View cases - Stewart McKelvey

- 25 -59 ... Damages attributable to conduct in the manner of dismissal are always to beawarded under the Hadley principle. Moreover, in cases where damages areawarded, no extension of the notice period is to be used to determine the properamount to be paid. The amount is to be fixed according to the same principles and inthe same way as in all other cases dealing with moral damages. Thus, if theemployee can prove that the manner of dismissal caused mental distress that was inthe contemplation of the parties, those damages will be awarded not through anarbitrary extension of the notice period, but through an award that reflects the actualdamages. Examples of conduct in dismissal resulting in compensable damages areattacking the employee’s reputation by declarations made at the time of dismissal,misrepresentation regarding the reason for the decision, or dismissal meant todeprive the employee of a pension benefit or other right, permanent status forinstance (see also the examples in Wallace, at paras. 99-100).2011 SKQB 318 (CanLII)[58] Before proceeding to an analysis of examples of conduct in dismissal which mayresult in an award of compensation, I would first make it clear that it is not my intent only toexamine the conduct of Capital Pontiac at the moment of dismissal on June 28, 2002. I amsatisfied that the court is also entitled to consider acts of the employer before and aftertermination. This view was endorsed by the Ontario Court of Appeal in Gismondi v. Toronto(City) (2003), 64 O.R. (3d) 688; 226 D.L.R. (4 th ) 334 (Ont. C.A.), wherein Mr. JusticeRosenberg wrote (at para 23):23 ... I do not disagree with the trial judge’s view that Wallace damages are notlimited to acts of the employer at the very moment of dismissal and can inappropriate circumstances include “the employer’s conduct pre- and posttermination... and the conduct of the employer in its aftermath” but only, in myview, as a component of the manner of dismissal.[59] In addition to enumerating a number of examples of conduct in dismissal which couldgive rise to compensable damages, Mr. Justice Bastarache also suggested looking at theexamples in Wallace mentioned at paras. 99-100. Among those are the cases of Trask v.Terra Nova Motors Ltd. (1995), and Jivrag v. City of Calgary (1986), 45 Alta. L.R. (2d) 343,(Alta. Q.B.), rev’d 62 Alta. L.R. (2d) xlviii.