention to the character of employment represents "antiquated social values" and is "antithetical to the law's ultimate goal, namely egalitarian justice". Character of employment is merely another matter which I take into account along with the other factors set out in Bardal, supra."

Employment Standards Acts minimums NOT adequate notice in most circumstances:

Judge Burnyeat in strong language concluded that for Mr. Systad the minimum notice requirements of the Employment Standards Act were inadequate.

[23] Mr. Systad has approximately ten years in excess of the period of employment that would entitle him to a maximum of eight weeks notice provided under the Act. At the same time, the employment of Mr. Systad was not that of a young, low-service employee with an "entry level" job. Mr. Systad was paid over $75,000 for his efforts, his hourly rate of approximately $36.80 far exceeded that of forklift drivers who he says earn $14 per hour, and he was entitled to eight weeks paid vacation. As well, Mr. Systad trained less experienced drivers and he had been asked by the Terminal Manager to supervise other employees when the Terminal Manager was absent.

[24] The decision in Pelech, supra, is clearly distinguishable. Based on his age, his responsibilities, and his compensation, he could not be described as a young entry-level employee. I reject the submission of Ray-Mont that the statutory notice provisions under the Act are appropriate in this case. It will be a rare case where someone of this age, compensation, years on the job, and duties will only be entitled to the compensation provisions set out under the Act. This is not such a case. While Mr. Systad had few remaining supervisory functions, he nevertheless was being paid commensurate with considerable responsibilities.

This decision underlines the severe limitations on application of the Pelech principle to very young and short service employees with entry level jobs.

Relevance of Physical or Mental Disabilities to Length of Notice Period:

The court accepted and applied submissions by plaintiff's counsel that the length of notice period could in proper circumstances be extended by particular problems facing the plaintiff in terms of re-employment.  Mr. Systad had knee problems with both knees.  When dismissed, he was just about to go off work for left knee surgery, and at the time of trial he had not yet returned to an active job search because he was still unable to drive.  He faced the prospect of further surgery on his other knee, a factor complicating his return to active employment.

Defence counsel argued that these circumstances were irrelevant and ought not to be taken into account when assessing the notice period. The court disagreed.

[25] Mr. Systad is 65 years-old and, while provincial legislation has been changed so that age 65 is no longer the date for mandatory retirement, I am satisfied that it will nevertheless be difficult for Mr. Systad to find employment in competition with a younger applicants for employment. I also take into account that his recent operation and the possibility that he will require further operations will make it more difficult for him to compete in finding comparable employment. As well, the availability of similar employment having regard to his experience, training and qualifications may not be available and he may be required to settle for jobs having considerable less remuneration. The possibility that he may require further surgery may well make him less desirable as a potential employee. Taking into account all of the factors set out in Bardal, supra, I am satisfied that the reasonable notice period is 18 months.

Modest Contingency Reduction for Damage Assessment Early in Notice Period:

The judgement was rendered only 6 months after the dismissal, thus 12 months remained during the notice period, and the defendant asked for a large deduction for the contingency that remunerative employment might be found during that period. The court only reduced the 18 month notice period by two weeks to reflect the contingency that Mr. Systad might earn income during the notice period.

[27] Taking into account the notice period of 18 months, the age of Mr. Systad, the number of years of his service, the type of work that he was undertaking, the possibility that his experience as a Container Lift Operator is specialized so that his skills and abilities are not readily transferable to other areas of employment, the level of responsibility, his efforts to date to find employment, and the information before the Court that his future employment may well be limited to employment at $14 per hour and not the $36.80 hourly wage that he was earning, I am satisfied that some contingency should be in place to reflect the possibility that Mr. Systad will find employment in the 12-1/2 months subsequent to this summary trial.

[28] Ray-Mont submits that the period of reasonable notice should be reduced by two months. There is very little information available regarding available employment given the skills of Mr. Systad. What is available allows me to conclude that what may be available will pay Mr. Systad less than 40% of what he was earning with Ray-Mont. In the circumstances, I provide a contingency equivalent to two weeks of his former salary. This contingency reflects the possibility of finding future employment but at a greatly reduced hourly wage. If I had any confidence in predicting that Mr. Systad would find employment at the salary he was receiving, I would have assessed the contingency factor at six weeks.

Mitigation of Damages:

The court refused to make any reduction in the notice period in spite of defendant's arguments of failure to mitigatge, writing:

[29] A further question which Ray-Mont raises is whether Mr. Systad failed to mitigate his damages. In Koos v. A&A Contract Customs Broker Ltd., [2009] B.C.J. No. 857, Rice J. set out the nature of this obligation as follows:

The plaintiff has an obligation to mitigate her loss, that is, to take such steps as a reasonable person in the plaintiff's position would take in her own interest to maintain her income and her position in her industry, trade or profession: see Smith v. Aker Kvaerner Canada Inc., 2005 BCSC 117, at para. 31. The onus is on the defendant to prove that the plaintiff has failed to mitigate or failed to take reasonable steps to mitigate. The defendant must show not only that the plaintiff failed to take steps to mitigate but also that had the plaintiff taken those steps she could likely have found equivalent employment: see Jorgenson v. Jack Cewe Ltd. (1978), 93 D.L.R. (3d) 464, 9 B.C.L.R. 292 at 296 (C.A.), aff'd [1980] 1 S.C.R. 812, 111 D.L.R. (3d) 577. (at para. 35)

[30] There was no evidence that, with diligent effort, Mr. Systad could have already secured alternative employment. Mr. Systad is only now able to work, having just recently recovered from his knee surgery. I think it highly unlikely that Mr. Systad would have been in a position to compete with those who could have started employment immediately when he would have not have been in a position to return to work until he has sufficiently recovered from his knee operation and until he could drive a vehicle again – not only to get to work but to operate comparable equipment in any new employment.

