FAQ's Cases - Stewart McKelvey

Balogun v. Deloitte & Touche, LLP Page 10defendant’s failure to follow the matter up with a later request by letter or telephonemessage.[36] Instead of asking the plaintiff to confirm his resignation and eliminate anyuncertainty, the defendant simply sent the record of employment to the plaintiff andto Service Canada. Although neither Mr. Buchan nor Mr. Fichtner said anything onJune 16 that amounted to or was intended to amount to a notice of termination, thesubsequent delivery of the ROE clearly communicated to the plaintiff that theemployer considered the employment relationship to have ended.[37] Counsel for the defendant argues that, on seeing the ROE’s reference toresignation, the plaintiff should have made greater effort to contact the defendantand clarify his position. I do not accept that submission because, by that point, theemployment contract had been terminated and even if the plaintiff had made thoseefforts, Mr. Fichtner made clear in his testimony that he would not have consideredreinstatement.2011 BCSC 1314 (CanLII)[38] I therefore find that the plaintiff has met the onus of proving, on a balance ofprobabilities, that he was dismissed without notice.V. Damages for Wrongful Dismissal[39] Damages for wrongful dismissal are normally based on the income theplaintiff would have received during the appropriate notice period. A non-exhaustivelist of the factors to consider in determining a reasonable notice period are set out inthe frequently quoted passage from Bardal v. The Globe and Mail Ltd., 1960 24D.L.R. (2d) 140:There can be no catalogue laid down as to what is reasonable notice inparticular classes of cases. The reasonableness of the notice must bedecided with reference to each particular case, having regard to the characterof the employment, the length of service of the servant, the age of the servantand the availability of similar employment, having regard to the experience,training and qualifications of the servant. [at p. 145][40] Of particular importance in this case is the very short length of service. Theplaintiff worked for the defendant for only seven and a half months, although he was