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.