Elgert v. Home Hardware Stores Ltd. et al., (2010) 486 A.R. 213 (QB)

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 27, 2010
• Citations: (2010), 486 A.R. 213 (QB);2010 ABQB 71

Elgert v. Home Hardware Stores Ltd. (2010), 486 A.R. 213 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. FE.092

Daniel Elgert (plaintiff) v. Home Hardware Stores Limited, C.B. and D.S. (defendants)

(0203-12593; 2010 ABQB 71)

Indexed As: Elgert v. Home Hardware Stores Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

January 29, 2010.

Summary:

The defendant employer summarily dismissed the plaintiff for his alleged inappropriate sexual touching of two female co-workers. The plaintiff sued the employer and co-workers (C.B. and D.S.) for damages for wrongful dismissal and defamation. The defendants submitted that the trial judge's jury charge should provide the jury with a range of appropriate damages for defamation and wrongful dismissal. The plaintiff claimed pay in lieu of reasonable notice, plus pecuniary damages for losses during the notice period. He also claimed aggravated damages, punitive damages and non-pecuniary general damages for defamation.

The Alberta Court of Queen's Bench, in a judgment reported 486 A.R. 179, held that it would instruct the jury on the factors to be considered in assessing damages and the appropriate range for all non-pecuniary damages and the period of reasonable notice.

The Alberta Court of Queen's Bench determined the range of aggravated and punitive damages and the period of reasonable notice.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Damage Awards - Topic 632

Torts - Injury to the person - Libel and slander - The 50 year old plaintiff was summarily dismissed in May 2002 for alleged sexual misconduct respecting two female co-workers (D.S. and C.B.) - The plaintiff sued for damages for wrongful dismissal and defamation - The matter was being tried by a jury and the trial judge previously decided that he would instruct the jury on the appropriate range of damages for defamation - The Alberta Court of Queen's Bench held that if the jury found that the co-workers made false allegations of sexual misconduct, and thereby defamed the plaintiff, "the range of $5,000 to $60,000 will be a global range of total damages against either D.S. or C.B., or both of them" - See paragraphs 30 to 38.

Damage Awards - Topic 2014

Exemplary or punitive damages - Wrongful dismissal - The 50 year old plaintiff was summarily dismissed in May 2002 for alleged sexual misconduct respecting two female co-workers - The plaintiff sued for damages for wrongful dismissal and defamation - The matter was being tried by a jury and the trial judge previously decided that he would instruct the jury on the appropriate range of punitive damages - The Alberta Court of Queen's Bench held that if the jury found "harsh, vindictive, reprehensible and malicious" conduct that merited condemnation and punishment by way of punitive damages, the appropriate range was "zero to $400,000" - See paragraphs 25 to 29.

Damage Awards - Topic 2411

Aggravated damages - Wrongful dismissal - The 50 year old plaintiff was summarily dismissed in May 2002 for alleged sexual misconduct respecting two female co-workers - The plaintiff sued for damages for wrongful dismissal and defamation - The matter was being tried by a jury and the trial judge previously decided that he would instruct the jury on the appropriate range of aggravated damages (Wallace damages) for bad faith conduct - The Alberta Court of Queen's Bench determined that the jury would be instructed that should they find the plaintiff entitled to aggravated damages, the appropriate range of damages was "between zero dollars and $200,000" - See paragraphs 15 to 24.

Master and Servant - Topic 7712

Dismissal of employees - Damages for wrongful dismissal - Punitive or vindictive damages - [See Damage Awards - Topic 2014 ].

Master and Servant - Topic 7713

Dismissal of employees - Damages for wrongful dismissal - Aggravated damages - [See Damage Awards - Topic 2411 ].

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - The 50 year old plaintiff was summarily dismissed in May 2002 for alleged sexual misconduct respecting two female co-workers - The plaintiff sued for damages for wrongful dismissal and defamation - The matter was being tried by a jury and the trial judge previously decided that he would instruct the jury on the appropriate range of the period of reasonable notice - The plaintiff worked for the employer for 16 years - When fired, he was in a management position - The Alberta Court of Queen's Bench held that "as a long term employee in a senior position, the upper end of the notice period range will be higher than the typical one month for each year worked. ... generally older employees will require the upper end of a longer notice period." - However, the availability of other jobs in a buoyant Alberta economy in 2002, as well as the plaintiff's good health and marketable skills, tended to lower the notice period - The court determined that it would instruct the jury that if the plaintiff was wrongfully dismissed, the period of reasonable notice would fall in the 12 to 24 month range - See paragraphs 11 to 14.

Cases Noticed:

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. 3].

Keays v. Honda Canada Inc. (2008), 376 N.R. 196; 239 O.A.C. 299; 294 D.L.R.(4th) 577; 2008 SCC 39, refd to. [para. 4].

Pawlett v. Dominion Protection Services Ltd. et al. (2008), 440 A.R. 241; 438 W.A.C. 241; 2008 ABCA 369, refd to. [para. 4].

Magnan v. Brandt Tractor Ltd. (2008), 440 A.R. 35; 438 W.A.C. 35; 2008 ABCA 345, refd to. [para. 4].

Clark v. BMO Nesbitt Burns Inc. (2008), 243 O.A.C. 235; 2008 ONCA 663, refd to. [para. 4].

Brien v. Niagara Motors Ltd., [2009] O.A.C. Uned. 639; 2009 ONCA 887, refd to. [para. 4].

Anstead v. Park Royal Homes Inc. (2009), 470 A.R. 124; 2009 ABQB 179, refd to. [para. 4].

Albert v. Conseil scolaire francophone de la Colombie-Britannique (2009), 265 B.C.A.C. 130; 446 W.A.C. 130; 2009 BCCA 19, refd to. [para. 4].

Ritchie v. 830234 Ontario Inc., [2009] O.T.C. Uned. G68; 2009 CarswellOnt 3925 (Sup. Ct.), refd to. [para. 4].

Schurman v. Covered Bridge Recreation Inc. (2009), 340 N.B.R.(2d) 168; 871 A.P.R. 168; 2009 NBCA 1, refd to. [para. 4].

Stastny v. Dependable Turbines Ltd., [2009] B.C.T.C. Uned. 1648; 2009 BCSC 1648, refd to. [para. 4].

Hill v. Church of Scientology of Toronto and Manning (1995), 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129; 1995 CarswellOnt 534 (S.C.C.), refd to. [para. 6].

Wilde et al. v. Archean Energy Ltd. et al., [2005] A.R. Uned. 667; 2005 CarswellAlta 1152 (Q.B.), revd. (2007), 422 A.R. 41; 415 W.A.C. 41; 2007 CarswellAlta 663 (C.A.), refd to. [para. 7].

Counsel:

Dawn Pentelechuk, Q.C. (Cleall LLP), for the plaintiff;

David D. Risling and Stephanie Matchett (McLennan Ross LLP), for the defendants.

This matter was heard on January 27, 2010, before Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 29, 2010.