[31] Regard must be made to his physical and mental condition: Pereira v. Business Depot (c.o.b. Staples Business Depot), [2009] B.C.J. No. 1731 (S.C.) at para. 110. It is also appropriate to take into account the reasonable period of time to get over the shock of having his employment terminated: Smith v. Aker Cavaner Canada Inc. [2005] B.C.J. No. 150 (S.C.) where the following statement was made:

...I am satisfied that it is not necessarily a failure to mitigate where a finding could be made that a plaintiff has not immediately commenced a job search. I am satisfied that any employee should be given a reasonable period of time of having their employment terminated, to organize their thoughts as to how best to go about obtaining new employment, and to undertake the necessary research and preparation of resumes so that they are in a position to compete for available positions. (at para. 35)

[32] After his employment was terminated, Mr. Systad made only minimal efforts to find employment. As well, he did not take up the offer made to assist him in finding employment. When I combine the initial period of shock with the immobility caused by the necessary operation on his right knee, I conclude that Ray-Mont has failed to meet the onus of showing that Mr. Systad has failed to mitigate his damages. In this regard, I also take into account that reasonable mitigation efforts must take into account not only his current knee operation but the possibility that he will require further operations.

Not Appropriate to Deduct amounts for Employment Insurance premiums, Canada Pension Plan premiums, or Old Age Pension payments:

The court rejected the argument by defence counsel and deductions should be made for these premiums and payments.

Murray Tevlin and Martin Sheard of TevlinGleadle are representing Patrick Moore in a wrongful dismissal action against NextEnergy Geothermal Ltd., an Ontario energy company.

The action was reported by Keith Fraser, business writer for The Province.

In reasons for judgment handed down today, the Honourable Madam Justice Bruce upheld the decision of the BC Human Rights Tribunal in this important age discrimination case under the BC Human Rights Code.

The reasons for judgment are available here.

In an article published on the Report on Business edition yesterday, the Globe and Mail describes the issues surrounding Mr. McCormick's mandatory retirement complaint to the BC Human Rights Tribunal.

Mr. McCormick succeeded in having the BC Human Rights Tribunal accept jurisdiction to hear his discrimination complaint, in spite of the employer's submission that he was not a person entitled to the protection of the Human Rights Code, as he is a law partner in a law partnership.

That issue will be addressed in an application by the employer for judicial review, which is scheduled to be heard on May 5th and 6th, 2011.

In reasons for judgement pronounced on March 30, 2011, the court awarded full costs to the plaintiff, Mr. Patrick Devlin, in his wrongful dismissal damage case, although the plaintiff's claim for bonus was not accepted.  Mr. Devlin succeeded in respect of the great majority of issues in his wrongful dismissal claim, including achieving a ruling that he was wrongfully dismissed, or, in the alternative, constructively dismissed.  Plaintiff had argued that Devlin quit (ie resigned voluntarily) but the court found there was an actual wrongful dismissal.

Devlin was awarded judgment in the $415,000 range, before his claim for costs.

NEMI's counterclaim based on alleged wrongful conduct by failiure to cooperate was also dismissed.

The case involves a consideration of decisions in earlier decisions, mainly wrongful dismissal cases, where plaintiffs recover some but not all components of their damage awards.

The court wrote:

[15) While there is not a separate costs rule that relates to wrongful dismissal cases, there is a body of wrongful dismissal cases where this issue has arisen, and the kind of issues that here resulted in divided results have commonly not been the kinds of issue that have called for apportionment. In particular, I am referred to the case of Lewis v. Lehigh, 2009 BCCA 424; Samuda v. Recipco, 2009 BCCA 33; Davidson v. Tahtsa, 2010 BCCA 528: and Whiting v. First Data, 2011 BCCA 84.

[16] In my view, it is the facts of this case which are similar to the facts in those cases. This is not a particular1y rare or unusual sort of situation where some issues relating to damages are won by a wrongfully dismissed employee and others are lost. Generally the Court of Appeal has indicated that those kinds of issues on a fact by fact case-by-case basis, in the absence of something unusual, do not result in an apportionment.

The implications of this decision for wrongful dismissal cases is that defendants will find it difficult to avoid paying plaintiffs full costs even though the wrongfully terminated employee advances damages claims which are not successful or only partly successful.

The full case is available here.

We have been retained by the Hospitalist Physicians at Kelowna General Hospital to assist in finding a solution to a long standing contract dispute. The Doctors have been without a contract for going on three years. The dispute is about workload and funding for the appropriate number of physicians to deal with a rising census of patients in an important community. A factor in the dispute is the reality that Family Physicians in the community have been giving up their Hospital Privileges, coupled with issues around aging population and difficulties in recruitment of Physicians.

See Kelowna Daily Courier article here.

TevlinGleadle has launched a class action against the BCMA on behalf of medical doctors who are not members of the BCMA, and who are charged excessive administration fees as a precondition to receiving the benefits to which they are legally entitled. We say the benefits are for the public good of attracting and retaining excellent physicians for British Columbians, and not to unjustly enrich the BCMA.

Judge Kelleher of the BC Supreme Court certified this employment law action as a class proceeding under the BC Class Proceeding Act.

In Somerville v. Catalyst Paper Corporation, 2011 BCSC 331 (CanLII) the court concluded that the case was suitable to carry on, not as an individual action, but as a proceeding on behalf of all other class members, according to the classes identified.

Judge Kelleher wrote:

[35] The question under s. 4(1)(c) of the Act is “whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis”:  Western Canadian Shopping Centres Inc. at 39.  See also: Hollick at para. 18.  This question is to be applied narrowly:  Rumley v. British Columbia, 2001 SCC 69 (CanLII), 2001 SCC 69, [2001] 3 S.C.R. 184 at para. 33.  In Western Canadian Shopping Centres, the Supreme Court of Canada described the analysis as follows, at para. 39:

...Commonality tests have been a source of confusion in the courts.  The commonality question should be approached purposively.  The underlying question is whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis.  Thus an issue will be “common” only where its resolution is necessary to the resolution of each class member’s claim.  It is not essential that the class members be identically situated vis-à-vis the opposing party.  Nor is it necessary that common issues predominate over non-common issues or that the resolution of the common issues would be determinative of each class member’s claim.  However, the class members’ claims must share a substantial common ingredient to justify a class action.

