Chambers. Q.B. A.D.1993 No. 3889 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: MARGARET GORDON and GABRIEL DUMONT INSTITUTE OF NATIVE STUDIES AND APPLIED RESEARCH, INC. DEFENDANT William J. Herle for the plaintiff Noel S. Sandomirsky, Q.C. for the defendant JUDGMENT BARCLAY J. May 9, 1996 This is a claim for wrongful dismissal. The plaintiff, Margaret Gordon ("Gordon"), age 48, was employed with the defendant, Gabriel Dumont Institute of Native Studies and Applied Research, Inc. (the "Gabriel Dumont Institute"), from January 3, 1983 to May 26, 1993, at which time she was dismissed. Gordon is married with three children and is the sole supporter of her family, as her husband is unemployed. Gordon was born on reserve near Balcarres where she received her elementary education. She then studied at the Lebret Indian Residential School. When she was in Grade 8, she left the school for the city. While she was in Regina she enrolled in an upgrading adult basic education program for non-status Indians where she received the equivalent of her grade XI. She also completed an eight month secretarial course. Gordon was initially hired by the Gabriel Dumont Institute as Clerk Steno II. After two years she was promoted to Executive Secretary. She held this position until July 1, 1989, when she was appointed the Administrative Co- ordinator for the Native Services Division. The Gabriel Dumont Institute is the educational institute for the Metis and Non-Status Indians. The Native Services Division was established within the institute to promote and encourage aboriginal students who are enrolled in the SIAST campuses in the major cities in Saskatchewan. As Administrative Co-ordinator, Gordon's responsibilities, in addition to her secretarial duties as assistant to the Director of the Division, are set out in the job description for the position which reads, in part, as follows: The Administrative Co-ordinator is accountable to the Director of Native Services Division for the provision of secretarial and administrative assistance. This position is one of many reporting to the Director of Native Services Division. The Administrative Co-ordinator is accountable for timely administrative activities which include meeting arrangements, information distribution, recording and transcribing of minutes of meetings, compiling information and preparing short program reports in consultation with the Director, assists in gathering, developing and maintaining statistical data base for the Native Services Division, responsible for compiling information for presentations, etc. as per instructions by the Director of Native Services Division, responsible for scheduling and/or adjusting the appointments and travel itinerary of the Director as required, as well as maintaining the appointment calendar of the Director. This position requires interaction with all levels of management, including board members, executive members, other staff and outside agencies which are party to the Division. The Administrative co-ordinator must have good knowledge and understanding of the relationship between all agencies which are party to the Division, e.g. Saskatchewan Education, SIAST, Gabriel Dumont Institute. Gordon's performance as Administrative Co-ordinator was appraised by her supervisor in both 1989 and 1990. It is clear from these appraisals, and other testimony, that Gordon was very competent, loyal and dedicated employee. In completing the Performance Appraisal of June, 1990, her Director articulated certain assignments and tasks she carried out that year. These duties were as follows: co-edited NSD "Communicator" newsletter (two editions) attended and participated in all NSD staff meetings, NMC meetings, provincial NSIM meeting, GDI annual Cultural Conference, and program graduations and openings participated in staff training and "piloting" of SIAST electronic mail system organized and co-ordinated first NSD inter-agency high school recruitment tour organized, designed, input and reproduced significant GDI and NSD documents: GDI Annual Report, Sask. Human Rights Commission Monitoring Report, NSD Evaluation Terms of Reference, SIAST Committee Report on Native Services participated in university class as beginning professional development activity. Gordon, in her own testimony, confirms that her duties and responsibilities were such that she was much more than an executive secretary. She said that compared to her other positions, she worked more on her own and that detailed instructions were not necessary. Gordon stated that she liaised