Bohay v. 567876 Saskatchewan Ltd.

• Jurisdiction: Saskatchewan
• Court: Provincial Court of Saskatchewan (Canada)
• Judge: Bogdasavich, P.C.J.
• Citation: (2009), 345 Sask.R. 190 (PC),2009 SKPC 128
• Date: 18 November 2009
• Subject Matter: DAMAGES,DAMAGE AWARDS,EMPLOYMENT LAW

Bohay v. 567876 Sask. (2009), 345 Sask.R. 190 (PC)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. NO.057

Lenna Leanne Bohay v. 567876 Saskatchewan Ltd.

(2009 No. 57; 2009 SKPC 128)

Indexed As: Bohay v. 567876 Saskatchewan Ltd.

Saskatchewan Provincial Court

Civil Division

Bogdasavich, P.C.J.

November 18, 2009.

Summary:

Bohay began employment with the defendant as a hair stylist in 1986. In January 2009, ownership of the defendant changed. On January 10, 2009, a meeting took place between Bohay and the new owners. During the meeting, Bohay directed profanity at the new owners. On January 13, 2009, Bohay was served with a notice of termination. Bohay brought an action, alleging wrongful dismissal.

The Saskatchewan Provincial Court held that Bohay was wrongfully dismissed. The period of reasonable notice was nine months. This was reduced by three months due to a failure to mitigate. The court granted Bohay judgment against the defendant for $16,388.40.

Damage Awards - Topic 1454

Contracts - Employment contracts - Wrongful dismissal - [See Master and Servant - Topic 8000 ].

Damages - Topic 1003

Mitigation - General principles - Mitigation - What constitutes - [See Master and Servant - Topic 8000 ].

Damages - Topic 6742

Contracts - Employment relationship or contract - Breach by employer - Loss of benefits - General - [See Master and Servant - Topic 8000 ].

Damages - Topic 6748

Contracts - Employment relationship or contract - Breach by employer - Loss of holiday or vacation pay - [See Master and Servant - Topic 8000 ].

Damages - Topic 6753

Contracts - Employment relationship or contract - Breach by employer - Mitigation by employee - [See Master and Servant - Topic 8000 ].

Master and Servant - Topic 7550

Dismissal or discipline of employees - Grounds - Cause or just cause defined - Bohay began employment with the defendant as a hair stylist in 1986 - In January 2009, ownership of the defendant changed - On January 10, 2009, a meeting took place between Bohay and the new owners - During the meeting, Bohay directed profanity at the new owners - On January 13, 2009, Bohay was served with a notice of termination - Bohay brought an action, alleging wrongful dismissal - The Saskatchewan Provincial Court held that Bohay was wrongfully dismissed - The court rejected the defendant's assertion that Bohay's insubordination and insolent behaviour constituted just cause for dismissal - Bohay's actions were not sufficient to justify a conclusion that the employment relationship had been destroyed - The profane outburst was out of character and did not justify summary dismissal - The defendant was required to provide a warning to Bohay that her behaviour had to improve before she could be dismissed - She had worked only four days for the new owners - Bohay was not afforded a fair opportunity to adjust to the change in ownership - See paragraphs 23 to 30.

Master and Servant - Topic 7554

Dismissal or discipline of employees - Grounds - Wilful disobedience or insubordination - [See Master and Servant - Topic 7550 ].

Master and Servant - Topic 7704

Dismissal or discipline of employees - Damages for wrongful dismissal - Measure of damages for wrongful dismissal - [See Master and Servant - Topic 8000 ].

Master and Servant - Topic 7716

Dismissal or discipline of employees - Damages for wrongful dismissal - Deductions - Earnings during notice period - [See Master and Servant - Topic 8000 ].

Master and Servant - Topic 7904

Dismissal without cause - Circumstances when dismissal not justified - [See Master and Servant - Topic 7550 ].

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - Bohay began employment with the defendant as a hair stylist in 1986 - In January 2009, ownership of the defendant changed - On January 10, 2009, a meeting took place between Bohay and the new owners - During the meeting, Bohay directed profanity at the new owners - On January 13, 2009, Bohay was served with a notice of termination - Bohay brought an action, alleging wrongful dismissal - The Saskatchewan Provincial Court held that Bohay's wrongful dismissal entitled her to damages - She had approximately 22 years of service in a non-management position and was 44 years old - A notice period of nine months was reasonable - She was re-employed approximately one week after termination in a coffee shop where she earned just over $9,000 in nine months of employment - Considering that her earnings as a hair stylist in 2008 were over $35,000, she had, to some degree, failed to mitigate her damages - The court reduced her award by three months in light of that - Her average monthly earnings had been $2,954.65 - For the six month notice period, she was entitled to $17,727.92 - The court also allowed two weeks of holiday pay at $681.41 per week for a total of $1,362.82 and 5% of her base salary for the loss of her health and dental benefits ($886.40) - The total award of $19,977.14 was reduced by $3,588.74 (representing Bohay's earnings at the coffee shop during the notice period) - The court granted Bohay judgment against the defendant for $16,388.40 - See paragraphs 31 to 39.

Master and Servant - Topic 8064

Dismissal without cause - Damages - Mitigation - [See Master and Servant - Topic 8000 ].

Cases Noticed:

Geluch v. Rosedale Golf Association Ltd., [2004] O.T.C. 543; 32 C.C.E.L.(3d) 177 (Sup. Ct.), refd to. [para. 24].

McKinley v. BC Tel et al., [2001] 2 S.C.R. 161; 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161, refd to. [para. 25].

Lazeski v. Lakeview School Division No. 142, [2007] Sask.R. Uned. 132; 2007 SKQB 109, dist. [para. 27].

Clare v. Moore Corp. (1989), 29 C.C.E.L. 41 (Ont. Dist. Ct.), dist. [para. 27].

Zenkewich v. Horizon Computer Solutions Inc. (2008), 325 Sask.R. 177 (Prov. Ct.), dist. [para. 27].

Degelman v. Anderson Industries Ltd. (1987), 61 Sask.R. 85 (Q.B.), refd to. [para. 28].

Riehl v. Westfair Foods Ltd. (1995), 132 Sask.R. 161 (Q.B.), refd to. [para. 28].

Graf v. Saskatoon Soccer Centre Inc., [2005] 4 W.W.R. 522; 250 Sask.R. 161 (Q.B.), refd to. [para. 28].

Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.), refd to. [para. 31].

Lazarowicz v. Orenda Engines Ltd., [1961] O.R. 141 (C.A.), refd to. [para. 32].

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200, refd to. [para. 32].

Machtinger v. HOJ Industries Ltd. - see Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd.

Bartlam v. Saskatchewan Crop Insurance Corp., [1993] 8 W.W.R. 671; 112 Sask.R. 136 (Q.B.), refd to. [para. 33].

Hogg v. Norac Systems International Inc. (2008), 317 Sask.R. 261 (Q.B.), refd to. [para. 36].

Authors and Works Noticed:

Harris, David, Wrongful Dismissal, generally [para. 34].

Levitt, Howard Alan, The Law of Dismissal in Canada (2nd Ed. 1992), generally [para. 29].

Levitt, Howard Alan, The Law of Dismissal in Canada (3rd Ed. 2003), generally [para. 28].

Counsel:

Jana M. Linner, for the plaintiff;

Ronald G. Gates, Q.C., for the defendant.

This action was heard by Bogdasavich, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on November 18, 2009.