[36] Huddart J.A., writing for the majority in Harrington v. Dow Corning Corp, 2000 BCCA 605 (CanLII), 2000 BCCA 605, leave to appeal ref’d [2001] S.C.C.A. No. 21, described the extent of commonality required for an issue to be certified as a “common issue.” At paras. 23‑24, she wrote:

I would have thought that the word “issue” simply meant a point in question, a point affirmed by the plaintiff and denied by the defendant.  If the point of fact or law is necessary to the successful prosecution of the cause of action (or in some circumstances to its defence), then its resolution will inevitably move the litigation forward.  The degree of materiality and the interplay among the various common and individual issues is a matter for consideration under s. 4(1)(d) and thus s. 4(2), not a matter for consideration under s. 4(1)(c).

More important to a determination of common issues is the requirement that they be “common” but not necessarily “identical”.  In the context of the Act, “common” means that the resolution of the point in question must be applicable to all who are to be bound by it.  I agree with the appellants that to be applicable to all parties, the answer to the question must, at least, be capable of extrapolation to each member of the class or subclass on whose behalf the trial of the common issue is certified for trial by a class proceeding...

[37] The plaintiff need not demonstrate that the resolution of a common issue will, in and of itself, support relief: Campbell v. Flexwatt Corp., [1997] B.C.J. No. 2477 (C.A.), leave to appeal ref’d [1998] S.C.C.A. No. 13.  Nor does the plaintiff need to show that everyone in the class shares the same interest in the resolution or that the issue will be answered the same for each class member: Hollick at para. 21.  See also: Endean v. Canadian Red Cross Society 1997 CanLII 2079 (BC S.C.), (1997), 148 D.L.R. (4th) 158 (B.C.S.C.) at para. 40, rev’d on other grounds 1998 CanLII 6489 (BC C.A.), (1998), 157 D.L.R. (4th) 465 (B.C.C.A.).

[38] The test has been held to be a “low bar”.  The court in Fresco v. Canadian Imperial Bank of Commerce, 2009 CarswellOnt 3481 (S.C.J.), aff’d (2010), 323 D.L.R. (4th) 376 (Ont. S.C.J. Div. Ct.), emphasized this at para. 52:

[52]      The common issues criterion is not a high legal hurdle, but a plaintiff must adduce some basis in fact to show that issues are common: Hollick at para. 25.  An issue can be common even if it makes up a very limited aspect of the liability question and although many individual issues remain to be decided after its resolution: Cloud [v. Canada (Attorney General) 2004 CanLII 45444 (ON C.A.), (2004), 247 D.L.R. (4th) 667 (Ont. C.A.)] at para. 53.  It is not necessary that the answers to the common issues resolve the action or even that the common issues predominate.  It is sufficient if their resolution will significantly advance the litigation so as to justify the certification of the action as a class proceeding.

[39] The significance of the common issues may be examined in relation to the individual issues: Western Canada Shopping Centres at para. 39.  However, s. 4(1)(c) of the Act excludes an examination of the possible predominance of individual issues: Harrington at para. 23.  See also: Jones v. Zimmer, 2010 BCSC 1504 (CanLII), 2010 BCSC 1504 at para. 10.  The fact that there are numerous individual issues that remain to be litigated after the conclusion of the common issues trial is a consideration under the preferable procedure analysis: Hollick.

[40] An issue is not common where it raises questions that require an assessment of individual facts, specific to each class member, thereby necessitating a determination on an individual basis: Lam v. University of British Columbia, 2010 BCCA 325 (CanLII), 2010 BCCA 325.  In Egglestone v. Barker, [2003] O.J. No. 3137, 38 C.P.C. (5th) 386 (S.C.J.), Cullity J. observed at para. 18:

If, on the basis of the pleading and the minimum evidentiary record required, the court concludes that an issue cannot be determined on a class-wide basis at a trial – that it would have to be decided separately in the light of the particular circumstances of each member – certification on the basis of such an issue would not be justified.  This would be so whether the defect is to be understood as detracting from the commonality of the issue, or as affecting the question of the preferable procedure...

[41] It is noteworthy that the list of common issues may be refined as the litigation progresses: Brogaard v. AG Canada, 2002 BCSC 1149 (CanLII), 2002 BCSC 1149, at para. 114.  See also: Hoy v. Medtronic, 2001 BCSC 1343 (CanLII), 2001 BCSC 1343, aff’d 2003 BCCA 316 (CanLII), 2003 BCCA 316.  However, it is important to identify common issues at the certification stage: Caputo v. Imperial Tobacco Limited 2004 CanLII 24753 (ON S.C.), (2004), 236 D.L.R. (4th) 348 at para. 56.

[42] In summary, a common issue is an issue of fact or law that is a substantial common ingredient of each class members’ claim, and its resolution must be necessary to the resolution of each class member’s claim.  In that way, the certification and litigation of a common issue moves the litigation forward.

In Whiting v. First Data Canada Merchant Solutions the BC Court of Appeal overturned the dismissal of Mr. Whiting's wrongful dismissal case.  We represented the plaintiff at trial and at the appeal.  The trial judge had allowed Mr. Whiting's claim for back pay (bonuses and commissions) and awarded about $20,000 for these claims, but the wrongful dismissal damage claim was dismissed on the grounds that the plaintiff had failed to mitigate his damages by taking a job which had been offered to him by a bank.  The job which Mr. Whiting turned down, preferring to look for a job that was more comparable to the First Data job, was believed by the trial judge to be comparable, and one that ought to have been taken.

The matter was remitted to the trial court, though Mr. Whiting was judged entitled to costs in the court below in any event.

