Coppola v. Capital Pontiac Buick Cadillac GMC Ltd., (2013) 417 Sask.R. 213 (CA)

• Judge: Lane, Richards and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 11, 2012
• Jurisdiction: Saskatchewan
• Citations: (2013), 417 Sask.R. 213 (CA);2013 SKCA 80

Coppola v. Capital Pontiac Buick (2013), 417 Sask.R. 213 (CA);

    580 W.A.C. 213

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. JL.079

Capital Pontiac Buick Cadillac GMC Ltd. (defendant/appellant) v. Sergio Coppola (plaintiff/respondent)

(CACV2169; 2013 SKCA 80)

Indexed As: Coppola v. Capital Pontiac Buick Cadillac GMC Ltd.

Saskatchewan Court of Appeal

Lane, Richards and Caldwell, JJ.A.

July 22, 2013.

Summary:

Coppola sued Capital Pontiac Buick Cadillac GMC Ltd. for unjust dismissal. In addition to loss of salary and benefits, Coppola also claimed damages for loss of reputation and mental distress because of allegations of wrongdoing made by Capital Pontiac some time after he was terminated.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2011), 382 Sask.R. 125, found Coppola to have been wrongfully dismissed and awarded $66,384.74 as pay in lieu of notice, $1,650 for loss of vehicle benefit and $20,000 in aggravated damages, with pre-judgment interest and costs. Capital Pontiac appealed.

The Saskatchewan Court of Appeal allowed the appeal with respect to the award of pre-judgment interest but otherwise dismissed the appeal. Even though the awards of pay in lieu of notice and moral damages were at the high end of the ranges of reasonable awards, the trial judge did not err in principle and neither award invited appellate intervention. The award of prejudgment interest was unjust in the circumstances. The court reduced the overall award of prejudgment interest by 50% on account of Coppola's delay in prosecuting his case.

Damage Awards - Topic 1454

Contracts - Employment contracts - Wrongful dismissal - [See Master and Servant - Topic 7704 ].

Damage Awards - Topic 2411

Aggravated damages - Wrongful dismissal - [See both Master and Servant - Topic 8063 ].

Interest - Topic 5008

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Entitlement - The plaintiff was hired as a car salesperson for the defendant in 2000 - In 2002, he was dismissed without cause - At trial the plaintiff was found to have been wrongfully dismissed and was awarded $66,384.74 as pay in lieu of notice, $1,650 for loss of vehicle benefit and $20,000 in moral (aggravated) damages, with prejudgment interest - The defendant appealed, raising two issues with respect to prejudgment interest - The Saskatchewan Court of Appeal found the overall award of prejudgment interest to be unjust and substituted a reduced award equal to 50% of the prejudgment interest calculated on the amounts awarded for pay in lieu of notice, for loss of vehicle benefit and moral damages - There was no adequate explanation for the delay in advancing this matter, which could have been brought to trial in at least half the time, i.e., in under four years - As to the second issue, the fact that the principles which underpinned the statutory bar under s. 5(2)(d) of the Pre-judgment Interest Act, which prohibited an award of prejudgment interest on "exemplary or punitive damages", did not support a bar on prejudgment interest on moral damages - See paragraphs 34 to 45.

Interest - Topic 5012.1

Interest as damages (prejudgment interest) - General principles - Aggravated damages - [See Interest - Topic 5008 ].

Interest - Topic 5525

Interest as damages (prejudgment interest) - Bars - Delay - [See Interest - Topic 5008 ].

Master and Servant - Topic 7704

Dismissal of employees - Damages for wrongful dismissal - Measure of - The plaintiff was earning the equivalent of $154,526.16 per year or $12,877.18 per month at the time of his wrongful dismissal - The trial judge held that the plaintiff ought to have received six months' notice prior to termination - The amount of salary he would have earned during the six month reasonable notice period was $77,263.08 - He received $8,535.76 representing two weeks' notice pursuant to the Labour Standards Act - Also to be deducted was the amount that he earned during the reasonable notice period ($2,342.58) - The balance payable by the defendant as pay in lieu of notice was $66,384.74 - In addition, the defendant was ordered to pay $1,650 for loss of the vehicle benefit during the reasonable notice period - Finally, the defendant was also ordered to pay $20,000 in aggravated damages - The defendant appealed - The Saskatchewan Court of Appeal allowed the appeal with respect to the award of pre-judgment interest but otherwise dismissed the appeal.

Master and Servant - Topic 7707

Dismissal of employees - Damages for wrongful dismissal - Mental distress - [See both Master and Servant - Topic 8063 ].

