In Whiting v. First Data Canada Merchant Solutions the BC Court of Appeal overturned the dismissal of Mr. Whiting’s wrongful dismissal case. We represented the plaintiff at trial and at the appeal. The trial judge had allowed Mr. Whiting’s claim for back pay (bonuses and commissions) and awarded about $20,000 for these claims, but the wrongful dismissal damage claim was dismissed on the grounds that the plaintiff had failed to mitigate his damages by taking a job which had been offered to him by a bank. The job which Mr. Whiting turned down, preferring to look for a job that was more comparable to the First Data job, was believed by the trial judge to be comparable, and one that ought to have been taken.
The matter was remitted to the trial court, though Mr. Whiting was judged entitled to costs in the court below in any event.
The Court of Appeal wrote:
[16] The applicable legal principles are straightforward. Wrongful dismissal is a breach of the contract of employment and Mr. Whiting was entitled to be put in the position he would have been in had the contract been performed. Since his employment contract was not for a fixed term, he was entitled to reasonable notice of termination and, in lieu of notice, to damages in the amount by which what he would have earned had he remained in his former position with the respondent during the period of reasonable notice exceeded any amount he should have earned during that period had he acted reasonably in his own interests.
[17] Although the trial judge found Mr. Whiting failed to act reasonably when he rejected the TD Bank offer, she never undertook the threshold analysis. She made no finding as to what amount Mr. Whiting lost by not continuing to work for the respondent during the period of reasonable notice and she did not determine the amount he would have earned during that period had he taken the TD Bank offer. Rather, she compared Mr. Whiting’s average earnings over the past four years (counsel agree she was mistaken when she said “three” years) with his potential maximum earnings under the TD Bank offer and concluded they amounted to “substantially the same money”. Thus, she erred in her approach.
[18] Moreover, her comparison was fundamentally flawed by her use of a false analogy. In the vernacular, to compare a maximum to an average was to compare apples and oranges. Had she compared maximums, she would have compared Mr. Whiting’s potential maximum of $183,852 annually at TD Bank with his maximum past earnings of in excess of $300,000 in 2009. Further, in choosing to base her analysis on Mr. Whiting’s potential maximum annual income with the TD Bank, she overlooked the evidence that his sales “target” at TD Bank was to be only 20% of his base salary of $102,140, not the 80% that would give him the maximum, and that at the 20% rate, his earnings at TD Bank would have been about $122,500 annually. She also failed to consider Mr. Whiting’s evidence that, based on his prior experience with TD Bank, he thought the maximum he could realistically achieve would be about $150,000 annually.
[19] There were other errors in the trial judge’s comparative assessment. Counsel agree she was wrong to say the TD Bank offered stock options. It did not. Rather, it offered an opportunity to purchase stock at favourable prices, an opportunity of much less value to Mr. Whiting than stock options. Also, counsel agree she erred in stating the TD Bank offered a signing bonus. In fact, the TD Bank offered a retention bonus conditioned on Mr. Whiting remaining in its employ until March 1, 2011.
[20] It is apparent that these errors by the trial judge in her approach and in her comparative analysis led to her conclusion that the compensation offered by the TD Bank was “substantially the same” and that Mr. Whiting had therefore failed to mitigate his loss. In my view, these were overriding errors and they vitiate this finding.