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A. Issues [1] In addition to damages for one year's notice period, can a trial judge...

A. Issues [1] In addition to damages for one years notice period, can a trial judge award significant damages for the mere f[12] However, it is implied in the contract that the party terminating the contract without cause will give notice of reasonahere (para. 19he respondent interpo [20] The trial Reasons expressly found that mental suffering was not the ground for the i[24] What if courts imposed heavy and almost automatic penalties on any defendant who alleged cause in good faith, but then f32] Therefore, when such an employee is dismissed, it is probable that some of the employees future earning potential will d[40] But it is no such thing, and never has been. Hadley v. Baxendale is a limit on damages, not even a floor for calculating[49] First, the respondent plaintiff alleges that the appellant deliberately delayed and then structured the dismissal, all i[58] Tenth, the respondent was licensed only as a representative employee (salesman and adviser), and not as a broker. It wasFind the courts decision in Merrill Lynch Canada Inc. v. Soost, 2010 ABCA 251. It will be helpful to read the case in its en

A. Issues [1] In addition to damages for one year's notice period, can a trial judge award significant damages for the mere fact of an employee's dismissal, or for the stigma that that dismissal brings? Or for the employer thereafter competing with the ex-employee for the clients, before the ex-employee has got a new job? B. Basic Facts [2] This is an appeal from 2009 ABQB 591 (CanLII), 473 A.R. 254. [3] Usually a judgment recites facts before law. But some of the facts here have no visible significance until one knows what law and issues were argued in this case. So I will give only general facts at the beginning, and defer detail about loss of customers to Part G.2 when discussing that topic. [4] The respondent was a very high-performing investment adviser employed by the appellant, a national brokerage and investment firm. After not quite three years' employment, he was dismissed without notice. (He had more seniority than that because of a merger of employers.) The appellant employer believed that it had about half a dozen grounds (cause) to dismiss. The trial Reasons later found that most of them existed, but that they were not bad enough to justify dismissal. [5] It took the respondent about three weeks to find a new job, and that was with a lesser employer. Many of his former very desirable retinue of clients did not follow him. In this results-based industry, his income dropped drastically. [6] The trial Reasons awarded a year's pay in lieu of notice, $600,000. No one appeals that. Instead, the employer's appeal centres on a second award of an extra $1.6 million in damages, being the amount which the Reasons gave the respondent. The Reasons said that was for what they called damage to his reputation and book of business or goodwill, which would not be compensated for by an award of damages in lieu of notice. c. Employers' Right to Dismiss Like the factums, I will start with first principles. The contract of employment here was the most common kind: a hiring for an indefinite period. [9] Under such contracts, the common terminology is sloppy, even misleading. We speak of "wrongful dismissal", or damages for that. But there is no such thing there as wrongful dismissal (apart from federal legislation). Under such a contract, either side may validly end the contract at any time. The employee neither has tenure, nor is indentured. The employee and the employer both have the right to end the contract, and ending it is not a breach of contract, nor a tort: Wallace v. Utd. Grain Growers 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701, 735, 219 N.R. 161, 152 D.L.R. (4th) 1, 27-28 (paras. 75-76); Desforge v. E-D Roofing (#1) (2008) 2008 CanLII 48130 (ON SC), 69 C.C.E.L. (3d) 115 (Ont.) (para. 80); Marchen v. Dams Ford Lincoln Sales, 2010 BCCA 29 (CanLII), 282 B.C.A.C. 120, 315 D.L.R. (4th) 728 (para. 38). There is no right to be allowed to resign instead of being dismissed. [10] And we speak of "reasonable notice". But all that need be reasonable is the length of the notice. The dismissal (or resignation) need not be reasonable; it may be whimsical, or inexplicable: Wallace v. U.G.G., supra. Backt [11] No cause whatever is needed for the employee to resign or for the employer to dismiss, and such resignation or dismissal cannot be legally upset (unless a collective agreement or certain federal legislation applies).