with the Board of Governors and the department heads and assisted with promoting native services and education on the SIAST campus. As result of lack of funding for the Native Services Division, Gordon was dismissed from her position. The letter of termination from Gabriel Dumont Institute reads, in part, as follows: This is to formally notify you that you are being laid off from your current position of Administrative Coordinator of the Native Services Division in Regina, Saskatchewan. Your last day to report for work will be Wednesday, July 21, 1993. On behalf of the Gabriel Dumont Institute, thank you for your interest in the Institute and wish you well in future endeavors. Subsequent to receipt of that letter, Gordon was advised that as she had accrued 19.871 days of combined time- in-lieu and annual leave to July 21, 1993, she was asked to take this time off prior to her layoff date. Although Gordon did take this time off, the Gabriel Dumont Institute has now conceded that they were in error in making this request. After Gordon was dismissed she took number of steps to mitigate her loss. She either approached or filed applications with the First Nations Employment Service, the Minister of Saskatchewan Government Insurance, Keith Goulet, Saskatchewan Indian Federated College, the Aboriginal Recruitment Office with the Public Service Commission, Department of Health, Crown Investment Corporation, the Indian and Native Affairs Secretariat and other departments and Crown corporations of the Provincial Government. At the time of her dismissal, Gordon's annual gross salary was $35,352.00 per annum, plus benefits which included an employer's contribution to her pension plan of 5%, together with the contribution of Canada Pension Plan benefits as provided by law and some nominal health insurance. On July 30, 1993, Gordon received an offer of employment from the Federated Indian College for the position of Administrative Assistant and Secretary at salary of approximately $20,000.00 per annum. This was temporary position and the duties were primarily secretarial. Gordon had already applied to the College for the position of Executive Assistant to the Dean of Students. This position was equivalent to her previous employment with the Gabriel Dumont Institute. She eventually was hired for that position. Gordon turned down the offer of Administrative Assistant and Secretary because not only was the salary much lower, the position was temporary and the duties were materially different from those at her job with Gabriel Dumont Institute. I am satisfied that Gordon has taken all reasonablesteps to mitigate her loss. Furthermore, am cognizant of the fact that the onus is on the employer to establish that its former employee failed to mitigate her loss. The controlling authority on this issue is Red Deer College v. Michaels and Finn, 1975 CanLII 15 (SCC), [1976] S.C.R. 324, [1975] W.W.R. 575, N.R. 99. At pp. 580 and 581 [W.W.R.] Laskin C.J.A. stated: The matter is put as follows in two passages from Williston on Contracts (1968), 3rd ed., vol. 11, at pp. 30 and 312 "It seems to be the generally accepted rule that the burden of proof is upon the defendant to show that the plaintiff either found, or, by the exercise of proper industry in the search, could have procured other employment of an approximately similar kind reasonably adapted to his abilities, and that in absence of such proof the plaintiff is entitled to recover the salary fixed by the contract." Cheshire and Fifoot [Law of Contract (1972), 8th ed.] expressed the position more tersely as follows: "But the burden which lies on the defendant of proving that the plaintiff has failed in his duty of mitigation is by no means light one, for this is case where party already in breach of contract demands positive action from one who is often innocent of blame." In my opinion, the obiter statement of MacDonald J.A. in John East Iron Works Ltd. v. Labour Relations Bd. of Sask., 1949 CanLII 193 (SK CA), [1949] W.W.R. 842, [1949] D.L.R. 51 at 57 (Sask. C.A.), that "the onus of proving that the employee took reasonable efforts to obtain other employment and failed to do so is upon the employee" does not state the law correctly. contrast this observation with that in Yetton v. Eastwoods Froy, [1967] W.L.R. 104, [1966] All E.R. 353, wrongful dismissal case, where Blain J. said (at p. 115): ". if he can minimise his loss by reasonable course of conduct he should do so, though the onus is on the defaulting defendant to show that it could be or could have been done