Mitchell v. Westburne Industrial Enterprises Ltd., (2000) 260 A.R. 38 (QB)

• Judge: Hutchinson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 18, 2000
• Citations: (2000), 260 A.R. 38 (QB)

Mitchell v. Westburne Ind. Ent. Ltd. (2000), 260 A.R. 38 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. MR.077

Edward Mitchell (plaintiff) v. Westburne Supply Alberta, a division of Westburne Industrial Enterprises Ltd. (defendant)

(Action No. 9701-05051)

Indexed As: Mitchell v. Westburne Industrial Enterprises Ltd.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hutchinson, J.

March 2, 2000.

Summary:

Mitchell sued his former employer for damages for wrongful dismissal.

The Alberta Court of Queen's Bench held that Mitchell was wrongfully dismissed and awarded damages accordingly.

Damages - Topic 911

Aggravation - In contract - Aggravated damages - Wrongful dismissal - [See Mas­ter and Servant - Topic 8000 ].

Master and Servant - Topic 8000

Dismissal without cause - Notice of dis­missal - What constitutes reasonable notice - Mitchell, who was 57 years old, sued his former employer for wrongful dismissal - Mitchell worked for his former employer for 28 years and 9 months - He was initially hired as a purchasing agent and progressed to the position of purchasing manager - The Alberta Court of Queen's Bench held that Mitchell was wrongfully dismissed and that 24 months was a rea­sonable notice period - The court added three months in recognition of the intang­ible injuries caused by the former employ­er's bad faith conduct or unfair treatment of Mitchell, which undoubtedly reflected upon his integrity and reliability as an employee in a rather limited and special­ized job market - See paragraphs 1 to 37.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dis­missal - Reasonable notice - Considerations affecting (incl. bad faith) - [See Master and Servant - Topic 8000 ].

Master and Servant - Topic 8064

Dismissal without cause - Damages - Mitigation - Mitchell, who was 57 years old, sued his former employer for wrongful dismissal - He was employed for almost 29 years - He was a purchasing manager - Mitchell unsuccessfully made 111 contacts with potential employers or placement agencies - Mitchell read employment ads in the newspaper each morning, responding by fax to the applicable advertisements - The former employer's human resource expert rated Mitchell's job searching as informal and not really serious - The Alberta Court of Queen's Bench held that the former employer failed to prove that Mitchell did not mitigate his damages - If the former employer had provided Mitchell with professional services in job searching immediately following the dismissal and refrained from imputing Mitchell's ability to adjust to change in its announcement, which was distributed to suppliers, then Mitchell's job prospects would likely have been much brighter - See paragraphs 44 to 54.

Cases Noticed:

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, refd to. [para. 29].

Burry v. Unitel Communications Inc. (1997), 101 B.C.A.C. 10; 164 W.A.C. 10 (C.A.), refd to. [para. 29].

Gaunt v. Consolidated Freightways Corp. of Delaware (1990), 68 Man.R.(2d) 149 (Q.B.), refd to. [para. 29].

Ellison v. Burnaby Hospital Society (1992), 92 C.L.L.C. 14,042 (B.C.S.C.), refd to. [para. 29].

Storey v. Blackwood Hodge (Canada) Ltd., [1996] T.L.W. 1612-029; 8 O.T.C. 357 (Gen. Div.), refd to. [para. 29].

Antonacci v. Great Atlantic and Pacific Co. of Canada (1998), 53 O.T.C. 291; 35 C.C.E.L.(2d) 1 (Gen. Div.), refd to. [para. 29].

Burns v. Oxford Development Group Inc. (1992), 128 A.R. 345 (Q.B.), refd to. [para. 40].

Rosscup v. Westfair Foods Ltd. (1999), 248 A.R. 275; 73 Alta. L.R.(3d) 208 (Q.B.), refd to. [para. 42].

Dixon v. Sears Canada Inc. (1995), 10 C.C.E.L.(2d) 119 (B.C.S.C.), refd to. [para. 46].

Lau v. Geo-X Systems Ltd. (1998), 238 A.R. 276 (Q.B.), refd to. [para. 47].

Michaels et al. v. Red Deer College, [1976] 2 S.C.R. 324; 5 N.R. 99, refd to. [para. 49].

Payzu Ltd. v. Saunders, [1919] 2 K.B. 581 (C.A.), refd to. [para. 49].

Forshaw v. Aluminex Extrusions Ltd. (1989), 39 B.C.L.R.(2d) 140 (C.A.), refd to. [para. 53].

Authors and Works Noticed:

Cheshire and Fifoot, Law of Contract (8th Ed. 1972), p. 599 [para. 51].

Mole, Ellen E., Wrongful Dismissal Prac­tice Manual, generally [para. 29].

Williston on Contracts (3rd Ed. 1968), vol. 11, p. 312 [para. 50].

Counsel:

W.D. McFetridge, for the plaintiff;

M.D.A. Ford, for the defendant.

This action was heard on February 18, 2000, by Hutchinson, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following deci­sion on March 2, 2000.