[12] However, it is implied in the contract that the party terminating the contract without cause will give notice of reasonable length. All that need be reasonable is the amount of time which it affords. So an employer wishing to dismiss an employee without cause must either give long enough advance notice, or pay salary corresponding to that period of time: cf. Farber v. Royal Tr. Co. 1997 CanLII 387 (SCC), [1997] 1 S.C.R. 846, 858, 210 N.R. 161, 145 D.L.R. (4th) 1, at p. 8 (para. 23). [13] I emphasize the word "or". No employee has a right to work after dismissal. Every employee can be dismissed at once with no notice and without any grounds. That will not be a breach of the employment contract, provided that the employer gives pay in lieu of notice. [14] Why do we ever discuss just cause for dismissal? The only reason is that just cause obviates the need for notice or pay in lieu. See for example Dowling v. Workplace Safety & Ins. Bd. (2004) 2004 CanLII 43692 (ON CA), 192 0.A.C. 126, 246 D.L.R. (4th) 65 (C.A.); Poliquin v. Devon Can. Corp., 2009 ABCA 216 (CanLII), 454 A.R. 61. However, cause or lack of it is irrelevant to the effectiveness and the finality of resignation or dismissal. And cause is irrelevant to whether the employee gets working notice instead of pay in lieu of notice. [15]. Therefore, in ordinary circumstances, damages because of dismissal with neither reasonable notice nor pay in lieu cannot exceed what pay in lieu would have been. Cf. Jean v. Pêcheries Roger L., 2010 NBCA 10 (CanLII), 354 N.B.R. (20) 300 (para. 55). Indeed the damages will be less, if the dismissed ex-employee mitigated his or her loss (or should have) by getting a new job. There is but one exception to that rule, which the Supreme Court of Canada has now clarified in Keays v. Honda Can., 2008 SCC 39 (CanLII), [2008] 2 S.C.R. 362, 376 N.R. 196. D. Honda Damages 1. What Are They? [16] The Honda case says that when dismissing an employee, an employer has a duty not to use methods which are unduly unfair or insensitive (paras. 57-60). I stress that the unfairness or insensitivity must be in the methods used, not in the mere fact of dismissal. One thinks of examples; one is a boss who tells all the fellow employees, or the employee's spouse and children, that the dismissed employee is stupid or incompetent. It is hard to think of circumstances where there would be any need to do that. Another example might be dismissing the employee within a day or two of a daughter's wedding, or of the death of a parent. Another example would be insincerely alleging to others embarrassing or demeaning (but unfounded) reasons for the dismissal (whether or not they would be just cause if true), when the employer does not honestly believe those grounds exist. 117] Mere sloppy conduct by the employer does not suffice for such extra damages; it takes something akin to intent, malice, or blatant disregard for the employee: Gismondi v. Toronto (City) (2003) 2003 CanLII 52143 (ON CA), 64 O.R. (3d) 688, 226 D.L.R. (4th) 334 (para. 32) (C.A.); Desforge v. E-D, supra (para. 82); McNevan v. AmeriCredit Corp., 2008 ONCA 846 (CanLII), 94 O.R. (3d) 458 (paras. 58-59). [18] So these Honda damages are not an automatic enhancement of all "wrongful dismissal” damages. They are not like sales tax or overhead charges. If Honda damages were triggered by the mere fact of dismissal, or it were very difficult to dismiss anyone without triggering them, then they would be an automatic surcharge. The Supreme Court of Canada shows in Honda that that is not the law: Honda at paras. 50, 57; and see Wallace v. U.G.G., supra (para. 103). [19] Honda damages are limited to compensating loss, and are not punitive: Honda (at para. 60). Bac 2. Cause and Good Faith
here (para. 19he respondent interpo [20] The trial Reasons expressly found that mental suffering was not the ground for the impugned second head of damages here (para. 191). I am not certain what the trial Reasons' precise grounds for that ($1.6 million) head of damages were, as those grounds are less exact than other parts of the Reasons. The respondent interprets them in various places, including pp. 23 and 24 of his factum) as two overlapping grounds. The respondent expresses his first interpretation of the grounds for this head of damages in two different ways. Either (a) the appellant employer alleged that it had had cause when it dismissed the respondent employee, or (b) "stigma": the appellant employer telling the clients that the respondent was gone, but not why (see reasons paras. 113, 119, 122, 123), thereby impugning his reputation (respondent's paras. 