Master and Servant - Topic 7713

Dismissal of employees - Damages for wrongful dismissal - Aggravated damages - [See both Master and Servant - Topic 8063 ].

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - Reasonable notice - What constitutes - At trial the plaintiff was found to have been wrongfully dismissed and the judge assessed the damages - The defendant's grounds of appeal addressed whether the trial judge erred in awarding six months' pay in lieu of notice - The Saskatchewan Court of Appeal stated that the trial judge, in his assessment of the reasonable notice period, correctly identified the jurisprudence which explained how reasonable notice was to be assessed in a case of wrongful dismissal - "Since Machtinger [v. HOJ Industries Ltd.], the assessment of reasonable notice has been a context-driven exercise undertaken by considering the four central, but non-exhaustive, factors set out in Bardal [v. Globe & Mail Ltd.]: i) the character of the employment; ii) the length of service; iii) the age of the former employee and the availability of similar employment; and iv) the employee's experience, training, and qualifications." - See paragraphs 6 and 7.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - Reasonable notice - What constitutes - At trial the plaintiff was found to have been wrongfully dismissed and the judge assessed the damages - The defendant's grounds of appeal addressed whether the trial judge erred in awarding six months' pay in lieu of notice - The Saskatchewan Court of Appeal, in identifying the standard of appellate review, first noted that the issue was "whether the trial judge properly assessed the specific circumstances of this case. In this respect, the standard of review cautions an appellate court to show a certain measure of deference to the trial judge's decision. ... The standard of deference acknowledges the highly contextual nature of the determination of a reasonable notice period and the role of the trial judge in that subjective determination. ... Put simply, the standard of appellate review of an award of damages on wrongful dismissal is such that, notwithstanding that the trial judge may have erred in principle, if the award is within the accepted range of possible awards the appellate court should be reluctant to interfere." - See paragraphs 8 to 11.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - Reasonable notice - What constitutes - The Saskatchewan Court of Appeal discussed the "rule of thumb" approach to calculating the period of reasonable notice in wrongful dismissal compensation, and concluded that the approach "is neither doctrinally sound nor supported by the majority of cases." - See paragraphs 15 to 23.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - Reasonable notice - What constitutes - The plaintiff was 36 years old when he was hired as a car salesperson for the defendant in 2000 - In 2002, he was dismissed without cause - At trial the plaintiff was found to have been wrongfully dismissed and the judge assessed the damages - The defendant's grounds of appeal addressed whether the trial judge erred in awarding six months' pay in lieu of notice - The Saskatchewan Court of Appeal held that, given the standard of review, the award was immune from appellate intervention - The award of six months' pay in lieu of notice was "right at the high-end of the range of reasonable notice" - On the court's own analysis, based on its review of the jurisprudence and the specific circumstances of this case, it would have placed the appropriate notice period in the middle of the accepted range, i.e., at three months - The trial judge's rejection of the "one month's notice per year of service" rule of thumb did not signal an error in principle - The award was still within the accepted range and was not the product of an overemphasis of or disproportionate weight having been given to the plaintiff's relatively short length of service - See paragraphs 12 to 24.

Master and Servant - Topic 8063

Dismissal without cause - Damages - Mental distress - At trial the plaintiff was found to have been wrongfully dismissed and the judge assessed the damages - The defendant's grounds of appeal addressed whether the trial judge erred in awarding $20,000 in aggravated damages - The Saskatchewan Court of Appeal started its analysis "by settling on a label for these types of damages. The appropriate label is 'moral damages' as this is the label implicitly adopted by the Supreme Court of Canada in Keays [v. Honda Canada Inc.] ... Moral damages are generally aggravating in nature and, therefore, appear to take the place of or, more properly, are the same as aggravated damages in the context of wrongful dismissal cases. ... In the employment context then, moral damages are available whenever the employer breaches the duty of good faith and fair dealing it owes to its employee in the dismissal of its employee" - See paragraphs 25 and 26.

Master and Servant - Topic 8063

Dismissal without cause - Damages - Mental distress - At trial the plaintiff was found to have been wrongfully dismissed and the judge assessed the damages - The defendant's grounds of appeal addressed whether the judge erred in awarding $20,000 in moral damages - The Saskatchewan Court of Appeal upheld the award - The defendant breached its "Wallace duty" to the plaintiff through its actions in the manner of his dismissal - The reasons for dismissal were not truthful and were followed by the very serious allegation that the plaintiff had been dismissed for fraud - In addition, a low-level employee had perpetuated the unfounded allegation to a potential business partner of the plaintiff - The court also addressed the evidentiary issue of whether a plaintiff must adduce medical evidence to prove mental distress - "While evidence such as expert medical reports and itemized expense receipts would be of considerable assistance to a court in determining the quantum of moral damages, it is sensible to hold that medical evidence is not strictly necessary to prove the existence of mental distress provided there is an adequate factual basis to support an award of moral damages based on the employer's conduct" - The quantum of moral damages was "context-driven" - The award of $20,000 was near the upper end of the range of moral damages, but nonetheless within the range of previous awards in similar circumstances - See paragraphs 25 to 33.

