Jamieson v. Finning International Inc.

On June 12, 2009, the BC Supreme Court awarded a 53 year old "Millyard Systems Manager" with slightly more than 20 years' service, damages based on a 19 month notice period, with a one month deduction for the possibility of mitigation earnings, as the decision was handed down well in advance of the expiry of the notice period.

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.

Honda v. Keays (Back to the Future)

Recent employment law decisions by Canadian Courts mandate a return to basics when measuring damages for breach of employment contracts.

For many years, after Wallace v. United Grain Growers, Canadian courts struggled with the task of awarding damages to dismissed employees based on what might be regarded as egregious conduct at the time of or in the manner of dismissal. In that case, the Supreme Court of Canada directed that in a suitable case, where the employer's conduct was sufficiently inappropriate, a trial court could award extra damages, but measured by reference to an increased notice period.

In Honda v. Keays, the Supreme Court of Canada has determined that this approach is not to be followed. Instead, applying Hadley v. Baxendale, the SCC has directed that if an employee suffers foreseeable loss or damage by reason of the inappropriate conduct of the employer, damages are to be assessed in the normal way - that is, without reference to any arbitrary notice period increase, and that the "injured" employee should receive full compensation for proven losses.

The implications of this new approach remain to be determined. Trial courts will need to decide what the new approach means, in the context of individual cases.