Davidson v. Tahtsa Timber Ltd., (2010) 296 B.C.A.C. 195 (CA)

• Judge: K. Smith, Kirkpatrick and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 01, 2010
• Jurisdiction: British Columbia
• Citations: (2010), 296 B.C.A.C. 195 (CA);2010 BCCA 528

Davidson v. Tahtsa Timber Ltd. (2010), 296 B.C.A.C. 195 (CA);

    503 W.A.C. 195

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. DE.009

Thomas Clifford Davidson (appellant/plaintiff) v. Tahtsa Timber Ltd. (respondent/defendant)

(CA035587; 2010 BCCA 528)

Indexed As: Davidson v. Tahtsa Timber Ltd.

British Columbia Court of Appeal

K. Smith, Kirkpatrick and D. Smith, JJ.A.

November 26, 2010.

Summary:

The plaintiff sued the defendant for damages for wrongful dismissal. The plaintiff also sought damages from Brienen for interference with his contract of employment and for slander.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. 938, dismissed the action. The court found that the plaintiff had been wrongfully dismissed and fixed the notice period at 10 months. However, the plaintiff had more than fully mitigated his notice period loss of earnings and therefore the trial judge dismissed the claim. The plaintiff appealed.

The British Columbia Court of Appeal allowed the appeal to the extent of awarding the plaintiff nominal damages of $100 and his costs against the defendant.

Editor's note: For a judgment dealing with procedural motions, see 279 B.C.A.C. 302; 473 W.A.C. 302.

Damages - Topic 1202

Nominal damages - For breach of contract - The plaintiff sued the defendant for damages for wrongful dismissal - The plaintiff also sought damages from Brienen for interference with his contract of employment and for slander - The trial judge dismissed the action - The trial judge found that the plaintiff had been wrongfully dismissed and fixed the notice period at 10 months - However, the plaintiff had more than fully mitigated his notice period loss of earnings and therefore the trial judge dismissed the claim - The plaintiff appealed, asserting that the trial judge erred in finding that notwithstanding the employer's proven wrongful act, the plaintiff's claim should be dismissed for failure to establish damages by reason of his successful mitigation - The plaintiff contended that having proved the wrongful breach of the employment contract, and the bona fide pursuit of a claim for substantial compensatory damages, he was at the least entitled to an award of nominal damages - The British Columbia Court of Appeal allowed the appeal to the extent of awarding the plaintiff nominal damages of $100 - The plaintiff proved his cause of action - The defendant failed to provide reasonable notice - The defendant argued that the appeal should be dismissed because the plaintiff suffered no loss - However, "loss" was not an element of the plaintiff's cause of action - If the plaintiff suffered loss as a result of the breach of contract, he was entitled to compensatory damages as a remedy - The trial judge, having found that the plaintiff suffered no loss, was correct to award no compensatory damages - However, the plaintiff was entitled to an award of nominal damages to recognize that his legal right not to be dismissed without notice had been wrongfully violated - See paragraphs 29 to 44.

Master and Servant - Topic 7704

Dismissal or discipline of employees - Damages for wrongful dismissal - Measure of damages for wrongful dismissal - [See Damages - Topic 1202 ].

Master and Servant - Topic 7704

Dismissal or discipline of employees - Damages for wrongful dismissal - Measure of damages for wrongful dismissal - The plaintiff sued the defendant for damages for wrongful dismissal - The plaintiff also sought damages from Brienen for interference with his contract of employment and for slander - The trial judge dismissed the action - The trial judge found that the plaintiff had been wrongfully dismissed and fixed the notice period at 10 months - However, the plaintiff had more than fully mitigated his notice period loss of earnings and therefore the trial judge dismissed the claim - The plaintiff appealed, asserting that the trial judge erred in determining the income that he could have earned in the notice period by reference to his two previous years of income - The plaintiff said that in the two previous years he worked only as a logging truck driver and not as a low-bed truck driver and thus the trial judge's award did not accurately reflect the type of work he would have done in the notice period - The British Columbia Court of Appeal rejected the appeal - There were several flaws with the plaintiff's assertion: (1) the plaintiff's method of analysing his loss was not argued at trial; (2) the trial judge did not state that he considered only the plaintiff's two previous years of income, he said he relied "to a great extent" on those figures; and (3) the plaintiff's argument ignored the trial judge's factual finding that the plaintiff could expect to work only nine months of the year, eight of which as a logging truck driver - Although the plaintiff might expect to work an additional month as a low-bed truck driver, he could not expect a higher annual income - The court was not persuaded that the trial judge erred in his determination of notice period income or in his finding that the plaintiff earned more in mitigation income than he would have earned had he continued in his employment with the defendant - See paragraphs 16 to 28.

