In this wrongful dismissal action we successfully represented a long service Territory Manager who started as a delivery driver and was promoted over time to mid-level management. Upon dismissal, the employer had offered to continue to pay Mr. Earl’s salary and some benefits for up to 12 months, or earlier if he found new employment, rather than damages in a lump sum. The defendant argued that the principle applied by the Supreme Court of Canada in Hamilton v. Open Window Bakery Ltd. [2004] 1 S.C.R. 303 (whereby damages are to be assessed against a contract breaker as if the contract breaker had taken advantage of all contratual means to minimize its exposure) had no application in a typical wrongful dismissal action. The court, following Tull v. Norske Skog 2004 BCSC 1098, granted the plaintiff lump sum damages based on a 17 month notice period, with a 2 month “mitigation” reduction for the possibility that he would find suitable work during the period.
Remarkably, the decision was rendered only 4 months after Mr. Earl was dismissed, as we took advantage of the expedited procedures available under the BC Rules of Court.
This employment law case is an important example of why, in BC wrongful dismissal cases, employers will no longer be able to insist on salary continuation or salary continuance as a method of paying damages.