The Court of Appeal  wrote:

[16] The applicable legal principles are straightforward. Wrongful dismissal is a breach of the contract of employment and Mr. Whiting was entitled to be put in the position he would have been in had the contract been performed. Since his employment contract was not for a fixed term, he was entitled to reasonable notice of termination and, in lieu of notice, to damages in the amount by which what he would have earned had he remained in his former position with the respondent during the period of reasonable notice exceeded any amount he should have earned during that period had he acted reasonably in his own interests.

[17] Although the trial judge found Mr. Whiting failed to act reasonably when he rejected the TD Bank offer, she never undertook the threshold analysis. She made no finding as to what amount Mr. Whiting lost by not continuing to work for the respondent during the period of reasonable notice and she did not determine the amount he would have earned during that period had he taken the TD Bank offer. Rather, she compared Mr. Whiting's average earnings over the past four years (counsel agree she was mistaken when she said "three" years) with his potential maximum earnings under the TD Bank offer and concluded they amounted to "substantially the same money". Thus, she erred in her approach.

[18] Moreover, her comparison was fundamentally flawed by her use of a false analogy. In the vernacular, to compare a maximum to an average was to compare apples and oranges. Had she compared maximums, she would have compared Mr. Whiting's potential maximum of $183,852 annually at TD Bank with his maximum past earnings of in excess of $300,000 in 2009. Further, in choosing to base her analysis on Mr. Whiting's potential maximum annual income with the TD Bank, she overlooked the evidence that his sales "target" at TD Bank was to be only 20% of his base salary of $102,140, not the 80% that would give him the maximum, and that at the 20% rate, his earnings at TD Bank would have been about $122,500 annually. She also failed to consider Mr. Whiting's evidence that, based on his prior experience with TD Bank, he thought the maximum he could realistically achieve would be about $150,000 annually.

[19] There were other errors in the trial judge's comparative assessment. Counsel agree she was wrong to say the TD Bank offered stock options. It did not. Rather, it offered an opportunity to purchase stock at favourable prices, an opportunity of much less value to Mr. Whiting than stock options. Also, counsel agree she erred in stating the TD Bank offered a signing bonus. In fact, the TD Bank offered a retention bonus conditioned on Mr. Whiting remaining in its employ until March 1, 2011.

[20] It is apparent that these errors by the trial judge in her approach and in her comparative analysis led to her conclusion that the compensation offered by the TD Bank was "substantially the same" and that Mr. Whiting had therefore failed to mitigate his loss. In my view, these were overriding errors and they vitiate this finding.

This is the second judgement of the BC Supreme Court in this proceeding. In the initial decision, Madam Justice Bruce dismissed the plaintiff's application for an interlocutory injunction restraining conduct by our clients based on allegations of breach of contract and breach of fiduciary duty. She did so because a collective agreement in place between the relevant parties clothed the arbitrator with exclusive jurisdiction over all disputes, and the BC Supreme Court was therefore without jurisdiction.

In this decision, we acted as lawyers for the defendants and successfully applied to dismiss the action in its entirety and obtained an order that the plaintiff pay our client's legal costs. The court makes specific comments as to how the recoverable costs should be determined.

This case has signficant employment law implications in the context of disputes where unionized parties are involved.  Where employee and employer relations are governed by collective agreements normal wrongful dismissal principles generally do not appy.

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In this employment law case we acted as lawyers for Pat Devlin, who had for some years acted as President and Chief Executive Officer of NEMI Northern Energy and Mining Inc.  Our client sought and recovered a substantial award based on a contractual clause mandating a termination payment in the event of a dismissal without just cause.  A new Board of Directors took over NEMI after a proxy contest, and Mr. Devlin was told to cease active work as President until the new board investigated and determined what was to be done regarding his contract.  Mr. Devlin had been accused of misconduct by the persons mounting the proxy contest.  The court determined that when the new Board took over and sent Mr. Devlin home, even though it did not say his job was over, it amounted to an actual termination, (thus a wrongful dismissal) and there was no question that the company did not have cause for summary dismissal. Mr. Devlin was awarded 18 months pay pursuant to the termination clause in his employment agreement. When Mr. Devlin sued for amounts due under his agreement, NEMI took the position that by suing, Mr. Devlin effectively quit.  This was rejected.  The court found also that if Devlin was not actually dismissed when he was sent home, he was constructively dismissed by new management's removal of duties and responsibilities.  

This is an important decision on the subject of the interpretation of written employment agreements, wrongful dissmissals (constructive dismissals), and damage claims including claims for unpaid bonus.

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We are bringing an age discrimination claim on behalf of a senior lawyer against a leading inter-national law firm, which we say is forcing his retirement. The Human Rights Tribunal has dismissed the law firm’s challenge to our age discrimination claim. As the Tribunal stated “the parties agree that Mr. McCormick is a skilled lawyer who does legal work of high quality”. As lawyers for Mr. McCormick, we advance claims including a claim that the law-firm’s  mandatory retirement rules and related conduct discriminate on the basis of age. The respondent firm sought to strike out our claim without a hearing on the grounds that the Tribunal has no jurisdiction. All of their grounds of objection were dismissed.

The respondent law firm has now commenced a BC Supreme Court action seeking to overturn the decision of the Tribunal.

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We represented the Plaintiff in an employment law action which invoked two main issues.

First, the parties disagreed regarding whether there was a breach of contract (constructive dismissal). The Plaintiff had typically worked 60 hours per week during her employment but there was no explicit contractual term entitling the Plaintiff to work a particular number of hours. The Defendant attempted to impose a new regime in which the Plaintiff's position would be shared with another employee, and she would be guaranteed 40 hours of work per week. The Defendant argued that since there was no contractual term entitling the Plaintiff to a particular number of hours, the new arrangement could not be viewed as a breach of the employment contract, and thus was not a constructive dismissal. Madam Justice Russell accepted our argument that the employment contract was breached and the Plaintiff was constructively dismissed. Although there had been no guarantee regarding hours of work, the Plaintiff during his employment had typically worked a 60-hour week, and thus a reduction to a 40-hour week was a breach of the employment contract. A reduction in the Plaintiff's duties also factored into Russell, J.'s analysis.

