Court of Appeal Decision of the Week

Employment Law: Termination; “Possible Eventual Transition…to [Elsewhere in Canada]” Insufficient to Extend Range of Damages

Case: Cabott v. Urban Systems Ltd., 2016 YKCA 4 (CanLII)

Keywords: Employment Law; Damages for Wrongful Dismissal; Level of Responsibility; Unilateral Life Plan

Synopsis:

The appellant, Urban Systems Ltd. appeals from an order of the Supreme Court of Yukon requiring it to pay damages for wrongful dismissal. Ms. Cabott, the employee, had been awarded 6 months’ notice just short of 14 months employment in a responsible professional position. Urban Systems contends the damage award is excessive. The Court of Appeal agrees; sets aside the order and grants judgment to Ms. Cabott based on four months’ notice.

Importance:

In assessing the length of notice, the Trial Judge referred to the factors listed in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.J.), and Saalfeld v. Absolute Software Corp., 2009 BCCA 18 (CanLII). His conclusion as to the appropriate length of notice was as follows (see para. 7):

However, when one considers also the plaintiff’s age of 53 years, the latter part of her career, the specialized professional skills, the expectation of secure employment and possible eventual transition of work and retirement to Vancouver, together with her role of senior and supervisory management in Whitehorse, I conclude an appropriate period of notice in this case is six months.

Saunders J.A., for the Court of Appeal, held the Trial Judge erred in referring to expectations of “possible eventual transition…to Vancouver”; the evidence went no further than describing Ms. Cabott’s desire to transfer to British Columbia. Rather, on the evidence, Ms. Cabott’s employment was “geographically specific”.

The Court of Appeal confirmed unilateral life plans are outside the contract unless and until expressed or brought within the employment relationship. For Saunders J.A., the Trial Judge placed undue weight on Ms. Cabott’s aspiration to return to British Columbia, and so the damage award “…wrongly compensates for a factor that does not admit of compensation” (see para. 22).

Citing Saalfeld v. Absolute Software Corp., 2009 BCCA 18 (CanLII) and Hall v. Quicksilver Resources Canada Inc., 2015 BCCA 291 (CanLII), the Court of Appeal states the “usual starting place” for determining the range of reasonable notice for a short term employee is 2 to 3 months (see para. 23).

What factors might extend the range?

Ms. Cabott was 53 years old at the time of trial; she holds a Master’s degree in town and regional planning. Her role with Urban Systems Ltd. included “leading and increasing…market presence with target clients in the Yukon, NWT Territories and Alaska, including First Nation communities, economic development corporations, incorporated communities and the territorial government” (quoted in the decision at para. 4).

The Court of Appeal determined the only feature of the case that would extend the range from the 2 to 3 months described in Saalfeld and Hall is Ms. Cabott’s level of responsibility.

Accordingly, the Court allowed Urban Systems Ltd.’s appeal, set aside the order for 6 months’ notice and replaced it with a judgment to Ms. Cabott based on 4 months’ notice. In other words, the Court of Appeal found Ms. Cabott’s level of responsibility with the appellant justified an extension of the damage award from 2 to 3 months to 4 months.

Counsel for the Appellant: Grant Macdonald, Q.C. (Anton, Campion & Macdonald, Whitehorse)

Counsel for the Respondent: Debra Fendrick (Austring, Fendrick & Fairman, Whitehorse)

Posted: Wednesday, June 01, 2016