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WRONGFUL DISMISSAL DAMAGES - Aggravated damages

Wednesday, February 26, 2020 @ 8:05 AM  


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Appeal by the employer from damages awarded to the respondent under a one‑year fixed‑term contract of employment. After the respondent accepted the fixed term contract but before he commenced work, the appellant required the respondent to sign a second contract which provided for month-to-month employment terminable upon four weeks’ written notice or payment of one month’s salary in lieu of notice. The appellant terminated the contract before the employment began without cause. The respondent obtained alternative employment soon after the repudiation. The respondent then sued for damages under the fixed-term contract pursuant to which the entire annual salary was due and owing to him. The trial judge found that the second contract failed for lack of consideration and that the fixed-term contract was thus operative.

HELD: Appeal allowed in part. The award of aggravated damages was set aside. The second contract was much more than variation of the fixed‑term contract. By the terms of the second contract, the first contract would come to an end and would be replaced by an arrangement favourable to the employer and unfavourable to the employee. The second contract was premised upon the cancellation of the fixed‑term contract for consideration, but no consideration was provided. The appellant’s commitment to pay $1,000 to reimburse the legal fees incurred by the respondent in creating the fixed‑term contract was an insufficient benefit to the respondent to create the second contract as a binding agreement. Absent payment of $1,000, or a commitment given in the second contract to pay it, any discussion of such a payment was vague. There was no indication that the respondent’s feeling of strong dismay and anxiety for himself and family was beyond the normal distress and hurt feelings that were not compensable upon dismissal. There was considerable evidence that the respondent recovered quickly from his loss of the position.

Quach v. Mitrux Services Ltd., [2020] B.C.J. No. 88, British Columbia Court of Appeal, M.E. Saunders, D.C. Harris, J.J.L. Hunter JJ.A., January 23, 2020. Digest No. TLD-February242020006