The second major issue in this case was whether the Plaintiff had a duty to mitigate his damages by accepting the new arrangement, and/or a subsequent offer of re-employment with the Defendant. The Defendant submitted that the Plaintiff unreasonably declined both offers, and was thus not entitled to an award of damages. Russell, J. found that the manner of the Plaintiff's constructive dismissal was humiliating. Accordingly, no reasonable person would have accepted an offer of continued employment or re-employment with the Defendant, with the result that the Plaintiff was entitled to recover damages.

The Plaintiff had worked for the Defendant for 2.5 years. She received a five-month notice period.

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We acted for the defendants in a "departing employees" dispute.  This involved a situation where former employees began a new business that was alleged to be in contravention of obligations to their ex-employer.  The former employer alleged that the ex-employees (who were unionized employees) and their fledgling company were using and benefitting from confidential information one of the ex-employees had taken from the former employer. The former employer claimed damages and brought on an injunction application against the defendants. We successfully defended the injunction claim on several grounds, one of which was a threshold jurisdiction issue – that this dispute was a collective agreement matter and should be heard by an arbitrator rather than the Court. The BC Supreme Court ruled in favor of our clients on the jurisdiction issue, dismissing the injunction application.

This employment law decision is an important ruling as to the appropriate venue to determine disputes about competition of ex-employees where a collective agreement exists.

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The full decision is at Jamieson v. Finning 2009 BCSC 861.

Reference was made to the specialization of the plaintiff's skills which were focused on forestry millyard equipment in the depressed economy.

Mr. Jamieson was awarded lump sum damages to compensate for the loss of a car allowance including a component to reflect ongoing lease commitments for a leased truck not needed after the termination.

Judge Cohen undertook a thorough review of recent British Columbia cases where the courts have given decreased weight to the factor of character of employment - where employees not in senior management ranks are increasingly able to obtain lengthy notice periods.

The plaintiff was also compensated for loss of Employee Share Purchase Plan ("ESPP") benefits during the notice period in spite of language which said such benefits ended when the employee was dismissed for "any reason". Regardless of this language, damages were found appropriate as the termination of the plaintiff was not lawful, but a breach of contract. In effect the judge found that the employment agreement should be read as if written "any lawful reason".

Jamieson's claim continues in regard to pension losses. He is advancing a claim that Finning unlawfully decreased the earnings upon which it agreed to pay pension benefits, and a further pension claim because his pension is less after the wrongful dismissal than it would have been if he had received proper notice.

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In this employment law (wrongful dismissal) matter we represented a founding shareholder and Vice President of a Corporation in the event of his dismissal and forced buy out from a profitable company. Many issues were raised in defence and the trial proceeded for 14 days in the BC Supreme Court. The main legal issues were around the interplay between shareholders, employees and contractors. In the result our client succeeded on all significant points and received an award in the amount of over half a million dollars plus substantial costs.  Mr. Smith had worked 14 years in commissions sales, and was 50 years old when wrongfully dismissed.

This employment law case includes an analysis of why Mr. Smith was ane employee, not an independent contractor, as well as various other findings on damages for wrongful dismissal.

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In this unusual employment law (wrongful dismissal) case, we negotiated a settlement for our client just before a scheduled summary trial. The settlement was contingent upon our client swearing an affidavit that he did not have a job nor did he have any job offers or reasonable job prospects as of the date he accepted the offer.

Our client made the required sworn statement and then received a unexpected job offer later that very day.

The defendant learned of the new employment prior to making the settlement payment and refused to complete the settlement.

We were forced to go to Court to have the settlement enforced.

As there was no evidence the plaintiff had any forewarning of the job offer and the sworn statement was true when he signed it, the settlement was enforced.

The defendant was ordered to pay the plaintiff's costs in enforcing the settlement.

This employment law decision supports the binding nature of settlements achieved in wrongful dismissal cases, in the absence of any factual misrepresentations at the time of settlement.

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In this wrongful dismissal matter we represented a well known and highly accomplished and respected broadcaster and actor in negotiations flowing from an employment contract dispute with CTV. The dispute received media attention, and working closely with our client, we were able to resolve the matter quickly and in a manner satisfactory to all parties.

Vancouver Sun Article August 24, 2007

In this employment law wrongful dismissal action we acted for a long service manager of an insurance agency. The issue was an employment contract that she negotiated with a previous owner (now deceased) where she agreed to work 30 hours per week. Over time she worked longer hours, always doing what was required to ensure the proper operation of the agency. When the agency was sold six years later, the new owner did not inquire about her weekly hours of work. She continued working for the new owner for approximately 10 years working various hours with no complaints from the new owner. In 2006 the new owner "discovered" she was sometimes scheduling herself to work 4 day weeks rather than 5 day weeks. The new owner then unilaterally reduced her salary by 1/5. At issue was whether the plaintiff's practice of working longer hours had become a term of her contract such that she was required to work 40 hours or 5 days per week. The trial judge determined that the plaintiff had never received any consideration for agreeing to work 40 hours per week or 5 days per week and that the original contracted 30 hour week contract was all that was legally required. The employer's conduct in reducing the plaintiff's salary unilaterally was held to constitute a constructive dismissal, and thus the dismissal was wrongful and damages were assessed. The employer was ordered to pay the plaintiff the salary that had been withheld plus wrongful dismissal damages based on a 15 month notice period.

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This employment law matter involves the fourth plaintiff we had to bring to Court to recover wrongful dismissal damages from a local high tech employer arising from downsizing efforts. In a previous decision (Lee, Lewis and Eden v. PMC) we successfully recovered a range of notice periods for similarly situated, wrongfully dismissed employees.

Despite the earlier decision, the employer was unwilling to heed the Court's determination of reasonable notice periods. This required us to again go to Court with Mr. T's case. The result was consistent with the earlier decisions.  Our client was 38 years old with 8.5 years of service in a specialized technical position. He received 11 months notice plus employment benefits that would have accrued within the notice period.   Wrongful dismissal damages included stock options, the value of which had appreciated following the termination of his employment.