43, 48, 51, 69). I discuss this first reason in this part D, and in Part F. The second interpretation (ground) advanced by the respondent is unfair competition for clients (see the Reasons, paras. 134-75), which I discuss in Part G below. 1211 It is notorious that what is just cause to dismiss in a given case is often very difficult to say. It is hard to predict trial results. Many trial decisions on "wrongful dismissal" (like this one) find the employee guilty of misconduct or poor performance. However, most of those also find that it was not quite bad enough for summary dismissal; or that more warnings or constructive suggestions should have been given; or that there was some sort of apparent condonation. (Whether such near cause can reduce damages directly or indirectly was not argued on this appeal.) In few cases can any solicitor advise an employer that it has ironclad grounds for dismissing a certain employee without notice. [22] Here, after much consideration, the Reasons found (a) breach of the employer's rules, (b) but that it was not bad enough to dismiss, excuses for lack of enforcement of the rules, (d) partial abruptness or prematurity (paras. 56, 65, 70, 82, 94, 97, 103, 112-16), and (e) the employer had good faith belief in cause to dismiss (paras. 162, 204). That good faith belief was well founded. For example, the respondent violated express rules found in the employment contract and the appellant's written policy (Extracts, pp. A6-A7, and A10-A12). [23] Honest belief, especially with arguable grounds, bars Honda damages for alleging cause: Honda at paras. 37-38, 45; Desforge v. E-D Roofing, supra (paras. 82, 84 92); Mulvihill v. Ottawa, 2008 ONCA 201 (CanLII), 90 O.R. (3d) 285 (paras. 49-51). Back
[24] What if courts imposed heavy and almost automatic penalties on any defendant who alleged cause in good faith, but then failed to convince a judge or jury that it was bad enough? That would be most unfair to employers. It would deter alleging cause, so that employers with cause would instead have to give pay in lieu of notice (to avoid a second set of damages). This would be the slacker's charter. It would significantly increase the expenses of hiring staff, and hence increase prices charged to innocent customers. I wish to stress that policy consideration. [25] The respondent's counsel argue here that the second head of damages was proper because it compensated the stigma of dismissal. But, as noted, dismissal is never breach of contract in an indefinite hiring. Only want of reasonable notice may be (if there is no cause); and that is a separate head of damages which was awarded here, paid, and no longer disputed. A dismissed employee gets no damages for any prejudicial effect (even on reputation) of the dismissal itself. See Honda, paras. 50, 57, citing with approval Peso Silver Mines v. Cropper 1966 CanLII 75 (SCC), [1966] S.C.R. 673, 684, 56 W.W.R. 641. The latter decision is exactly on point here. The Honda case says that a second head of damages is confined to a bad manner of dismissal, not for dismissal itself: see paras. 48, 50, 56. [26] The respondent does not allege that the appellant told lies about him, nor otherwise improperly made the respondent look like a dishonest or unsavoury person. Indeed, the Reasons find that no such conduct occurred: para. 133. The evidence supports that fact finding. (On "stigma", one may note an analogy in the costs decision in Man. Keewatinowi Okimakanak v. McIvor, 2007 MBCA 134 (CanLII), [2007] 12 W.W.R. 63, 220 Man. R. (20) 240 (paras. 12-15).) E. What is Compensation For? [27] One consideration which motivated the trial Reasons here was their conclusion that the respondent ex-employee would be grossly undercompensated by getting only $600,000 damages representing estimated earnings for one year (i.e. for lack of a year's notice) (Reasons paras. 192, 197). The trial Reasons said that in the wake of the dismissal, the respondent lost most of his customers to the appellant and other brokerages (investment firms). [28] If one assumes that the proper legal question is damages for loss of a job, under- compensation sounds plausible. But that is not the proper legal question. As noted, an employee with the usual contract of indefinite hiring has no right to keep the job, only a right to reasonable notice or pay in lieu (absent cause to dismiss). It is arguable that some significant part of the respondent's loss of customers came from his dismissal (a point discussed in more detail below in Part G). But the dismissal itself was not a wrong (even without cause), and there can be no compensation for it. See Desforge v. E-D, supra (para. 95). Economic loss from being dismissed does not fall within Honda damages: Mathieson v. Scotia Cap. [2010] CLLC 10-002, 2009 CanLII 64183 (ON SC), 78 C.C.E.L. (3d) 76 (Ont.) (paras. 