and is not being and has not been done". This case was cited with approval by Tallis J.A. of the Saskatchewan Court of Appeal in the case of McIntosh v. Saskatchewan Water Corp. (1989), 1989 CanLII 4781 (SK CA), 26 C.C.E.L. 196, 77 Sask. R. 81 (C.A.). Gabriel Dumont Institute submits that Gordon should have accepted the offer from the Federated Indian College for the position of Administrative Assistant and Secretary, and that any damages should be restricted to the difference between what she makes in that work and what she would have made had she received the notice to which she was entitled. disagree. The duty to take reasonable steps to obtain equivalent employment elsewhere, and to accept such employment if available, is not an obligation owed by the dismissed employee to the former employer to act in the employer's interests. Rather, the duty is to take such steps as reasonable person in the dismissed employee's position would take in his own interests to maintain his income and his position in his industry, trade or profession. The formeremployer has no right to expect that the former employee willaccept lower paying alternate employment with doubtfulprospects. The trial judge is entitled to find the plaintiff justified in rejecting the offer of employment in question. (See Forshaw v. Aluminex Extrusions Ltd. (1989), 27 C.C.E.L. 208 (B.C.C.A.)). In Ceci v. Comdisco Canada Ltd. (1994), C.C.E.L. (2d) 86 (B.C.S.C.), the plaintiff was 42 years old. He was still unemployed at the time of the trial. The court held he did not fail to mitigate his damages in turning down job offer from another company for new and experimental position. The position was risky and was equivalent to being an account manager. In his previous employment, he was the Regional Marketing Manager. At pp. 87 and 88, Gill J. states: One offer of employment was received, that being from Sybase Canada Ltd., computer software firm. The position was Major Account Manager (Western Canada), and involved marketing Sybase's products and services to 10 major accounts in Western Canada. This was new position at Sybase and it represented new marketing concept. It was Mr. Ceci's view that as the position was intended to test the viability of new approach, the job was too risky considering his family responsibilities. He was concerned that the position was equivalent in status to that of an account manager and Sybase was prepared to guarantee only four month non-recoverable draw. The defendant has argued that Mr. Ceci failed to mitigate, and that this failure includes turning down the position with Sybase. The position at Sybase was clearly risky, as Mr. Ceci believed, and would appear to have been equivalent to being an account manager. In my view, Mr. Ceci did not fail to mitigate by declining to pursue this employment. In my view, Gordon was not obligated to accept this offer for the position of Administrative Assistant and Secretary from the Federated Indian College. This position was lower paying alternate employment which was temporary and am satisfied that she acted reasonably in declining this offer. ASSESSMENT OF DAMAGES (a) Determination of Reasonable Notice In determining what constitutes reasonable notice in any case, courts have traditionally relied upon the statement of McRuer C.J. of the Ontario High Court in Bardal v. Globe Mail Ltd. 1960 CanLII 294 (ON SC), [1960] O.W.N. 253, 24 D.L.R. (2d) 140 (H.C.), at p. 145 [D.L.R.]: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant. In Wankling v. Saskatchewan Urban Municipalities Assn. (1989), 1989 CanLII 4625 (SK QB), 27 C.C.E.L. 31, 75 Sask. R. 252 (Q.B.), the plaintiff had been employed for 11ï¿½ years as executive director, and he was 61 years old. Wedge J. awarded 18 months' salary in lieu of notice. In Shiels v. Saskatchewan Government Insurance (1988), 1988 CanLII 5293 (SK QB), 20 C.C.E.L. 55, 67 Sask. R. 220, 51 D.L.R. (4th) 28 (Q.B.), the plaintiff, an expert in motor vehicle accident reconstruction, was dismissed after 10 years of service. MacLean J. held that he was entitled to 12 months' salary in lieu of notice. In Nupdal v. Saskatchewan Government Insurance, Sask. Q.B. No. 2525/82, J.C. Regina, Malone J., March 15, 1984 (unreported), the plaintiff, 38 years of age at the time of dismissal, had been employed for five years in an executive capacity. Malone J. held that he was entitled to 12 months' notice. In Roberts v. Versatile Farm Equipment (1987), C.C.E.L. 9, 1987 CanLII 4764 (SK QB), 53 Sask. R. 219 (Q.B.), the plaintiff, 55 years of age, had been employed in