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This is an employment law class action we brought on behalf of Ms. Macaraeg and all other employees of the defendants who worked but were not paid for overtime. We initially persuaded the BC Supreme Court to exercise jurisdiction over the employee's claims for overtime based on the British Columbia Employment Standards Act. The trial court concluded that the plaintiff was expressly not limited to a claim under the "machinery" of the said Act.

The decision has broad implications for employment law class actions in the province. The case was later overturned by the Court of Appeal, and leave to the Supreme Court of Canada was refused without reasons.

BC Supreme Court Reasons

BC Court of Appeal Reasons

In this wrongful dismissal action on behalf of a dismissed employee, where there were real concerns about the ability to recover a judgment against the defendant employer, we successfully implemented and then defended garnishing process which had the effect of placing assets "in court" for payment of the eventual award.

The wrongful dismissal case involved a claim by an employee for a termination payment that was "guaranteed", and thus a liquidated claim capable of supporting pre-judgement garnishment, not a typical claim for damages for wrongful dismissal, which would not permit attachment process before judgment.

This action arose out of an employment relationship between our client, and employer, and a trade untion certified under a collective agreement.

In one of the first cases of its kind in Canada, our client, a small business, was awarded punitive damages of $100,000 against a trade union that had gone on an illegal strike for 12 days.

It was held the Union improperly stopped work over a complaint about an employee who was a relative of one of the Union executives. When the Union did not get its way, it forced its members to withdraw their services and threatened to put the small company out of business unless its demands were met. It was also found on the evidence we presented that the Union had attempted to intimidate workers who wanted to go back to work. The decision vindicates the small business and communicates a strong message. The business, was also awarded over 50,000 in general damages.

Former Cabinet Minister the Honourable Herb Dhaliwal, the owner of the business was supported by the Arbitrator in the courageous position he undertook.

Punitive damages are exceptional damages awarded in the rarest of circumstances. They are meant to send a message certain conduct will not be tolerated. The law has only recently allowed punitive damages to be awarded in circumstances such as these and this case will be an important employment law precedent.

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In this wrongful dismissal matter we represented the President and CEO of the B.C. Lottery Corporation in negotiating a fair settlement in the event of the decision of the Corporation to dismiss an employee without cause. There was much to be negotiated in regard of the true meaning of the provisions of the employment contract and relevant legislation. The matter was resolved without a law suit and resulted in a well publicized settlement on a number of important issues including about $600,000 in compensation to our client.

Globe & Mail Article August 24, 2007

Province Article August 24, 2007

In this employment law case, we represented a 14.5 year National Account Manager, Business Development in a claim for wrongful dismissal damages following his termination without notice. The court awarded wrongful dismissal damages based on a 14 month notice period, without further deduction for mitigation opportunities, although the trial occurred only 4 months after dismissal. The plaintiff was compensated for monies expended to obtain replacement long term disability coverage, as well as other coverages for life insurance, basic and extended medical - in addition to non-salary financial income compenents such as RRSP matching.

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In this wrongful dismissal action we successfully represented a long service Territory Manager who started as a delivery driver and was promoted over time to mid-level management. Upon dismissal, the employer had offered to continue to pay Mr. Earl's salary and some benefits for up to 12 months, or earlier if he found new employment, rather than damages in a lump sum. The defendant argued that the principle applied by the Supreme Court of Canada in Hamilton v. Open Window Bakery Ltd. [2004] 1 S.C.R. 303 (whereby damages are to be assessed against a contract breaker as if the contract breaker had taken advantage of all contratual means to minimize its exposure) had no application in a typical wrongful dismissal action. The court, following Tull v. Norske Skog 2004 BCSC 1098, granted the plaintiff lump sum damages based on a 17 month notice period, with a 2 month "mitigation" reduction for the possibility that he would find suitable work during the period.

Remarkably, the decision was rendered only 4 months after Mr. Earl was dismissed, as we took advantage of the expedited procedures available under the BC Rules of Court.

This employment law case is an important example of why, in BC wrongful dismissal cases, employers will no longer be able to insist on salary continuation or salary continuance as a method of paying damages.

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In this employment law case, we represented three software engineers dismissed on the same day as part of a group layoff. The wrongful dismissal case included issues that, aside from the insufficient length of notice, the employer refused to include significant compensation components such as bonuses and stock options. We were successful in securing judgment for these employees based on their complete compensation package. The hearing occurred less than 4 months after dismissal. Proceeding on behalf of multiple employees can yield significant cost savings.

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In this employment law matter we provided strategic advice and negotiation expertise to a group consisting of all contract medical doctors working as Hospitalists across the province. We worked closely with the doctors leadership group and reported to the full membership in successfully negotiating superior terms and conditions of employment necessary to make the hospitalist programs sustainable for the good of patient safety for the future of British Columbia.

Vancouver Sun Article June 15, 2006

Vancouver Sun Article June 30, 2006

Extract from "The Hospitalist" August, 2006

Wachter's World web article October 23, 2007

We successfully represented a senior creative producer whom we established had been wrongfully dismissed due to a disability. The employment law (wrongful dismissal) action included a claim that the claimant had been working extremely long hours in the video gaming development industry. The Award of the Human Rights Tribunal in this case of $20,000 for 'injury to dignity, feelings and self-respect' is the largest in BC to date. The Tribunal granted severance pay without any deduction for monies received from long term disability insurance. The overall award of approximately $150,000 included the value of stock options as well as lost salary, bonuses and legal fees.

This employment law case is an important reminder that in some situations an employee can advance a claim for substantial wrongful dismissal damages in the BC Human Rights Tribunal.

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Vancouver Sun Article August 16, 2006

BC Human Rights Coalition Newsletter Oct. 2006

Lang Michener, Labour & Employment Newsletter - comment on Toivanen

In this employment law matter we successfully represented the co-executive director of the Society in a wrongful dismissal claim based on a verbal fixed term employment contract. We successfully obtained judgment for our client by overcoming a defence that she had quit. The Peace Society was found to have wrongfully demoted Ms. Hainsworth from her senior role and effectively constructively dismissed her from her employment by the demotion. She was awarded damages equivalent to her salary for the balance of her fixed term employment contract, costs relating to early termination of her lease, and legal costs. The case is an important decision on the principles of constructive dismissal, a form of wrongful dismissal.