82-83). [29] The wrong was lack of reasonable notice. Damages must be for lack of reasonable notice (which was compensated here and not appealed): Jean v. Pêcheries Roger L., supra (at para. 55). Or for unduly unfair or insensitive manner of dismissal. [30] It is common for dismissed employees to suffer losses going well beyond lack of reasonable notice (or pay in lieu). Various factors may prevent ever getting other comparable employment: a bad economy; a small, shrinking, or obsolescent occupation, industry or set of skills; or age of the employee. Or the employment itself may produce prestige, business contacts, or opportunities, from non-parties, which will not survive a layoff or dismissal, no matter how honorable the circumstances or how positive the letter of reference. For example, a full professor at a prestigious university, or a famous television news commentator, or a member of a famous sports team, might get research grants or consulting or speaking opportunities or endorsements, worth much more than his or her salary - but only so long as he or she keeps the job. [31] Many employees' rates of pay depend heavily on how many sales they make. Some are paid on a commission basis; others' salaries are adjusted regularly and basedacht largely on sales. When a salesperson or similar employee changes jobs, even voluntarily, not all customers follow. Some customers will always stay behind (or go elsewhere). That is inherent in any change, even a mere change of business address. Goodwill is partly simple customer inertia. (On this industry, see paras. 137, 170, and 192 of the Reasons.)
32] Therefore, when such an employee is dismissed, it is probable that some of the employee's future earning potential will disappear. That disappearance may be temporary, or permanent. Either way, for quite some time after the notice period, the salary from the new employer is likely to be smaller. If that continues beyond the notice period, that discrepancy is not compensated. Counsel for the respondent frankly admitted that the few somewhat similar reported cases which they had found are not really helpful precedent. [33] The respondent makes this extra damage award sound more plausible by treating the loss more or less as a capital item, using the industry term, a “book of business". (And see the trial Reasons, para. 192.) It is true that such a "book” is sometimes "sold" between brokers. But brokers are also free to compete for customers (as noted below in Part G). [34] And the value of a book of business" is partly based upon an estimate of how many trading fees those customers are likely to generate each typical year, using a multiple of a few years. Though the two competing experts here differed on the ratio of annual commissions, they agreed on the method to value the "book" here. The total market value of clients' investments was not their basis for the value of the "book" (to a brokerage or a representative). They agreed that value came from a calculation of annual commissions from customer trades. (See transcript pp. 583, 603, 604, 622, 633, 1731). [35] So at the outset, there is double counting in the Reasons' second damage award here. Courts must avoid that: Honda, para. 60. Two names represent more or less the same thing: (a) awarding lost future income (the first head of damages), and (b) awarding the present capital value of future income (the value of the "book") (the second head of damages). [36] The appellant employer paid the respondent employee a large annual commission or salary, because of the valuable fees from trades which he induced his flock of customers to make. Similarly, on dismissal without notice, the respondent got an amount based on an estimate of that same amount (as damages or as pay in lieu) during the one-year notice period. Then this trial judgment gave him an additional sum (equal to about a further 2-2/3 years' salary) to compensate for future lack of earnings from most of those same customers (paras. 