Waterman v. IBM Canada Ltd., (2011) 308 B.C.A.C. 304 (CA)

• Judge: Finch, C.J.B.C., Prowse and Levine, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 27, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 308 B.C.A.C. 304 (CA);2011 BCCA 337

Waterman v. IBM Can. Ltd. (2011), 308 B.C.A.C. 304 (CA);

    521 W.A.C. 304

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. AU.005

Richard Waterman (respondent/plaintiff) v. IBM Canada Limited (appellant/defendant)

(CA038053; 2011 BCCA 337)

Indexed As: Waterman v. IBM Canada Ltd.

British Columbia Court of Appeal

Finch, C.J.B.C., Prowse and Levine, JJ.A.

August 2, 2011.

Summary:

An employer dismissed an employee. The employee's fully paid up pension was triggered by the dismissal. The employee sued for wrongful dismissal. At issue included whether the pension benefits paid to the employee after his dismissal should be deducted from his award. The matter was determined by way of summary trial.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 376, awarded the employee damages totalling $93,305.32 based on a reasonable notice period of 20 months. The court refused to deduct the pension benefits, holding that he was bound by Girling v. Crown Cork & Seal Canada Inc. et al. (B.C.C.A.). The employer appealed.

The British Columbia Court of Appeal dismissed the appeal.

Master and Servant - Topic 8073

Dismissal without cause - Damages - Deduction for pension benefits - An employee's dismissal triggered his fully paid up pension - The trial judge awarded the employee damages for wrongful dismissal - The employer appealed, asserting that the judge erred in not deducting the pension benefits from the award - The British Columbia Court of Appeal concluded that the pension plan constituted part of one overall employment contract (i.e., the "one contract" approach) - Whether one contract or two contracts, the critical question was what conclusions could be drawn from the contract respecting the deductibility of paid pension benefits - There was no express provision governing the issue - While the contract would not normally permit the receipt of both salary and pension benefits for the same period, there was no express provision precluding that result - Had the parties turned their mind to the issue at the time of contracting, they would have viewed vested pension benefits as a right in the nature of property belonging to the employee and not deductible from any damages that he was awarded for loss of salary during the period of reasonable notice - The pension benefits were also properly characterized as a form of non-deductible, non-indemnity insurance - In either case, the benefits were not payments of salary or in lieu of salary - Having effectively compelled the employee to take the benefits, the employer could not now complain that the employee was entitled to retain those benefits together with the salary to which he was entitled for the breach of the contract - The employer could have avoided the result by providing reasonable notice.

Cases Noticed:

Girling v. Crown Cork & Seal Canada Inc. et al. (1995), 63 B.C.A.C. 176; 104 W.A.C. 176; 9 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 1].

MacGillivray v. Telus Communications Inc., [2004] B.C.T.C. 1394; 2004 BCSC 1394, refd to. [para. 1].

Sylvester v. British Columbia, [1997] 2 S.C.R. 315; 212 N.R. 51; 91 B.C.A.C. 124; 148 W.A.C. 124, dist. [para. 1].

Datardina v. Royal Trust Corp. of Canada (1995), 60 B.C.A.C. 109; 99 W.A.C. 109; 6 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 10].

Bohun v. Similco Mines Ltd. (1995), 60 B.C.A.C. 113; 99 W.A.C. 113; 6 B.C.L.R.(3d) 22 (C.A.), refd to. [para. 10].

Sylvester v. British Columbia (1995), 60 B.C.A.C. 97; 99 W.A.C. 97; 6 B.C.L.R.(3d) 7 (C.A.), refd to. [para. 10].

Parry v. Cleaver, [1970] A.C. 1 (H.L.), refd to. [para. 37].

Cunningham v. Wheeler - see Cooper v. Miller (No. 1).

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1, refd to. [para. 40].

Canadian Pacific Ltd. v. Gill Estate, [1973] S.C.R. 654, refd to. [para. 41].

Guy v. Trizec Equities Ltd., [1979] 2 S.C.R. 756; 27 N.R. 301; 32 N.S.R.(2d) 345; 54 A.P.R. 345, refd to. [para. 41].

Graham v. Baker (1961), 106 C.L.R. 340 (Aust. H.C.), refd to. [para. 43].

Chandler v. Ball Packaging Products Canada Ltd., [1992] O.J. No. 3114 (Gen. Div.), affd. [1993] O.J. No. 4362 (Div. Ct.), refd to. [para. 48].

Emery v. Royal Oak Mines Inc. (1995), 24 O.R.(3d) 302 (Gen. Div.), refd to. [para. 50].

Sheehan v. B.C. Hydro & Power Authority (1999), 14 B.C.T.C. 362; 72 B.C.L.R.(3d) 154 (S.C.), refd to. [para. 52].

Canadian Human Rights Commission v. Canada (Attorney General) et al. (2001), 215 F.T.R. 172; 2001 FCT 1399, dist. [para. 53].

Schmidt v. Air Products Canada Ltd. - see Stearns Catalytic Pension Plans, Re.

Stearns Catalytic Pension Plans, Re, [1994] 2 S.C.R. 611; 168 N.R. 81; 155 A.R. 81; 73 W.A.C. 81, dist. [para. 53].

Counsel:

D.G. Cowper, Q.C., L. Novakowski and M. Colavecchia, for the appellant;

C.J. Watson, for the respondent.

This appeal was heard at Vancouver, British Columbia, on April 27, 2011, by Finch, C.J.B.C., Prowse and Levine, JJ.A., of the British Columbia Court of Appeal. Prowse, J.A., delivered the following reasons for the Court of Appeal on August 2, 2011.