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Vancouver Sun Article May 25, 2006

Vancouver Courier Article June 2, 2006

In this employment law matter, we successfully recovered wrongful dismissal damages from one of B.C.'s largest Pulp mills, on behalf of a 39 year service middle manager. Eurocan alleged that our client was thinking of taking home a small quantity of motor oil. The employer relied on this as "attempted theft" and alleged just cause for dismissal. The evidence was was entirely lacking. 

Mr. Rodgers was vindicated and recovered Judgement running well into the six figures, plus legal costs.

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In this wrongful dismissal action we represented an employee who had refused to accept a proposed transfer in the employer's business, which the employer characterized as a promotion.

The employer fired the employee for his refusal, taking the position he had quit.

We successfully argued that under our laws governing employment, an employer may not unilaterally change fundamental terms and conditions of an employee's employment without either:

(a) establishing a contractual right to make such changes, or

(b) giving the employee reasonable notice of such changes, even if the proposed change is a promotion.

Wrongful dismissal damages were recovered in favour of our client.

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In this employment law matter, we represented a hospital administrator in a claim for wrongful dismissal damages. The Defendant took the position that it owed our client only 12 months notice - they denied that she was entitled to the banked sick leave time or the retiring allowance referred to in her employment contract. The Defendant refused to recognize our client's past service with other health-care employers dating back to 1988. The Court found in favour of our client on all claims and recognized her full past employment service. Our client received an award of 18 months notice (the most allowed for such a public servant by law) plus payments for banked sick leave and retiring allowance. This decision is important for employment law issues concerning public sector employees.

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In this employment law (wrongful dismissal) matter we represented an equities trader that had worked for her entire career in Vancouver trading Canadian equities for institutional clients.

When her employer decided to relocate the Vancouver office to San Francisco, she decided that she did not want to move and raise her young family in the United States. Her employer closed the Vancouver office and refused to pay her any severance.

The Court found that she was not obligated to move to San Francisco to keep her job and awarded wrongful dismissal damages of roughly $625,000.

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In this employment law matter we successfully defended our client Intrawest Corporation from a claim of wrongful dismissal. We had worked with our client to develop a fair and progressive employee performance system which was referred to with approval by the Court of Appeal in this case.

The Court dismissed the action against our client and awarded costs to our client.

This caseis an important employment law decision in that it relates to the conduct that an employer might initiate, less than dismissal, for employee performance problems.

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In this leading employment law case we represented a senior manager at Norkse Skog's Crofton pulp and paper mill who was wrongfully dismissed. Mr. Tull had worked for the defendant and its predecessors for 14 years, and was awarded damages based on a 20 month notice period. Mr. Tull's claim included a claim for damages for losses suffered by reason of the company's failure to contribute to his basic and supplemental pension plan.

The reasons for judgment contain an excellent analysis of the issue of whether an employer is permitted to pay damages by way of salary continuation (sometimes called salary continuance), an important and then unresolved issue of some importance in employment law in BC. The trial judge accepted arguments presented on behalf of Mr. Tull that salary continuation was not appropriate in the circumstances. More importantly, the learned judge made certain general observations that suggested the court would not find salary continuation to be appropriate in any circumstance where the employer failed to give proper working notice.

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In this wrongful dismissal action we were lawyers for a senior vancouver police inspector who had invented the investigative tool of Geographic Profiling for making efficient use of police resources in serial murder cases.

Trial Judgement

Appeal Judgement

The important employment law case received some interest in the media:

Vancouver Province, October 18, 2001

Vancouver Sun, October 24, 2001

Vancouver Province, October 29, 2001

Vancouver Sun, November 5, 2001

A number of important findings were made by the trial judge consistent with Dr. Rossmo's evidence that he had been shut out of an "old boys club" due to his doctorate level education and meteoric rise through the ranks, directly from constable to Detective Inspector. The learned trial Judge, amoung other things, said his:

"Throughout the term of the Agreement, Detective Inspector Rossmo's services were requested and praised by numerous national and international policing agencies. The requesting agency paid all of his travel expenses. His presentations on, and training sessions in, geographic profiling were enthusiastically received locally, nationally, and internationally.

Geographic profiling was the subject of extensive media coverage. Detective Inspector Rossmo was active academically, teaching criminology at Simon Fraser University and writing books, articles and academic papers. There is no doubt that Detective Inspector Rossmo's unique expertise greatly enhanced the reputation of the VPD. Detective Inspector Rossmo received a number of national and international awards recognizing his contributions to policing and the VPD was the recipient of several honours as a result of his work.

However, within the VPD there was stiff resistance to utilizing Detective Inspector Rossmo's talents. In January 1999, Rossmo sent a memorandum to the Inspectors in charge of major crime and special investigations, asking them to estimate the number of requests they would have for geographic profiling in the next year. One Inspector returned the form with zeros marked in every category and another Inspector declined to respond at all. That resistance was unwarranted. Rossmo's skills and expertise were under-utilized locally for the types of criminal investigations particularly suited to geographic profiling."

However, on her view of the evidence,the trial Judge decided that our client had not been "promoted" as this term was understood by the Court, so his demotion back to constable was not a constructive dismissal, and the special law governing police contracts did not apply to him.

In this employment law case we represented departing employees in the situation where what we considered to be a groundless allegation of breach of confidence and trade secrets.

We were successful in requiring the employer to particularize what, if any, trade secrets they claimed had been removed before compelling the departing employee from disclosing their own products and formulas. This judgment sets out with clarity the threshold which must be met by an employer who seeks to sue departing employees.

The Supreme Court threw out as unreasonable and unenforceable, a series of restictive clauses in the employment contracts of certain departing employees for whom we act.