180, 186, 197). [37] The only way to avoid double counting is to do all the calculations consistently on the same basis. It could all be done on a capital basis; but it is more easily done on an income basis. What is that income-basis calculation here? The trial judgment here in effect gave lost income, but in total (both heads) equivalent to a notice period of 3-2/3 years. That could not possibly be justified from case law. One year was sufficient on all the facts. [38] Besides, if one ignores the causes of action and heads of damage which were properly rejected by the trial Reasons, this second award seems inextricably tied to lack of notice. See for example paragraphs 192, 197. F. Hadley v. Baxendale [39] The respondent's counsel has an alternative argument to support the extra $1.6 million in damages. He argues that it could also be based on foreseeability of loss, under the well-known old case, Hadley v. Baxendale (1854) 9 Ex. 341, 156 E.R. 145, 23 L.J. Ex. 179. The Supreme Court of Canada refers to that case in Honda (paras. 54, 55). A few recent cases do indeed speak of Hadley as though it were a new head of damages. (Whether the Reasons here, para. 192, imply that is not clear.) As noted, the respondent also suggests that it is a new head of damages. [40] But it is no such thing, and never has been. Hadley v. Baxendale is a limit on damages, not even a floor for calculating damages, let alone a ground for awarding them.
[40] But it is no such thing, and never has been. Hadley v. Baxendale is a limit on damages, not even a floor for calculating damages, let alone a ground for awarding them. It merely excludes damages which are too remote, typically because they were not foreseeable. See Anson's Law of Contract 600 ff. (28th ed. 2002); Cheshire, Fifoot and Furmston's Law of Contract 751 ff. (15th ed. 2007); Treitel, The Law of Contract 1045-46 (12th ed. 2007). [41] More significantly, Hadley is a case about damages. It does not regulate what is a breach of contract and what is not: Mathieson v. Scotia Capital, supra (paras. 82-83, 87). Even clearly foreseeable losses are not compensated unless they are caused by a breach of contract (or a tort): Anson, op. cit. supra, at 601; Treitel, op. cit. supra, at 1055- 56. Therefore, foreseeable losses from the fact of dismissal are not compensable, because dismissal is not a breach of contract. Only those flowing from lack of reasonable notice (or true Honda misconduct) are compensated. G. Unfair Competition [42] Another plausible suggestion in the respondent's factum is that the appellant employer was guilty of “extremely unfair competition" (para. 42), by setting up the manner and timing of the respondent's dismissal so as to sequester the respondent's clients. 1. Law [43] But there is a legal problem with that suggestion. Interference with contractual relations, and conspiracy, and intentional infliction of harm, can all be (overlapping) torts. However, here the respondent plaintiff has not proved all the necessary elements of any of the three torts. The Reasons properly find that no tort was committed here (see paras. 141, 147, 156, 171, 175); that finding is not challenged on appeal. So there cannot be damages for such a tort. [44] The trial Reasons concluded that on all the facts here, the customer lists here belonged to the appellant employer (Reasons, para. 170). No one challenges that finding. [45] But that is not the end of the topic. As soon as an employer and employee part ways, they are free at once to compete with each other for clients, if there was no confidential information or relation, nor express restrictive covenant. Such competition cannot itself create Honda damages: RBC Dom. Securs. v. Merrill Lynch Can., 2008 SCC 54 (CanLII), [2008] 3 S.C.R. 79, 380 N.R. 166 (paras. 18-19). Cf. Whitehouse v. RBC Dom. Securs., 2006 ABQB 372 (CanLII), 400 A.R. 209 (para. 44). Indeed the Reasons say that too (para. 160). [46] So I cannot see how in law such competition could itself be "undue unfairness" in mode of dismissal under Honda, and so could ground a second head of damages. [47] The trial Reasons criticize some acts by the appellant employer, but never suggest that they were infected by bad faith (see for instance paras. 113, 114). 2. Facts [48] In any event, whatever the law is, the facts here do not bear out the respondent plaintiff's theory. (See Honda at para. 19; cf. Desforge v. E-D, supra, at para. 84.) I am not questioning the trial Reasons' fact findings, indeed many of the 12 points below are supported by the Reasons' express fact findings. The respondent's hypothesis is that the appellant planned and carried out the dismissal to unfairly wall the respondent off from his clients. The facts refute that 12 different ways. Bac [49] First, the respondent plaintiff alleges that the appellant deliberately delayed and then structured the dismissal, all in order to get the clients. The Reasons properly find the opposite (paras. 160-71, 175). And the internal e-mails of the appellant which the respondent relies similarly say the opposite. The appellant's fear was that without advance preparation, the respondent would induce some of his fellow investment representatives to quit and accompany him (transcript, p. 1790). One of them had followed him from
