Cohnstaedt v. University of Regina, (1994) 116 Sask.R. 241 (CA)

• Judge: Vancise, Sherstobitoff and Lane, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: March 15, 1994
• Jurisdiction: Saskatchewan
• Citations: (1994), 116 Sask.R. 241 (CA)

Cohnstaedt v. Regina Univ. (1994), 116 Sask.R. 241 (CA);

    59 W.A.C. 241

MLB headnote and full text

Dr. Martin L. Cohnstaedt (plaintiff/appellant) v. University of Regina (defendant/respondent)

(No. 745)

Indexed As: Cohnstaedt v. University of Regina

Saskatchewan Court of Appeal

Vancise, Sherstobitoff and Lane, JJ.A.

March 15, 1994.

Summary:

A tenured university professor was dis­missed. The professor sued the university for damages. The action was settled before trial. The settlement agreement provided that the professor would continue duties assigned to him by the Deans, his work was to be assessed and, if his performance was judged to be inadequate, the professor was required to take early retirement. The Deans' assess­ment proved unsatisfactory and the univer­sity sought to enforce the retirement clause as per the settlement agreement. The pro­fessor sued for a declaration that his termi­nation was invalid and claimed salary and other damages. The professor also claimed the procedure followed breached the settle­ment agreement.

The Saskatchewan Court of Queen's Bench, in a judgment reported 45 Sask.R. 232, found that the settlement agreement was not breached and dismissed the professor's action. The professor appealed.

The Saskatchewan Court of Appeal, in a judgment reported 45 Sask.R. 197, allowed the appeal. The court held that the rules of procedural fairness applied. It was an implied term of the settlement agreement that the professor would be assessed accord­ing to the usual factors for evaluating the work of a full-time professor and this term was breached. The court held that the parties had agreed that the appropriate measure of damages was loss of salary and pension benefits. The court awarded damages on that basis. The university appealed.

The Supreme Court of Canada, in a judg­ment reported 93 N.R. 169; 75 Sask.R. 211, allowed the appeal in part. The court agreed that the university breached the settlement agreement respecting the assessment of his performance. Accordingly, the professor was wrongfully dismissed. The court remitted the matter of damages to the trial judge for determination.

The Saskatchewan Court of Queen's Bench, in a judgment reported 88 Sask.R. 94, assessed damages as if the professor had been wrongfully dismissed. The court fixed damages at one year's salary less pension benefits received. The professor appealed the damages awarded.

The Saskatchewan Court of Appeal, Sher­stobitoff, J.A., dissenting, allowed the appeal in part. The court held that the proper measure of damages was the probability of a favourable assessment and reinstatement multiplied by the probability of working until normal retirement age multiplied by the salary and pension that would have been earned until retirement. The court further reduced the award by 30% for the profes­sor's failure to mitigate his loss. The court affirmed that no prejudgment interest was payable.

Damage Awards - Topic 1454

Contracts - Employment contracts - Wrongful dismissal - Tenured university professor - [See Education - Topic 4425 ].

Damages - Topic 6741

Contracts - Employment contract - Measure of damages for breach by employer - Tenured university professor - [See Education - Topic 4425 ].

Damages - Topic 6753

Contracts - Employment contract - Measure of damages for breach by employer - Mitigation by employee - Duty to mitigate - [See Education - Topic 4425 ].

Education - Topic 4425

Universities - Professors - Wrongful dismissal - Damages - An agreement between a tenured professor facing forced retirement and the university provided for an assessment of his work after one year - If the assessment was unfavourable, he would be forced to retire early - The university conducted an improper assess­ment, thereby breaching the agreement - The trial judge assessed damages on the basis of a wrongful dismissal (one year's salary less pension benefits received) - The Saskatchewan Court of Appeal held that damages were for breach of the a­greement, not wrongful dismissal - Dam­ages were not for loss of a full-tenured position - His employment status had been altered by the agreement - Damages equalled the probability of a favourable assessment and reinstatement (30%) times the probability of working until normal retirement age (80%) times the salary and pension to be earned until normal retire­ment age ($309,750) - The damage award of $74,340 was reduced a further 30% (to $52,000) because of the professor's failure to mitigate his loss - See paragraphs 32 to 71.

Interest - Topic 5045

As damages - Prejudgment interest - Statutes - Application of - A professor was terminated in 1978 after an improper assessment under an agreement which provided for early retirement if an unfavourable assessment was made - The professor was awarded damages and claimed prejudgment interest - Section 8 of the Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2, provided that the Act did not apply to actions which arose before the Act came into force - The Saskatchewan Court of Appeal affirmed that the professor was not entitled to pre­judgment interest - See paragraphs 72 to 74.

Interest - Topic 5104

As damages - Prejudgment interest - Breach of contract - Employment con­tracts - [See Interest - Topic 5045 ].

