Elgert v. Home Hardware Stores Ltd. et al., 2010 ABQB 62

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 13, 2010
• Citations: 2010 ABQB 62;(2010), 486 A.R. 179 (QB)

Elgert v. Home Hardware Stores Ltd. (2010), 486 A.R. 179 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. FE.020

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

(0203-12593; 2010 ABQB 62)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

January 19, 2010.

Summary:

The defendant employer summarily dismissed the plaintiff for his alleged inappropriate sexual touching of two female employees. The plaintiff sued the employer and the two employees (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 held that the trial judge could instruct the jury on the factors to be considered in assessing damages and the appropriate range.

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.

Practice - Topic 5197

Juries and jury trials - Charge to jury - Respecting assessment of damages - The plaintiff sued the defendants for wrongful dismissal and defamation - Contrary to the current law in Alberta, the defendants argued that the trial judge should instruct the jury on the range of appropriate damages - The plaintiff had claimed damages in lieu of reasonable notice, pecuniary damages for losses during the notice period, aggravated and punitive damages and non-pecuniary general damages - The Alberta Court of Queen's Bench, on the basis that a change in the law was pending, adopted the reasoning of courts in other jurisdictions to find that a trial judge could instruct a jury on a range of non-pecuniary damages - The court stated that "it would be in the interests of fairness, consistency and rationality to adopt a procedure ... whereby the trial judge may provide guidance to the jury on the appropriate range of damages. In particular, the jury in this case would benefit from some meaningful guidance on a reasonable range of general, aggravated and punitive damages for defamation Complex legal concepts such as foreseeability, aggravation, and mitigation will need to be considered. Without the benefit of guidance from the trial judge, it will be a challenge for the jury to weigh all of the appropriate factors and arrive at an award that is tenable in law. If no range is provided to the jury and their award is excessive, an appeal will be necessary to reduce the award to an appropriate amount. ... I conclude that if no agreement can be reached between counsel on an appropriate range of reasonable notice, counsel should be permitted to make submissions on a range or suggest a specific notice period to the jury. The trial judge must then explain what factors are to be considered in coming up with a reasonable award. The trial judge is not precluded from providing examples or a range of reasonable notice to the jury, and indeed should do so in this case as it would assist the jury in arriving at an appropriate award".

Cases Noticed:

George Estate v. Harris et al., [2001] O.T.C. 637 (Sup. Ct.), refd to. [para. 8].

Force v. Gibbons (1978), 93 D.L.R.(3d) 626 (B.C.S.C.), refd to. [para. 10].

Brisson v. Brisson (2002), 168 B.C.A.C. 255; 275 W.A.C. 255; 213 D.L.R.(4th) 428 (C.A.), not folld. [para. 10].

Rieger et al. v. Burgess et al., [1988] 4 W.W.R. 577; 66 Sask.R. 1 (C.A.), refd to. [para. 11].

Quintal v. Datta and Skochylas, [1988] 6 W.W.R. 481; 68 Sask.R. 104 (C.A.), leave to appeal denied [1989] 3 W.W.R. xxi; 100 N.R. 239; 76 Sask.R. 80 (S.C.C.), refd to. [para. 11].

Howes et al. v. Crosby et al. (1984), 2 O.A.C. 375 (C.A.), refd to. [para. 12].

Pendergras and Presley v. McGrath and Tilden Rent A Car Co. (1988), 86 A.R. 291; 1988 CarswellAlta 114 (C.A.), refd to. [para. 13].

Nguyen v. Collette (2002), 323 A.R. 284; 2002 CarswellAlta 1154 (Q.B.), refd to. [para. 14].

Ginter et al. v. Sidhu et al. (2003), 333 A.R. 246 (Q.B.), refd to. [para. 15].

Hollebeke v. Breeze et al. (2003), 345 A.R. 363; 2003 CarswellAlta 398 (Q.B.), not folld. [para. 16].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201, refd to. [para. 20].

Gagnon v. Frey et al., [2005] A.R. Uned. 35; 2005 ABCA 106, refd to. [para. 24].

Paesch v. Teskey, [2005] A.R. Uned. 95; 2005 ABCA 209, refd to. [para. 25].

Foreman v. Foster (2001), 147 B.C.A.C. 254; 241 W.A.C. 254; 84 B.C.L.R.(3d) 184 (C.A.), refd to. [para. 27].

Ede v. Junek and Hart (1990), 87 Sask.R. 126 (C.A.), agreed with [para. 28].

McKinley v. BC Tel et al., [2001] 2 S.C.R. 161; 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161, refd to. [para. 31].

Stewart et al. v. Knoll North America Corp. (2007), 234 B.C.A.C. 240; 387 W.A.C. 240; 63 B.C.L.R.(4th) 308 (C.A.), refd to. [para. 34].

Marshall v. Watson Wyatt & Co. (2002), 155 O.A.C. 103; 209 D.L.R.(4th) 411 (C.A.), refd to. [para. 36].

Killorn v. Healthvision Corp. (1997), 156 N.S.R.(2d) 1; 461 A.P.R. 1; 143 D.L.R.(4th) 477 (C.A.), refd to. [para. 37].

Authors and Works Noticed:

Ball, Stacey Reginald, Canadian Employment Law (Looseleaf), vol. 2, generally [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 13, 2010, before Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 19, 2010.