Practice - Topic 7155

Costs - Party and party costs - Liability for party and party costs - Bullock order or Sanderson order - Where success divided - The plaintiff sued the defendant for damages for wrongful dismissal - The plaintiff also sought damages from Brienen for interference with his contract of employment and for slander - The trial judge dismissed the action - The trial judge found that the plaintiff had been wrongfully dismissed and fixed the notice period at 10 months - However, the plaintiff had more than fully mitigated his notice period loss of earnings and therefore the trial judge dismissed the claim - The plaintiff appealed, and if successful, sought a Sanderson order of costs requiring the defendant to pay the costs of Brienen awarded against the plaintiff - The British Columbia Court of Appeal allowed the plaintiff's appeal in part and rejected the plaintiff's request for a Sanderson order - The plaintiff satisfied the first part of the test - It was reasonable for the plaintiff to join both the defendant and Brienen in one action - In light of the plaintiff's conspiracy theory, apart from its merit, it likely made sense to have the two claims joined in one action - However, the plaintiff could not satisfy the test that the order for costs would be just and fair in the circumstances - There was no credible evidence to support the claim against Brienen - Further, there was no evidence accepted by the trial judge that the defendant did something that could be construed as implicating Brienen in the wrongful dismissal action - The plaintiff's conspiracy theory was that Brienen induced the defendant to dismiss him and was without foundation - The defendant should not be burdened with the costs related to the action against Brienen when it did nothing to warrant such an order - See paragraphs 45 to 57.

Cases Noticed:

Lawson v. Dominion Securities Corp. (1977), 2 A.C.W.S. 259 (Ont. C.A.), refd to. [para. 23].

Anglo-Cyprian Trade Agencies Ltd. v. Paphos Wine Industries Ltd., [1951] 1 All E.R. 873 (K.B.), refd to. [para. 35].

State Vacuum Stores of Canada Ltd. v. Phillips, [1954] 3 D.L.R. 621; 12 W.W.R.(N.S.) 489 (B.C.C.A.), refd to. [para. 43].

Beaumont v. Greathead (1846), 2 C.B. 494, refd to. [para. 44].

Robertson v. North Island College Technical and Vocational Institute (1980), 119 D.L.R.(3d) 17; 26 B.C.L.R. 225 (C.A.), refd to. [para. 49].

Grassi v. WIC Radio Ltd. et al. (2001), 153 B.C.A.C. 305; 251 W.A.C. 305; 2001 BCCA 376, refd to. [para. 53].

Authors and Works Noticed:

Fraser, George Peter, Horn, John W., and Griffin, Susan A., The Conduct of Civil Litigation in British Columbia (2nd Ed. 2007) (Looseleaf), para. 38.19 [para. 50].

Harris, David, Wrongful Dismissal (1989) (Looseleaf), p. 4-52.9 [para. 17].

Ogus, Anthony I., Law of Damages (1973), pp. 22 [para. 30]; 23 [para. 31]; 25 [paras. 32, 36].

Waddams, Stephen M., The Law of Damages (2009 Looseleaf Update), paras. 10.10 [para. 30]; 10.20 [para. 44].

Counsel:

I.B. Lawson and B. Barker, for the appellant;

W.W. Chapman, for the respondent.

This appeal was heard on November 1, 2010, at Vancouver, B.C., by K. Smith, Kirkpatrick and D. Smith, JJ.A., of the British Columbia Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered by Kirkpatrick, J.A., on November 26, 2010.