Evans v. Teamsters Local Union No. 31, (2006) 231 B.C.A.C. 19 (YukCA)

• Judge: Saunders, Smith and Thackray, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: May 31, 2006
• Jurisdiction: Yukon
• Citations: (2006), 231 B.C.A.C. 19 (YukCA);2006 YKCA 14

Evans v. Teamsters Union (2006), 231 B.C.A.C. 19 (YukCA);

    381 W.A.C. 19

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. SE.041

Donald Norman Evans (respondent/plaintiff) v. Teamsters Local Union No. 31 (appellant/defendant)

(CA05-YU550; 2006 YKCA 14)

Indexed As: Evans v. Teamsters Local Union No. 31

Yukon Court of Appeal

Saunders, Smith and Thackray, JJ.A.

September 25, 2006.

Summary:

The plaintiff was employed for over 23 years as a business agent for a union. He was dismissed when a new union executive took office. He sued the union for damages for wrongful dismissal.

The Yukon Territory Supreme Court, in a decision reported [2005] Yukon Cases (S.C.) 71, allowed the action, holding that the plaintiff was entitled to damages calculated on the basis of a notice period of 22 months. The union appealed, the only issue being whether the plaintiff's damage award should be reduced or eliminated because of his failure to mitigate his damages by accepting a new offer of employment from the union.

The Yukon Court of Appeal allowed the appeal and set aside the award in its entirety.

Damages - Topic 6753

Contracts - Employment relationship or contract - Breach by employer - Mitigation by employee - [See Master and Servant - Topic 8064 ].

Master and Servant - Topic 8064

Dismissal without cause - Damages - Mitigation - The plaintiff was employed for over 23 years as a business agent for a union - He was dismissed when a new union executive took office - He sued the union for damages for wrongful dismissal - The trial judge allowed the action holding that the plaintiff was entitled to damages calculated on the basis of a notice period of 22 months - The union appealed, the only issue being whether the plaintiff's damage award should be reduced or eliminated because of his failure to mitigate his damages by accepting a new offer of the same employment from the union for a 24 month period - The Yukon Court of Appeal allowed the appeal and set aside the award in its entirety where the trial judge erred in law in applying a purely subjective test as to the mitigation issue - The court stated further, that even if there was objectivity and no error of law, the evidence did not support the conclusion that the plaintiff's circumstances viewed objectively, justified his refusal to resume employment with the union - The plaintiff failed to act reasonably with respect to the job offer made to him by the union - He should have returned to employment for the union shortly after his termination.

Cases Noticed:

Housen v. Nickolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577; [2002] 7 W.W.R. 1; 2002 SCC 33, refd to. [para. 38].

Cox v. Robertson (1999), 131 B.C.A.C. 257; 214 W.A.C. 257; 69 B.C.L.R.(3d) 65; 181 D.L.R.(4th) 214; 1999 BCCA 640, refd to. [para. 47].

Farquhar v. Butler Brothers Supplies Ltd., [1988] 3 W.W.R. 347; 23 B.C.L.R.(2d) 89 (C.A.), refd to. [para. 47].

Mifsud v. MacMillan Bathurst Inc. (1989), 35 O.A.C. 356; 70 O.R.(2d) 701; 63 D.L.R.(4th) 714 (C.A.), leave to appeal refused (1990), 113 N.R. 400; 39 O.A.C. 153; 68 D.L.R.(4th) vii, refd to. [para. 48].

Smith v. Aker Kvaerner Canada Inc. et al., [2005] B.C.T.C. 117; 2005 BCSC 117, refd to. [para. 53].

Carlysle-Smith v. Dennison Dodge Chrysler Ltd. et al., [1997] B.C.T.C. Uned. J47; 33 C.C.E.L.(2d) 280 (S.C.), refd to. [para. 58].

Counsel:

L.B. McGrady, Q.C., for the appellant;

G. Macdonald, Q.C., for the respondent.

This appeal was heard in Whitehorse, Yukon Territory, on May 31, 2006, before Saunders, Smith and Thackray, JJ.A., of the Yukon Court of Appeal. Thackray, J.A., delivered the following decision, for the court, in Vancouver, British Columbia on September 25, 2006.