In Dwayne Carson v. Coastland Wood Industries Ltd, we represented the plaintiff in a successful claim for wrongful dismissal damages. TevlinGleadle’s Chris Forguson was successful counsel for Mr. Carson.
Notice Period:
The plaintiff had worked for the employer for 23 years in various jobs. He had worked himself up through the ranks to a management role of Yard Log Manager, though he had been assigned to duties of Equipment Manager for a short period before his dismissal. He was 47 years old at the time of termination of employment. The court concluded that available employment was not going to be readily available due to Mr. Carson’s educational and employment background, and the fact that he lived and worked in a relatively small community without a great number of similar jobs.
The court wrote:
“[39] From 1993 until 2009, as the log area manager, he had been responsible for management of between 14 and 25 employees, the management of log deliveries, scaling of logs and the flow of logs to the mill. When he was appointed his position of equipment manager, his salary was maintained at the same level as his former position with the base salary of $90,105 per annum. I infer from the fact that his salary was continued at that level, that the employer continued to regard the position as one that involved significant and important responsibilities. Carson v. Coast/and Wood Industries Ltd. Page9
[40] Mr. Carson was not, at the time of his termination, as I understand the facts of this case, in a direct reporting relationship to senior management. The removal of any responsibility for the management of personnel leads me to conclude that his position, as I have already said, is properly characterized as a low level management position at the time of dismissal.
[41] His length of service of over 23 years militates in favour of a significant notice period. At the age of 47, Mr. Carson is a mature employee with the benefit of experience in his field, which is of course a somewhat narrow field. He is not so old that age is a major deterrent to him securing other employment. However, it is nonetheless a factor that I do take into account.
[42] I turn now to the availability of similar employment. With a grade 9 education and no formal professional or trade qualifications, Mr. Carson is unlikely to secure employment that pays as well as his former position unless he is able to find work that involves the management of a fleet of heavy equipment, or a managerial position at another log sorting operation.
[43] His wife and other members of his family are all employed in the Nanaimo area. There are a limited number of employers who could provide him with comparable employment in that area. As I have already noted, Mr. Carson has made efforts to seek out comparable employment, as yet without any success.
[44] Taking all of these factors into account, I find that the reasonable period of notice is 20 months.”
No Mitigation Deduction:
In wrongful dismissal cases, where claims come on for trial before the expiry of a reasonable notice period, courts are required to consider whether there is evidence that the dismissed employee will earn money during the balance of the notice period. The court considered this issue, and failed to deduct anything from damages in respect of the remaining 10 month period, on the basis that negative contingencies were not outweighted by positive contingencies. The court wrote:
“[57] Finally, I turn to the question of whether there should be a further reduction or the contingency of the plaintiff finding new employment before the expiry of the notice period. In Albach v. Vortek Industries Ltd., 2000 BCSC 1228 at para. 22, Mr. Justice Brooke emphasized that the court must take into account both positive and negative contingencies.
[58] Here, there is a possibility that the plaintiff might find new employment before the expiry of the notice period. The plaintiff has skills and experience, but only in a field where his opportunities are restricted. He has no formal qualifications. He is not in a position to relocate to seek alternate employment. The number of prospective employers in the Nanaimo area is limited, and so far, the plaintiff has had no success in securing alternate employment.
[59] In the particular circumstances of this case, I am not persuaded that there is a real and substantial possibility that the plaintiff will find alternate employment within the remaining 10 months of what I have determined to be the effective notice period, and, accordingly, I would make no further deduction for this contingency.”