Cases Noticed:

Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.), refd to. [para. 6].

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. 6].

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

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 6].

Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 S.C.R. 943; 277 N.R. 1; 153 O.A.C. 341; 2001 SCC 58, refd to. [para. 8].

MacWilliams v. AMEC Americas Ltd. (2012), 388 N.B.R.(2d) 254; 1006 A.P.R. 254; 99 C.C.E.L.(3d) 171; 2012 NBCA 46, refd to. [para. 9].

Walsh et al. v. UPM-Kymmene Miramichi Inc. (2003), 257 N.B.R.(2d) 331; 674 A.P.R. 331; 2003 NBCA 32, refd to. [para. 9].

Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1; 168 D.L.R.(4th) 270 (C.A.), refd to. [para. 10].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1; 152 D.L.R.(4th) 1, refd to. [para. 12, footnote 1].

Hadley v. Baxendale (1854), 156 E.R. 145; 9 Exch. 341, refd to. [para. 26].

Trask v. Terra Nova Motors Ltd. (1995), 127 Nfld. & P.E.I.R. 310; 396 A.P.R. 310 (Nfld. C.A.), refd to. [para. 28].

Jivrag v. Calgary (City) and Calgary Parking Authority (1986), 71 A.R. 87; 45 Alta. L.R.(2d) 343 (Q.B.), refd to. [para. 28].

Langan v. Kootenay Region Métis Association et al., [2008] B.C.T.C. Uned. 791; 68 C.C.E.L.(3d) 142; 2008 BCSC 1169, refd to. [para. 29, footnote 5].

Fox v. Silver Sage Housing Corp. (2008), 319 Sask.R. 179; 70 C.C.E.L.(3d) 99; 2008 SKQB 321, refd to. [para. 29, footnote 5].

Desforge v. E-D Roofing Ltd., [2008] O.T.C. Uned. J40; 69 C.C.E.L.(3d) 115 (Sup. Ct.), refd to. [para. 29, footnote 5].

Francis v. Canadian Imperial Bank of Commerce (1994), 75 O.A.C. 216; 120 D.L.R.(4th) 393 (C.A.), refd to. [para. 29, footnote 5].

Slepenkova v. Ivanov (2007), 60 C.C.E.L.(3d) 303 (Ont. Sup. Ct.), affd. in part [2009] O.A.C. Uned. 355; 74 C.C.E.L.(3d) 163; 2009 ONCA 526, refd to. [para. 29, footnote 6].

Simmons et al. v. Webb et al., [2008] O.T.C. Uned. S24; 84 C.C.E.L.(3d) 196 (Sup. Ct.), refd to. [para. 29, footnote 6].

Chapell v. Canadian Pacific Railway Co., [2010] A.R. Uned. 531; 29 Alta. L.R.(5th) 380; 2010 ABQB 441, refd to. [para. 29, footnote 6].

Rahemtulla v. Vanfed Credit Union, [1984] 3 W.W.R. 296 (B.C.S.C.), refd to. [para. 29, footnote 6].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 29, footnote 6].

Jarvis v. Swans Tours Ltd., [1973] 1 All E.R. 71 (C.A.), refd to. [para. 29, footnote 6].

Hughes v. Gemini Food Corp. et al. (1992), 45 C.C.E.L. 113 (Ont. Gen. Div.), affd. (1997), 97 O.A.C. 147; 27 C.C.E.L.(2d) 204 (C.A.), refd to. [para. 32, footnote 7].

Pagliaroli v. Rite-Pak Produce Co. et al., [2010] O.T.C. Uned. 3729; 2010 ONSC 3729, refd to. [para. 32, footnote 7].

Pilato v. Hamilton Place Convention Centre Inc. (1984), 7 D.L.R.(4th) 342 (Ont. H.C.), refd to. [para. 32, footnote 7].

Thom v. Goodhost Foods Ltd. (1987), 17 C.C.E.L. 89 (Ont. H.C.), refd to. [para. 32, footnote 7].

