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[1] THE COURT: This application is for a
summary trial. The plaintiff claims damages for wrongful dismissal from her
employment by the defendant.
[2] The application is pursuant to Rule
18A of the Rules of Court. Both counsel are in agreement that the case is
appropriate for determination by summary trial and I also agree. Although there
are some issues of credibility raised with respect to the affidavits and
examination for discovery of Ms. Luis, those can be resolved sufficiently to
enable me to give judgment on this matter.
[3] The issues to be determined are really
only two: firstly, the appropriate period of notice; and, secondly, if there
was a failure on the part of the plaintiff to mitigate her damages and, if so,
what the effect of that should be. There is no issue of cause for dismissal. A
letter of recommendation provided to Ms. Luis indicated that her performance
was satisfactory, and the evidence is that the lay-off was as a result of
economic down-sizing. There is also no issue with respect to the amount for
calculation of the award, as Ms. Luis had a salary of twenty-seven thousand
fifty dollars a year, and the claim for additional benefits has been
abandoned.
[4] Ms. Luis was employed by the defendant
as a secretary on July 17th, 1989. She worked in that position on a full-time
basis until April 16th, 1999, when her employment was terminated by the
defendant. She had just had her forty-eighth birthday at that time. As I said,
she was paid an annual salary of twenty-seven thousand and fifty dollars. She
was provided extended health, medical, dental, and life insurance benefits,
which were extended voluntarily by the defendant beyond the notice period, and
the plaintiff is not …
[12]…regard that one month would be
reasonable reduction for the failure to mitigate, and so find.
[13] In the result I find that the
plaintiff, before the consideration of the issue of failure to mitigate, would
have been entitled to damages of eight months. That will be reduced by one
month as a result of her failure to mitigate. She will be entitled to seven
months' pay in lieu of notice, based on a salary of twenty-seven thousand fifty
dollars per year, less the amount paid to her of eight weeks' severance pay.
She will also be entitled to court order interest on that amount. Unless there
is some information of which I am not presently aware, she will also be
entitled to her costs on scale three.
[14] THE COURT: Ms.Boyd, do you need a
moment to figure out if you need to make any further submissions on
costs?
[15] MS. BOYD: I think I probably do,
because my brain doesn't work that quickly with numbers. If I could have three
minutes. Maybe you've already calculated it. My friend may have submissions to
make on costs as well, for that matter.
[16] THE COURT: If it does take some
working out and counsel want to deal with this by way of written submissions
later on that's fine too.
[17] MR COULTER: I may, My Lord. We're
just trying to - - it's not because of an offer to settle, a formal offer or
anything. We're just making sure that the net judgment is over the ten thousand
dollar threshold for Supreme Court. It does seem to be based on my rough
math.
[18] Yes. In any event, it is not a case
where I would have been inclined to deprive the plaintiff of costs, because I
think it was reasonable to bring the action in this court rather than Small
Claims. Anything further, then, on the issue of costs?
[19] MR. COULTER: No.
[20] THE COURT: Ms. Boyd?
[21] MS. BOYD: I don't think there's
anything further to say on costs.
[22] THE COURT: Very well. The plaintiff
will be entitled to her costs on scale three.
Justice A.F. Wilson
Comments / Questions?
Mr. Lawrence W. Coulter
Employment Lawyer
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