J.P. v. Dominion Masonry Ltd., 2013 BCCA 184

Martin Sheard argued this important employment law matter both at trial and in the Court of Appeal J.P. v. Dominion Masonry Ltd., 2013 BCCA 184 (Groberman, MacKenzie, Harris JJ.A.).  He was successful in both courts. David McWhinnie of our office also appeared in the appeal. Opposing counsel was a partner at a national law firm.

In the trial decision (also summarized on our website) the trial judge found that our client was constructively dismissed when his employer unilaterally decided to stop paying him his bonuses. He awarded $106,250 in damages plus interest and costs. On cross appeal we successfully argued for an additional $32,500 in damages. Several of the issues in the appeal are summarized below.

First, the Appellant contended that the trial judge erred in using excerpts from Farber v. Royal Trust Co., [1997] 1 S.C.R. 846 ("Farber") which referred to the Quebec (civil law) definition of constructive dismissal. The Court of Appeal concluded that those provisions "do not, in my view, state a test that is any different from the [common law] test[.]"

Second, the employer offered to continue employing our client, giving rise to the question of whether the plaintiff had a duty to return to work to mitigate his damages. The trial judge found that he did not and the Court of Appeal deferred to his finding. He had no duty because the employer acted in a dismissive manner toward him during his final weeks of employment, which made it unreasonable to require him to return to work to mitigate his damages.

Finally, in a cross-appeal, damages were awarded for unpaid bonuses both retroactively (this non-payment was a component of the constructive dismissal allegations) and going forward into the notice period. Even though the bonuses were not a straight mathematical calculation, the trial judge erred in not assessing them. The bonuses were intended to approximate what is mutually fair; this being the case, the Court determined that a general downturn in the economy justified a relatively lower bonus amount.