(Oral) Because of time constraints, I am
going to give an oral judgment and it will not be as detailed and full as I
would otherwise like to have it.
This is a wrongful dismissal case and it
is rather unfortunate because I am satisfied that both parties are reasonable
people generally and were not trying to take advantage one of the other. It is
agreed by counsel that the two issues to be decided are: One, was the
termination of the Plaintiff a dismissal or resignation? And two, if it were a
dismissal, what is reasonable notice and what damages
the final report is signed by not
only Mr. Peterson and Mr Gobin but is signed by the personnel officer back in
Chicago, and the wording there is clear to me that the accused - not the
accused - that the Plaintiff was discharged, and it is quite clear that there
was a provision for filling in to the effect that he had resigned. Now, of
course, the Defendant - Mr. Peterson on behalf of the Defendant, says that that
was an error, and I must say I was impressed by his frankness and honesty in so
stating at this stage, but whether it is an error or not, it is a factor which
together with all of the other evidence must be placed in the scales and
I conclude, in spite of the very
persuasive a submission of defense counsel, that on the balance of
probabilities that the Plaintiff was dismissed and did not resign voluntarily
and I so find.
Now as to the question of the amount of
notice. Neither counsel have referred to the case of Battell v. Canem Systems
Ltd., decision of Mr. Justice Bouck, October 1981, reported in 31 B.C.L.R. 345,
and I refer to it for the - particularly for the method in which he deals with
a similar problem, not for the facts of the case but for the method, and which
is sat out at page 347.
After considering the authorities
submitted and submissions made by both council as to the appropriate notice, in
the present case, I fix it at six months.
The next issue is did the Plaintiff
mitigate his damages? There has been no submissions made by either counsel on
that, except that he did go to work in his own business and - and there is by
agreement - it is my fault - there is an agreement as to an amount so that
would, as I understand it, amount to mitigation. And apart from that, I do not
think there is anything else that I need to deal with as far as the amount is
concerned, is there?
MR. CLEMENS: I think my friend and I can
work out the calculations. If not we can come back, I take it. I expect that we
will be able to.
THE COURT: I hope you will because I think
enough time has been spent by both clients in this unfortunate situation, and
as I said at the outset, I do not think it was any deliberate intent for
anybody to take advantage of another. It was just one of those things in which
the parties did not make themselves clear.
MR COULTER: There will be costs, Your
THE COURT: Oh, yes. I think you are
entitled to your costs.
MR COULTER: We are seeking court order
interest form the date of dismissal, September 14, 1984.
THE COURT: Any way I can get around
MR CLEMENS: Court order interest is not
the subject of comment of the Court of Appeal in M.O.T.C. and - it operates the
same way as -
MR COULTER: Special damages
MR CLEMENS: Special damages. We shouldn't
have any difficulty -
THE COURT: All right, if you do
MR CLEMENS: Arriving at that
THE COURT: come back to me. If you have to
come back, please do make a big production about setting it on the trial list.
Kindly let me know and I will deal with it in Chambers.
MR CLEMENS: It's - Suttie and M.O.T.C. is
THE COURT: Very Well. Thank
MR COULTER: Thank you, Your
I hereby certify the foregoing to be a
true and accurate transcript of the proceedings transcribed to the best of my
skill and ability.