Bahniuk v. Canada (Attorney General), (2016) 484 N.R. 10 (FCA)

• Judge: Webb, Rennie and Gleason, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 13, 2016
• Jurisdiction: Canada (Federal)
• Citations: (2016), 484 N.R. 10 (FCA);2016 FCA 127

Bahniuk v. Can. (A.G.) (2016), 484 N.R. 10 (FCA)

MLB headnote and full text

Temp. Cite: [2016] N.R. TBEd. MY.012

Stanley Bahniuk (appellant) v. Attorney General of Canada (respondent)

(A-329-15; 2016 FCA 127)

Indexed As: Bahniuk v. Canada (Attorney General)

Federal Court of Appeal

Webb, Rennie and Gleason, JJ.A.

April 26, 2016.

Summary:

A Public Service Labour Relations Board adjudicator, in the context of a dismissal grievance, ordered payment of damages in lieu of reinstatement. In the impugned portion of the award, the adjudicator determined that monies earned by the employee from self-employment were to be deducted from the damages that were ordered to be paid by the employer. The employee appealed the dismissal of his judicial review application involving the adjudicator's treatment of the issue of mitigation.

The Federal Court of Appeal allowed the appeal. "[I]n the unique circumstances of this case and in light of the way in which the adjudicator structured the damages award", the impugned portion of the award was unreasonable.

Damages - Topic 1064

Mitigation - In particular matters - Labour relations - A Public Service Labour Relations Board adjudicator, in the context of a dismissal grievance, ordered payment of damages in lieu of reinstatement - In the impugned portion of the award, the adjudicator determined that monies earned by the employee from self-employment were to be deducted from the damages that were ordered to be paid by the employer - The employee appealed the dismissal of his judicial review application - The Federal Court of Appeal allowed the appeal - "[T]he impugned portion of the adjudicator's award is unreasonable because it flies in the face of the authorities applicable to mitigation by contradicting the well-established principle that amounts set-off from contractual damages on account of mitigation must be referable to the loss for which damages were awarded. ... Under these principles, monies earned by a dismissed employee are deductible on account of mitigation only if they are referable to the loss for which the award of damages is made. Thus, in the common law wrongful dismissal context, only monies earned prior to the expiry of the notice period are set-off against damages payable, which are premised on losses incurred over the relevant notice period" - See paragraphs 16 to 21.

Damages - Topic 1064

Mitigation - In particular matters - Labour relations - A Public Service Labour Relations Board adjudicator, in the context of a dismissal grievance, ordered payment of damages in lieu of reinstatement - In the impugned portion of the award, the adjudicator determined that monies earned by the grievor from self-employment were to be deducted from the damages that were ordered to be paid by the employer - The grievor appealed the dismissal of his judicial review application - The Federal Court of Appeal allowed the appeal - The losses and amounts set-off in mitigation were not referable to the same period - The set-off of those amounts on account of mitigation was unreasonable - The adjudicator's damages award was referable to the 14 months following the date of termination - The grievor earned no monies during that 14 month period, and did not commence his business as a general contractor until several months later - Thus, the monies earned in the present case were not referable to the damages awarded by the adjudicator - "Here, given the unusual fact pattern, the finding that the grievor almost certainly would have been dismissed for cause shortly following reinstatement had he been reinstated, the modest nature of the damages awarded and the lengthy delay incurred in settling the remedy, the amounts set-off cannot be said to be referable to the period for which the damages were awarded. They thus cannot be monies earned in mitigation." - See paragraphs 24 to 27.

Labour Law - Topic 9165

Public service labour relations - Discipline and dismissal of civil or public servants - Remedies for wrongful dismissal or suspension - [See first Damages - Topic 1064 ].

Counsel:

Andrew Raven, for the appellant;

Karen Clifford, for the respondent.

Solicitors of Record:

Raven, Cameron, Ballantyne & Yazbeck LLP, Ottawa, Ontario, for the appellant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard at Ottawa, Ontario, on April 13, 2016, before Webb, Rennie and Gleason, JJ.A., of the Federal Court of Appeal. In reasons written by Gleason, J.A., the Court delivered the following judgment at Ottawa, Ontario, on April 26, 2016.