Oral Reasons for Judgment
Mr. Justice C.M. Clyde


Counsel for Plaintiff L Coulter, Esq
Counsel for Defendant Stanley Wong, Esq

Date of Hearing: February 5, 1988
Written argument for Plaintiff received: February 12, 1988
Written argument for Defendant received: February 26, 1988
Reply by Plaintiff received: March 3, 1988

Action by Plaintiff for Wrongful Dismissal,

The Plaintiff was employed by the Defendant as a salesman from March 1976 to June 1984, a period of eight years and three months. The Plaintiff was dismissed without notice on June 22, 1984, and given severance pay for a period of eight weeks, amounting to $1,763.61. The Plaintiff through counsel demanded six month's salary plus…..

I have considered the written submissions of counsel for each of the litigants, and the separate books of authorities supplied. While it is true that the offers and counter-offers hereinbefore mentioned were all marked "without prejudice", they are admissible as evidence to prove the existence of an agreement to settle, but the action of the Defendant in arbitrarily deduction and remitting income tax unilaterally brought about a situation which deprived the Plaintiff of options otherwise open to him and varied the proposed terms of settlement to the extent that no final settlement was achieved. In light of this, I am unable to find any binding agreement to settle.

There begin no such binding agreement to settle, and neither provision to dismiss for just cause, not any evidence to support such dismissal for just cause, it follows in my view that the Plaintiff was wrongfully dismissed by the Defendant.

The authorities cited vary widely in their assessment of quantum damages. In this case, I feel it will be equitable to grant to the Plaintiff damages to the extent of eight month's salary and average commission, together with holiday pay as claimed. The evidence is that the Plaintiff was paid $1,300 per month, an average monthly commission of $400, and a car allowance of $275 per month, totalling $1,975 per month. He is also entitled in my view to holiday pay of $1,010.40. The total damage award will therefore be $16,810.40.

From this must be deducted monies already paid to and on behalf of the Plaintiff, namely:

Severance Pay $1,763.61
Holiday Pay: 15.16
Commission 384.04

The net judgment will therefore be $14,647.59 and the costs of these proceedings. If counsel are unable to agree upon a calculated of Court Order interest at the rates set out by the Registrar of this Court, they will have leave to speak to the matter further.

MARCH 22, 1988


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