[49] First, the respondent plaintiff alleges that the appellant deliberately delayed and then structured the dismissal, all in order to get the clients. The Reasons properly find the opposite (paras. 160-71, 175). And the internal e-mails of the appellant which the respondent relies similarly say the opposite. The appellant's fear was that without advance preparation, the respondent would induce some of his fellow investment representatives to quit and accompany him (transcript, p. 1790). One of them had followed him from his former employer. So the appellant's motives had to do with competition for employees, not customers. What the appellant intended (rightly or wrongly) was not unfair competition against the respondent; it feared his unfair (even illegal) competition. Whether his competition for employees would actually have been illegal does not matter, as it never occurred. [50] Second, the appellant employer honestly believed that it had just cause to dismiss the respondent: breach of various industry regulations and non-disclosures, and disobediences. The Reasons accepted that evidence of good faith, and rejected the respondent's argument (paras. 136, 171, 204). So this was the real and sincere motive for dismissal (maybe combined with failure to police credit-margins), not a trumped-up excuse to steal clients. That bars Honda damages for the reasons for dismissal: Honda at paras. 37-38, 45. [51] Third, whether the respondent was at the appellant's offices, or at home on the day of dismissal or thereafter, made little difference. At home he had full names and contact information for all the clients with whom he dealt (Reasons, para. 173). [52] Fourth, the respondent's own evidence was that he knew that he was going to be fired. He said that he had realized for at least two days (more likely four or five) that the upcoming Friday meeting at a hotel was to dismiss him (trial evidence, pp. 116, 118-19). Indeed a few weeks before, there had been many big straws in the wind from and after a Toronto meeting with his employer (the appellant) (trial evidence, pp. 115, 117). [53] Fifth, the number of clients was not so large that lack of his former assistants to help would be a serious impediment to contacting clients. And temporary help could have been hired or retained to assist with the clerical aspects. (And on purity of the appellant's motives, see the Reasons, para. 167.) Furthermore, right after his dismissal, the respondent met outside with his team (see his trial evidence, pp. 116, 118). [54] Sixth, the appellant employer did not contact any of the clients before the dismissal. Indeed, most clients did not hear about the departure of the respondent until the following Monday or later. Letters were sent out by Canada Post. As the respondent's counsel points out, the document called "agreed facts" (office consolidation of admissions) does say that the appellant contacted some clients on Friday afternoon (Extracts, pp. R12, R14); but little turns on Friday afternoon vs. Monday morning. [55] Seventh, industry regulations required the appellant brokerage to contact the clients. There could be no gap in availability of an investment adviser, and clients might want to make trades; some inevitably would. Delay in executing a trade on an exchange can have grave consequences. The Reasons accepted expert evidence to that effect (paras. 164-166). (See also the transcript, p. 688.) Furthermore, in the wake of the previous month's stock market collapse, clients were extremely concerned generally (oral evidence, p. 689). [56] Eighth, the appellant's staff contacted clients in a fair way. Clients were told that the respondent had left, not that he was dismissed, and not why. That was fair (Reasons, paras. 113, 119, 122-23). Maybe it was more than fair. The appellant instructed its employees that any client who wanted to leave the appellant brokerage should be allowed to do so. There is no suggestion that any client was deterred, nor told anything untrue or unfair. (Reasons, paras. 163, 164). [57] Ninth, the respondent argues that prospective employers might have thought that the respondent "may have been involved in something improper" because he had been dismissed (factum, para. 40, and cf. Reasons, paras. 192, 197). But he was so involved, and the trial Reasons so found (paras. 47, 67-69, 81, 92-94, 112). Nor can the appellant Pac be responsible for assumptions by customers and strangers not arising from any act by the appellant.