In the final segment of our defence strategy in this case we were successful in having the Court strike out the restrictive covenants in employment contracts of our clients.

This lead to the discontinuance of the case against our clients and the end of the employment law litigation by agreement of the parties.

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StockWatch USA picked up the story in an accurate, if colourful, report on the Judgement.

And GlobeInvestor.com has published an article about the BCSC decision vacating the injunction.

In this employment law matter we represented a corporate defendant resisting a claim of wrongful dismissal by a managerial employee. After a five day trial, we were entirely successful in proving that our client had just cause for dismissing the person and her claim was dismissed and costs were paid to the corporation by the plaintiff. It is one one of the rare employment law cases where an employer successfully defends a wrongful dismissal claim based on just cause.

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In this BC employment law action, we advanced a wrongful dismissal action on behalf of the plaintiff who had been employed by the defendant as a senior fixed term securities trader. Before consulting us, he negotiated terms of departure from his employment. Problems arose when the plaintiff and defendant disagreed as to the scope of the defendant's obligations regarding payment of a $400,000 lump sum. The plaintiff was unsuccessful in his effort to recover this sum at trial.

The BC Court of Appeal ultimately decided in favour of the Company based on a factual findings at trial. 

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In this leading BC employment law case we represented a senior financial executive at trial in a successful claim against his employer for wrongful dismissal damages, obtaining an award valued at almost $500,000.

Financial Post Article March 10, 2000, after trial judgement.

The trial decision did not include an award or damages for our client's failure to participate in a lucrative Initial Public Offering.

On appeal to the Court of Appeal, the trial decision was reversed, and or client's entitlement to participate in the IPO was confirmed. In its reasons, the Court of Appeal said:

"... for persons of specialized employment skills, nearing the older end of the work force spectrum for the occupation, operating at high levels of responsibility in circumstances in which replacement employment is not readily available, 12 months will not be an unusual notice period and longer notice will be the norm."

The case has now been settled on the payment of a substantial sum to our client.

British Columbia Supreme Court Reasons for Judgement

Decision on Costs

Court of Appeal Reasons for Judgement

This wrongful dismissal proceeding, which has become a leading case in Canada on a number of important employment law issues, began as a jury trial in BC Supreme Court and found its way to the Supreme Court of Canada.We successfully represented the plaintiff, a senior BC Tel executive. The jury awarded substantial damages, but on appeal to the BCCA, our client was disentitled to damages. The Court referred to possible finding that the plaintiff had not fully disclosed advice received from his doctors, about his medical condition. The Court of Appeal found that this non-disclosure by the plaintiff may have been "dishonesty" and therefore justified summary dismissal.

We brought the wrongful dismissal case before the Supreme Court of Canada the court overturned the Court of Appeal decision. In it's judgement, the SCC made this important statement:

"... Given this recognition of the integral nature of work to the lives and identities of individuals in our society, care must be taken in fashioning rules and principles of law which would enable the employment relationship to be terminated without notice. The importance of this is underscored by the power imbalance that this Court has recognized as ingrained in most facets of the employment relationship."

View BC Court of Appeal Decision

View Supreme Court of Canada Decision

In this BC employment law proceeding, we represented the defendant, an company in the oil exploration business, whose primary operations are located in the Crimea, in a successful defence of a wrongful dismissal action in which the plaintiff sought damages for the termination of his employment, and also damages for an alleged breach of an obligation to deliver incentive stock options.

The plaintiff sued on the basis of a fixed term written agreement.

The main issue on appeal related to the issue of mitigation.

The Court of Appeal confirmed that a plaintiff with a fixed term employment contract was still obliged to mitigate his damages.

The plaintiff's wrongful dismissal action was dismissed because he had not acted reasonably in mitigation.

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In this BC employment law action we represented the plaintiff.  It was originally resolved in our client's favour by way of a motion for Summary Judgment, but later reversed by the Court of Appeal and sent back to Trial. In the meantime we had settled a number of important employment law and wrongful dismissal issues in favour of our client. We went back to trial on the issue of entitlement to certain stock options. At trial we were successful in establishing our client's entitlement to such options, and damages of several hundreds of thousands of dollars were awarded, plus costs.

We represented the plaintiff in this action which was originally resolved in our client's favour by way of a motion for Summary Judgment, but later reversed by the Court of Appeal and sent back to Trial. In the meantime we had settled a number of important issues in favour of our client. We went back to trial on the issue of entitlement to certain stock options. At trial we were successful in establishing our client's entitlement to such options, and damages of several hundreds of thousands of dollars were awarded, plus costs.

VIEW PDF OF APPEAL

We represented a Hospital Board in defending a wrongful dismissal action brought y an administrator, and in respect of a number of crucial employment law issues taken against our client through his counsel. We were successful in this defence.

We represented a Hospital Board in defending a wrongful dismissal action brought y an administrator, and in respect of a number of crucial employment law issues taken against our client through his counsel. We were successful in this defence.

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In this proceeding, we represented the defendant, an company in the oil exploration business, whose primary operations are located in the Crimea, in a successful defence of an action in which the plaintiff sought damages for the termination of his employment, and also damages for an alleged breach of an obligation to deliver incentive stock options. The plaintiff sued on the basis of a fixed term written agreement - the main issue on appeal related to the issue of mitigation. The Court of Appeal confirmed that a plaintiff with a fixed term employment contract was still obliged to mitigate his damages, and the plaintiff's action was dismissed because he had not done so.

This is a leading employment law decision in British Columbia on the subject of the method of calculating damages for unfair competition, breach of confidence and breach of confidence by departing employees.

We were lawyers for the injured employer and we were successful in recovering judgment for substantial damages and costs.

View 1st BC Court of Appeal Decision

View 2nd BC Court of Appeal Decision

In this employment law matter we represented a large national employer in respect of a decision of an arbitrator in a labour matter pursuant to the Canada Labour Code.

In BC courts, we were successful in having the decision quashed, on the basis that the arbitration decision was patently unreasonable.

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