Blair Curtis of TevlinGleadle Employment Law successfully represented Ms. Beverley Maxwell last year in a summary trial hearing before Mr. Justice Skolrood of the British Columbia Supreme Court. Justice Skolrood granted judgment of substantial damages to Ms. Maxwell in her wrongful dismissal claim against the B.C. Government.
The B.C. Government appealed the wrongful dismissal award, but the B.C. Court of Appeal has now dismissed the appeal, and affirmed the lower Court’s award to our client (which was over $312,000 in damages, plus costs).
The full text of the Court’s reasons are available here.
Ms. Maxwell, who is 60 years old, had been a long term executive at the former B.C. College of Teachers. She had a written contract with the College that provided for two years of protection by way of severance pay in the event of her dismissal without cause. In late 2011 and early 2012, the B.C. Government legislated the College out of existence. The Government absorbed the functions of the former College. Ms. Maxwell had serious concerns about how this transpired. The Government offered Ms. Maxwell a job to commence following the dissolution, but Ms. Maxwell declined that job, stating concerns about salary and benefits, among other important things. The Government (which inherited the liabilities of the College) refused to pay Ms. Maxwell’s contractual severance. Their refusal rested on the technical argument that Ms. Maxwell’s contract referred to the “Registrar” in terms of dismissal, but in this case the dismissal occurred by act of the Legislature rather than the Registrar.
The Government also insisted that Ms. Maxwell should have taken the job it offered to her.
The B.C. Court of Appeal unanimously held that Ms. Maxwell was absolutely entitled to the contractual severance payment in these circumstances. The Court held that it did not matter whether the termination was an express dismissal or a constructive dismissal, since they were the same for these purposes.
The Court of Appeal also reiterated that the law in B.C. is settled with regards to mitigation of damages in cases where there is a written termination provision. The Court of Appeal held that a severance entitlement in a written contract is not subject to a duty to mitigate unless that duty is expressly stated.
The Court eloquently stated:
“Where a contract provides for the effect of termination, generally the provisions of the contract prevail. Recourse to the common law is not required. In some circumstances, the contract may require mitigation, but where it does not the innocent party is entitled to what was agreed. The guilty party is not entitled to graft onto the bargain struck by the parties additional terms that dilute or modify the entitlement of the innocent party.”
In this important employment law decision, the Court of Appeal ruled that it did not need to consider whether Ms. Maxwell ought to have taken the Government job. She was absolutely entitled to the severance payment.