Ribeiro v. Canadian Imperial Bank of Commerce (1992), 13 O.R.(3d) 278 (C.A.), refd to. [para. 32, footnote 7].

Desseroit et al. v. Delta Hotels Ltd., [1985] O.J. No. 1062 (H.C.), refd to. [para. 32, footnote 7].

Tremblay v. Goddard et al. (1996), 7 O.T.C. 76; 23 C.C.E.L.(2d) 315 (Gen. Div.), refd to. [para. 32, footnote 7].

Speck v. Greater Niagara General Hospital et al. (1983), 43 O.R.(2d) 611 (H.C.), affd. (1984), 51 O.R.(2d) 192 (C.A.), refd to. [para. 32, footnote 7].

Griffin v. Corcoran (1998), 175 N.S.R.(2d) 1; 534 A.P.R. 1 (S.C.), refd to. [para. 32, footnote 7].

Thomas v. Chaleur Auto Sales Ltd. (1988), 87 N.B.R.(2d) 312; 221 A.P.R. 312 (T.D.), refd to. [para. 32, footnote 7].

Benko v. Scott et al. (2007), 295 Sask.R. 202; 2007 SKQB 176, refd to. [para. 32, footnote 7].

Petwa Canada Ltd. v. Logan Stevens Construction (1981) Ltd., [1993] W.W.R. 729; 113 Sask.R. 32; 52 W.A.C. 32 (C.A.), refd to. [para. 35].

Potash Corp. of Saskatchewan Inc. et al. v. Crown Investment Corp. of Saskatchewan (2001), 211 Sask.R. 139; 2001 SKQB 418, refd to. [para. 36].

Utley v. Schmeichel (1997), 155 Sask.R. 108 (Q.B.), refd to. [para. 38].

A & L Plumbing & Heating Ltd. et al. v. Ridge Tool Co. (2008), 313 Sask.R. 19; 2008 SKQB 77, refd to. [para. 38].

Jefford v. Gee, [1970] 2 Q.B. 130 (C.A.), refd to. [para. 38].

Baud Corp., N.V. v. Brook (No. 2), [1979] 1 S.C.R. 677; 25 N.R. 451; 14 A.R. 407, refd to. [para. 38].

Rayani v. Yule & Co. (Hong Kong) Ltd., [1996] 3 W.W.R. 574; 178 A.R. 231; 110 W.A.C. 231 (C.A.), refd to. [para. 38].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 41].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 41].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321, refd to. [para. 41].

Downham v. Lennox and Addington (County), [2005] O.T.C. 1025; 56 C.C.E.L.(3d) 112 (Sup. Ct.), refd to. [para. 42].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, additional reasons [1992] 2 S.C.R. 318, refd to. [para. 44].

Statutes Noticed:

Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2, sect. 5(3) [para. 34].

Authors and Works Noticed:

Echlin, Randall Scott, and Thomlinson, Christine M., For Better or For Worse: A Practical Guide to Canadian Employment Law (2011), p. 254 [para. 25, footnote 3].

Fisher, Barry B., Measuring the Rule of Thumb in Wrongful Dismissal Cases, online: http://www.barryfisher.ca/papers/Rule_of_Thumb.pdf, generally [para. 22 footnote 2].

Fisher, Barry B., Revisiting Reasonable Notice Periods in Wrongful Dismissal Cases 2006 Edition (2006), online: http://www.barryfisher.ca/papers/ Revisiting_Reasonable_Notice.pdf, generally [para. 22, footnote 2].

Harris, David, Wrongful Dismissal (1989) (Looseleaf Ed.), vol. 2, pp. 4-18 [para. 22, footnote 2]; 4-18.1 [para. 18].

Levitt, Howard A., The Law of Dismissal in Canada (3rd Ed.) (2012 Looseleaf), vol. 2, generally [para. 12].

MacDonald, Natalie C., Extraordinary Damages in Canadian Employment Law (2010), generally [para. 25, footnote 3].

Mole, Ellen E., Wrongful Dismissal Practice Manual (2nd Ed.) (2006 Looseleaf), vol. 2, generally [para. 12].

Sproat, John R., Wrongful Dismissal Handbook (2009), p. 6-4.9 [para. 22, footnote 2].

Waddams, Stephen M., The Law of Damages (2nd Ed.) (Looseleaf Ed.), para. 7.980 [para. 43].

Counsel:

W. Timothy Stodalka and Eric Marcotte, for the appellant;

Mervin C. Phillips, for the respondent.

This appeal was heard on October 11, 2012, before Lane, Richards and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. In reasons written by Caldwell, J.A., the Court delivered the following judgment, dated July 22, 2013.