Cohnstaedt v. University of Regina, (1990) 88 Sask.R. 94 (QB)

• Judge: Matheson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 26, 1990
• Jurisdiction: Saskatchewan
• Citations: (1990), 88 Sask.R. 94 (QB)

Cohnstaedt v. Regina Univ. (1990), 88 Sask.R. 94 (QB)

MLB headnote and full text

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

(No. 105 A.D. 1979)

Indexed As: Cohnstaedt v. University of Regina

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Matheson, J.

November 26, 1990.

Summary:

A tenured university professor was dismissed from his employment. The professor sued the university for damages. The action was settled before trial by an agreement. Under the agreement the professor was to continue performing such duties as were assigned to him by the Deans and his work during this time was to be assessed by them; if the professor's performance was judged to be inadequate, then under the agreement he was obliged to take an early retirement. The Deans' assessment proved unsatisfactory and the university sought to enforce the retirement clause. The professor sued for a declaration that his termination was invalid and claimed salary and other damages. The professor also claimed that the procedure followed was in breach of the agreement. At the end of the trial, the professor sought to amend his statement of claim to incorporate allegations that there was bias in the assessment process and that the Deans failed to act fairly towards him in assigning and assessing his work.

The Saskatchewan Court of Queen's Bench, in a decision reported in 45 Sask.R. 232, refused to allow the proposed amendment to the statement of claim, found that there was no breach of the agreement and dismissed the professor's action. The professor appealed.

The Saskatchewan Court of Appeal, in a decision reported in [1987] 2 W.W.R. 1; 45 Sask.R. 197; 18 Admin. L.R. 1; 12 C.C.E.L. 265, allowed the appeal. The court held that the amendment to the statement of claim should have been granted. The Court of Appeal held that the rule of procedural fairness applied and found an implied term in the agreement that the professor would be assessed according to the usual factors for evaluating the work of a full-time professor. The Court of Appeal held that this implied term was breached by the university. The Court of Appeal held that the parties had agreed as to the appropriate amount of damages, namely, loss of salary and pension benefits, and awarded the professor that amount in damages. Hall, J.A., dissenting, in the Court of Appeal, would have dismissed the appeal. The university appealed.

The Supreme Court of Canada, in a decision reported at [1989] 2 S.C.R. 1011; 93 N.R. 169; 75 Sask.R. 211, allowed the appeal in part. The Supreme Court agreed that the university breached its agreement with the professor respecting the assessment of his performance. As a result the professor's employment was wrongfully terminated. The Supreme Court refused to discuss the arguments concerning natural justice and procedural fairness. The court remitted the question of damages to the trial judge for a determination of the appropriate award.

The Saskatchewan Court of Queen's Bench assessed damages accordingly.

Damage Awards - Topic 1454

Contracts - Employment contracts - Wrongful dismissal - Tenured university professor - A university professor hired in 1967 had not taught an accredited course since 1971 - The professor suffered from depression - In May of 1977, the parties agreed that if the professor failed an assessment in 12 months' time, he would take early retirement - The professor was dismissed in 1978 - The Supreme Court of Canada held that the university breached the agreement and was liable for damages on the ground of wrongful dismissal - See paragraph 30 - The Saskatchewan Court of Queen's Bench awarded damages equal to 12 months' net salary, less pension benefits - The court observed that even if the university had complied with the agreement, the termination would not have been avoided - See paragraph 57.

Damages - Topic 6741

Contracts - Employment contract - Measure of damages for breach by employer - Tenured university professor - [See Damage Awards - Topic 1454].

Damages - Topic 6753

Contracts - Employment contract - Measure of damages for breach by employer - Mitigation by employee - Duty to mitigate - A tenured university professor was wrongfully dismissed - The professor sued the university - The professor made little or no effort to mitigate his loss by seeking another position - However, the university failed to meet the onus which was on it to prove that the professor failed to comply with his duty to mitigate the loss - Therefore, the Saskatchewan Court of Queen's Bench declined to reduce the damage award because of a failure to mitigate - See paragraphs 58 to 61.

Education - Topic 4323

Universities - Professors - Status of - A tenured university professor was dismissed by the university - The professor sued for wrongful dismissal - The Saskatchewan Court of Queen's Bench discussed the remedies available - The court stated that while claims for reinstatement as a statutory office-holder (as opposed to an award of damages), have had some success, it also observed that the matter remained unsettled - See paragraphs 22 to 30.

Education - Topic 4422

Universities - Professors - Wrongful dismissal - Tenured professors - Remedies - Reinstatement v. Damages - [See Education - Topic 4323].

Education - Topic 4425

Universities - Professors - Wrongful dismissal - Damages - [See Damage Awards - Topic 1454].

Interest - Topic 5045

Interest as damages - Prejudgment interest - Statutes - Application of - The plaintiff was dismissed by his employer in 1978 - The plaintiff sued for damages and interest on the ground of wrongful dismissal - The employer submitted that interest could not be awarded - Section 8 of the Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2, stated that the Act did not apply to actions which arose before the Act came into force - The Saskatchewan Court of Queen's Bench declined to award interest - See paragraph 64.

Interest - Topic 5104

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

Master and Servant - Topic 2387

Breach of contract - Remedies of employee - Specific performance - Tenured university professor - [See Education - Topic 4323].

Master and Servant - Topic 8000

Dismissal of employees - Notice of dismissal - Reasonable notice - What constitutes - Tenured university professor - [See Damage Awards - Topic 1454].

Cases Noticed:

Cohnstaedt v. University of Regina, [1987] 2 W.W.R. 1; 45 Sask.R. 197; 18 Admin. L.R. 1; 12 C.C.E.L. 265, refd to. [para. 3].

Craig v. Governors of University of Toronto (1923), 53 O.L.R. 312, consd. [para. 25].

McWhirter v. Governors of the University of Alberta (1977), 7 A.R. 376; 80 D.L.R.(3d) 609 (Alta.), consd. [para. 35].

McWhirter v. Governors of University of Alberta (1979), 18 A.R. 145; 103 D.L.R.(3d) 255, consd. [para. 37].

Michaels and Finn v. Red Deer College, [1974] 2 W.W.R. 416 (Alta. C.A.), consd. [para. 38].

Hill v. C.A. Parsons & Co. Ltd., [1971] 3 All E.R. 1345, consd. [para. 39].

Statutes Noticed:

Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2, sect. 8 [para. 64].

University of Regina Act, R.S.S. 1978, c. U-5, sect. 62(f)(i), sect. 62(f)(ii) [para. 22].

Authors and Works Noticed:

Campbell, R.L., Tenure and Tenure Review in Canadian Universities (1981), 26 McGill, L.J., 362, pp. 363 [para. 24]; 365 [para. 43].

Christie, I.M., and Mullan, D.J., Canadian Academic Tenure and Employment: An Uncertain Future? (1982), 7 Dal. L.J., 72, p. 75 [para. 26].

Harris, D., Wrongful Dismissal (2nd Ed. 1980), p. 66 [para. 33].

Pitch, Harvin D., Damages for Breach of Contract (1985), p. 123 [para. 58].

Counsel:

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

G.J. Kuski, Q.C., and M.A. Hurlbert, for the defendant.

This matter was heard by Matheson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on November 26, 1990.