Merrill Lynch Canada Inc. v. Soost 2010 ABCA 251 – August 2010
This is a must read – entertaining – and important Alberta Court of Appeal employment law decision facing the question whether damages can be awarded for the mere fact of an employees wrongful dismissal and the stigma attaching thereto.
At trial a stock broker was awarded one year pay in lieu of notice in the amount of $600,000. The trial Judge also awarded a further $1.6MM in damages. The ACA said the reasons for the further award were not clear.
The ACA reviewed the “basics” of wrongful dismissal – a term the Court said was sloppy and misleading.
The Court referred to Honda v. Keays as an exception to the rule that no damages other than pay in lieu can ever be awarded in such cases. The ACA stated that there must be some proven malice to get to any extra damages award. Examples given were : lies and purposeful bad timing.
The rule in Hadley v. Baxendale was restated as being only a way to limit the payment of damages – never a way to allow such payment. The only question is whether damages are too remote.
The Court remarked that there could not be a policy of awarding extra damages every time an allegation of cause was argued and not made out. This would amount to a “Charter for Slackers”. Not, apparently part of the law of Alberta.
The Respondent employee raised a plea that the extra damages award was justified as an award for unfair competition against him by his former employer, in the inevitable fight over the client list. A brave and novel idea, but one which the ACA found – let me count them – twelve different way to reject.
As a final interesting point – the successful Appellant had costs reduced by $500 for the fact of an unclear photocopy in the Appeal book of – wait for it – the trial judgment.