Master and Servant - Topic 8000

Dismissal without cause - Notice of dis­missal - Reasonable notice - What consti­tutes - [See Education - Topic 4425 ].

Cases Noticed:

Ayre v. University of Manitoba (1976), 65 D.L.R.(3d) 747 (Man. C.A.), refd to. [para. 18].

Brown v. Waterloo Regional Board of Commissioners of Police (1983), 150 D.L.R.(3d) 729 (Ont. C.A.), refd to. [para. 19].

Robinson v. Harman (1848), 154 E.R. 363 (Ex. Ct.), refd to. [para. 33].

Wertheim v. Chicoutimi Pulp Co., [1911] A.C. 301 (P.C.), refd to. [para. 33].

Gunton v. Richmond-Upon-Thames, London Borough Council, [1980] 3 All E.R. 577 (C.A.), refd to. [para. 37].

Michaels et al. v. Red Deer College, [1976] 2 S.C.R. 324; 5 N.R. 99, refd to. [para. 40].

McWhirter v. University of Alberta (Gov­ernors) (1977), 7 A.R. 376; 80 D.L.R.(3d) 609 (T.D.), refd to. [para. 40].

Chaplin v. Hicks, [1911] 2 K.B. 786 (C.A.), refd to. [para. 49].

Mallet v. McMonagle, [1970] A.C. 166 (H.L.), refd to. [para. 50].

Davies v. Taylor, [1972] 3 All E.R. 836 (H.L.), refd to. [para. 51].

Toronto Hockey Club v. Arena Gardens of Toronto Ltd., [1925] 4 D.L.R. 546 (Ont. C.A.), affd. [1926] 4 D.L.R. 1 (P.C.), refd to. [para. 51].

Carson v. Willits, [1930] 4 D.L.R. 977 (Ont. C.A.), refd to. [para. 51].

Kinkel v. Hyman, [1939] S.C.R. 364, refd to. [para. 53].

BEM Enterprises Ltd. et al. v. Campeau Corp. (1981), 32 B.C.L.R. 116 (C.A.), refd to. [para. 54].

Multi-Malls Inc. v. Tex-Mall Properties Ltd. (1980), 108 D.L.R.(3d) 399 (Ont. H.C.), refd to. [para. 54].

Western Canada Directories Ltd. v. Mid­west Litho Ltd. (1973), 37 D.L.R.(3d) 139 (Sask. C.A.), refd to. [para. 67].

Toronto Railway Co. v. Toronto (City), [1906] A.C. 117 (P.C.), refd to. [para. 73].

Foundation Co. of Canada Ltd. v. Prince Albert Pulp Co. et al., [1976] 4 W.W.R. 586; 8 N.R. 181 (S.C.C.), refd to. [para. 73].

Homer v. Toronto-Dominion Bank (1990), 83 Sask.R. 300 (C.A.), refd to. [para. 94].

Boone v. R., [1934] S.C.R. 457, refd to. [para. 100].

New Zealand Shipping Co. v. Societe des Ateliers et Chantiers de France, [1919] A.C. 1 (H.L.), refd to. [para. 100].

Commissioner of Agricultural Loans v. Irwin, [1940] O.R. 490, affd. [1942] S.C.R. 196, refd to. [para. 100].

Horseshoe Creek Farms Ltd. v. Sterling Structures Co. (No. 2) (1982), 15 Sask.R. 57 (C.A.), refd to. [para. 116].

Statutes Noticed:

Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2, generally [para. 14].

Queen's Bench Act, R.S.S. 1978, c. Q-1, generally [para. 8].

University of Regina Act, R.S.S. 1978, c. U-5, generally [para. 18].

Authors and Works Noticed:

Batt, The Law of Master and Servant (5th Ed. 1967), p. 243 [para. 94].

Beaupré, Michael, Interpreting Bilingual Legislation (2nd Ed. 1986), p. 82, note 148 [para. 29].

Christie, I.M., and Mullan, D.J., Canadian Academic Tenure and Employment: An Uncertain Future? (1982), 7 Dalhousie L.J. 72, pp. 99 to 120 [para. 43].

McGregor on Damages (14th Ed. 1980), pp. 635, 636 [para. 37].

Sharpe, R.J., Injunctions and Specific Performance (2nd Ed. 1992), pp. 10-8 to 10-10 [para. 39].

Waddams, S.M., The Law of Damages (2nd Ed. 1993), pp. 1-122 [para. 39].

Counsel:

A.J. Beke, Q.C., and J. Nugent, for the appellant;

G.J. Kuski, Q.C., for the respondent.

This appeal was heard on December 1, 1992, before Vancise, Sherstobitoff and Lane, JJ.A., of the Saskatchewan Court of Appeal.

On March 15, 1994, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Vancise, J.A. (Lane, J.A., concurring) - see paragraphs 1 to 76;

Sherstobitoff, J.A., dissenting - see paragraphs 77 to 119.