[58] Tenth, the respondent was licensed only as a representative employee (salesman and adviser), and not as a broker. It was illegal for him to do anything for the clients until he was again employed by a licensed broker. (See Extracts, Tab C, p. A15, transcript, p. 688, and respondent's factum, para. 16.) [59] Eleventh, the respondent could have contacted the clients merely to say that he had not forgotten them, and hoped to be with another broker soon, or to explain the circumstances. Neither law nor logistics prevented any of those three things. But the respondent chose not to say anything. He thought (probably reasonably) that it was better to wait until he had positive definite news. And he did not want to have to answer questions, his counsel told us. [60] Twelfth, in cross-examination, the respondent admitted that a number of his clients had lost money under his stewardship, and were disappointed, and that that was a factor in their not following him. He was dismissed in mid-May 2001; April 2001 had witnessed a substantial collapse in the stock market, and clients were very concerned (transcript, p. 689). [61] So the respondent plaintiff's hypothesis about the appellant's motives and their consequences is not factually correct. [62] The respondent's big problem was that it took about three weeks to find another job in the industry, and that was in a second-tier firm with fewer advantages, e.g. little or no research department (see respondent's factum, para. 20). Counsel for the respondent also made that very point in oral argument. But that detriment was a product of dismissal, not caused by want of pay in lieu of notice. The law gives no right to such working notice (as noted in Part C). H. Conclusion [63] The second damage award of $1.6 million has no basis in law: it purports to compensate for matters which the law does not recognize as compensable. And it lacks a factual basis. Furthermore, it appears to contain an element of double counting for the lack of reasonable notice; that has already been compensated for by the award of $600,000. The extra $1.6 million award cannot stand, and so must be quashed. [64] I would allow the appeal accordingly. [65] I would reduce the appellant's costs by $500 because of the very poor copy of the key document, the trial Reasons, in the Appeal Record. Appeal heard on June 3, 2010 Reasons filed at Calgary, Alberta this 27th day of August, 2010
Find the court's decision in Merrill Lynch Canada Inc. v. Soost, 2010 ABCA 251. It will be helpful to read the case in its entirety before answering the following question. With respect to the award of damages in this wrongful dismissal case, which one of the following statements is FALSE? Select one: a. The Court of Appeal stressed that to justify an award for Honda damages, there needs to be unfairness or insensitivity in the methods used to dismiss. The mere fact of dismissal does not justify an additional award. Dismissal itself is not a breach of the employment contract. b. Honda damages (damages in excess of those for failure to give notice or pay in lieu of notice) are an automatic enhancement of all wrongful dismissal damages. c. Although the Trial Judge found there was some merit to some of the grounds, he found that they were not sufficient to justify summary dismissal of someone in the Respondent's position. The Trial Judge assessed damages in lieu of notice at $600,000 based on a 12 month notice period. d. At trial, in addition to awarding damages in lieu of notice, the Trial Judge awarded the financial advisor $1.6 million for loss of reputation and book of business" resulting from the manner of the financial advisor's dismissal. This award was overturned on appeal.
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