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WRONGFUL DISMISSAL DAMAGES - Deductions

Thursday, May 28, 2020 @ 9:08 AM  


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Appeal by the employer from summary judgment allowing the respondent’s claim for wrongful dismissal and awarding her damages equal to the salary payable to her for the remainder of the fixed term contract. The respondent worked for the appellant as a professional accountant pursuant to a two-year contract. The appellant terminated the contract early alleging performance issues. The respondent found new employment a few months later. The chambers judge found the appellant did not have cause to dismiss the respondent. He found the appellant did not warn the respondent that she failed to meet expectations or give her time to meet those expectations. There was also no warning that she would be dismissed if she did not meet those expectations. The chambers judge concluded the respondent’s conduct was not grossly deficient to the extent that it would justify termination without warning.

HELD: Appeal allowed in part. The damage award was reduced to account for the fact that the respondent mitigated her damages. The chambers judge did not err in finding that the respondent was not dismissed for just cause or in her approach to determining what the employment relationship required of the respondent. The chambers judge fully appreciated the existence of the Letter of Intent under which the parties agreed to explore the possibility of the respondent acquiring the appellant’s accounting practice and properly took into consideration how it might have affected the employment relationship. The chambers judge did not err in finding that the Letter of Intent set out the non-binding terms of an arrangement that stood separate and apart from the employment contract and that nothing in the Letter of Intent expressly altered the employment relationship. There was nothing to support the chambers judge’s departure from the jurisprudence of this province, under which wrongful dismissal was addressed as an action for breach of contract, irrespective of whether the contract was a fixed term or indefinite term contract. The respondent’s claim to general damages was properly limited to the damages that flow from the breach of the employment agreement and was quantified by determining her actual loss. Since she in fact mitigated her loss, the income she earned from her new employment should have been deducted from her damages award.

Duxbury v. Crook, [2020] S.J. No. 132, Saskatchewan Court of Appeal, N.W. Caldwell, P.A. Whitmore and J.A. Tholl JJ.A., April 16, 2020. Digest No. TLD-May252020007