management capacity for 18 years before his constructive dismissal. Batten C.J.Q.B. considered his length of service, his responsibilities, the fact that his skills were acquired by on-the-job training rather than by formal education and that those skills were not easily transferable, and the unavailability of comparable positions, and she held the appropriate notice period was 16 months. In McIntosh, the Court of Appeal increased the notice period to six months for resource economist who has been employed for just over two years. The court held that the lower trial award placed insufficient emphasis upon the effect of the recession in Saskatchewan and the consequent unavailability of similar employment in the province. In Schwann v. Husky Oil Operations Ltd. (1989), 27 C.C.E.L. 103, 1989 CanLII 4743 (SK CA), 76 Sask. R. 97 (C.A.), the respondent had occupied managerial position for five years and four months. The number of managerial positions available at his level of employment was limited and the economic conditions which existed at that time made it difficult to obtain employment of suitable or comparable level. The court held that the appropriate measure of damages was 10 months' salary in lieu of notice. In the case at bar, Gordon had been employed with the Gabriel Dumont Institute for over ten years. In her most recent position as Administrative Co-ordinator with the Native Services Division, she was considered part of the management team by her supervisor. In her Performance Appraisal of June of 1991, her supervisor made the following comments as to her ability: Performance: As member of GDI's senior management team, Maggie has begun to display increasing confidence in her ability to contribute to the discussions and decision making which are now part of her role. In certain areas she has provided leadership to the Native Services Division campus staff and she is respected by her peers and colleagues both within GDI and SIAST. Her communication skills continue to be excellent. After considering all the above factors, I considerten months to be reasonable notice. Although Gordon initially was given two months' notice, Gabriel Dumont Institute erroneously requested her to take 19.871 days which she had earned as annual leave. Therefore, Gordon actually only received one months' notice. I therefore award her damages of nine months' salaryin lieu of notice. As Gordon's salary was $2,946.00 permonth, I therefore assess her damages under this head at$26,514.00. (b) Loss of Pension Benefits Gordon, as part of the employment contract, was paid an amount equal to 5% of her gross salary into pension fund. For the period of nine months, I assess damages under thishead at $1,325.00. (c) Canada Pension Plan Gabriel Dumont Institute was required by law to contribute to the Canada Pension on behalf of the employee. Gabriel Dumont Institute's contribution for nine months wouldhave been $564.00, and I assess damages under this head inthat amount. (d) Annual Leave Gordon had accumulated 19.871 days of combined time-in-lieu and annual leave. Gordon is to be compensated forthis time. This payment is not disputed by Gabriel Dumont Institute. (e) Pre-Judgment Interest Therefore damages are to be assessed as follows:Damages in lieu of notice $ 26,514.00Pension Benefits 1,325.00Canada Pension Plan 564.00Holiday pay 2,334.93TOTAL $30,737.93 Gordon shall have judgment against Gabriel DumontInstitute for $30,737.93, plus costs. In addition, I awardpre-judgment interest pursuant to The Pre-Judgment InterestAct, S.S. 1984-85-86, c. P-22.2, on the sum of $30,737.93,from the date of Gordon's dismissal.
A claim for wrongful dismissal. The position of executive secretary was discontinued for economic reasons. HELD: The plaintiff was awarded $30,737.93 plus costs plus pre-judgment interest. 1)The plaintiff had taken all reasonable steps to mitigate her losses. The duty is to take such steps as a reasonable person would take in his own interests to maintain his income and position in his industry, trade or profession. The former employer has no right to expect that the former employee will accept a lower paying alternative employment with doubtful prospects. 2)Reasonable notice would have been ten months. She had been erroneously requested to take 19.871 days as annual leave and therefore actually received one months' notice. Nine months salary at $26,514.00 plus $1,325 for lost pension benefits and $564 for the Canada Pension Plan were awarded. She was to be compensated for 19.871 days of combined time in lieu and annual leave.