Cases

No. F841896
New Westminster Registry

IN THE COUNTY COURT OF NEW WESTMINSTER
New Westminster, BC
February 14, 1986

Reasons for Judgment
of
McTaggart, C.C.J.

BETWEEN: RAY WALSH PLAINTIFF
AND: DIETZGEN OF CANADA LTD. DEFENDANT

(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 weighed.

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 Honour?

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 that?

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 case.

THE COURT: Very Well. Thank you.

MR COULTER: Thank you, Your Honour

(CONCLUDED)

I hereby certify the foregoing to be a true and accurate transcript of the proceedings transcribed to the best of my skill and ability.

Celeste Dick
Official Reporter

 

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