Wrongful Dismissals And Settlements

Wrongful Dismissals And Settlements

The following case was heard in an Ontario courtroom and deals with the issues surrounding wrongful dismissal, the impact of a plaintiff’s actions following their dismissal, and handling of post severance settlements between grieving parties. If you have been terminated from your job in Alberta and you feel that the cause was unjust, or the severance package offered was incomplete, contact our wrongful dismissal lawyers here in Edmonton. Our employment lawyers can help so give us a call us today at 1-780-666-8161.





BEFORE: The Honourable Mr. Justice R. D. Reilly
COUNSEL: Bernard T. Verbanac, for the Plaintiff
Wayne R. Bumstead, for the Defendant
[1] The plaintiff, Dorin Plotogea, sued the defendant, Heartland Appliances Inc., for wrongful dismissal. The defendant pleaded just cause for dismissal and absent just cause, the failure of the plaintiff to mitigate his damages. By the judgment of this court released July 10, 2007, it was determined that Mr. Plotogea was indeed terminated without just cause. Thus the plaintiff was successful with respect to his principal claim. However, the court also found that the defendant had demonstrated, on a preponderance of the evidence that Mr. Plotogea failed to properly mitigate his damages by seeking alternate employment. Thus, the plaintiff was awarded only modest damages equivalent to two months of salary and benefits, amounting to $8,309.32 (less the $1,773.05 which Heartland paid to Mr. Plotogea by way of severance). Damages awarded by the court were therefore $6,536.27.
[2] The plaintiff seeks costs in the amount of $32,039.85 for fees and disbursements. The defendant seeks costs in the amount of $62,776.93. The trial occupied some 11 days. Much of the trial time was occupied with the defendant’s evidence relating to just cause for dismissal. The court ultimately rejected this defence.
[3] In summary, it could be said that the plaintiff’s claim for termination without just cause was entirely successful. It could also be said that the defendant’s position that the plaintiff had failed to mitigate his damages was entirely successful. This mixed success resulted in the modest damage award in favour of the plaintiff.
[4] It should be noted that the defendant also filed a counterclaim against the plaintiff for damages, which counterclaim was withdrawn at the onset of trial. I would note that I take into account the cost of preparing to defend this counterclaim by the plaintiff to the date of withdrawal of this counterclaim. Suffice to say, no time at trial was occupied in defending this counterclaim by the plaintiff.
[5] On March 23, 2005, following examinations for discovery the defendant made an offer to settle. This offer to settle was for $10,000, provided acceptance of the offer was made before the action was set down for trial or $7,500 if acceptance of the offer was made after the action was set down for trial. The offer also included $5,000 for the plaintiff’s claim for costs. The offer (or at least the $7,500 portion thereof) was to expire one minute after the commencement of trial. This offer (or at least the latter portion thereof) complied with rule 49.10 of the Rules of Civil Procedure. Although this rule entitles the defendant presumptively to partial indemnity costs from the date of the offer, the court has a discretion to otherwise order. Rule 57.01 provides that the court, in its discretion under section 131 of the Courts of Justice Act to award costs may consider the amount of costs that an unsuccessful party could reasonably expect to pay in relation to a step in the proceeding for which costs are being fixed, the amount claimed and the amount recovered in the proceeding, the apportionment of liability, the complexity of the proceeding, the importance of the issues, the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding and a party’s denial of or refusal to admit anything that should have been admitted. These are all factors I take into account in my assessment of appropriate costs for this trial.
[6] Counsel have made submissions with respect to whether this proceeding should have been under the rules governing Simplified Procedure and whether the failure to do so resulted in increased costs. While there is some merit to the defendant’s position in this regard, I conclude that this was an action that justified examinations for discovery. Thus launching the action in the normal course was entirely appropriate. Whether a settlement could have and should have been realized after discoveries is another question.
[7] This was a case that cried out for settlement. Given the result, it could be said that the offer of the defendant, whether for $15,000 “all in” or for $12,500 “all in” was eminently reasonable. Whether this offer complied or did not comply with rule 49.10, I take into consideration this offer in assessing costs.
[8] The majority of trial time was taken up with the defendant’s efforts to establish just cause for dismissal, which efforts were not successful. In my view, the defendant is not entitled to costs for this portion of the trial or for preparation of this defence. The defendant’s evidence with respect to the plaintiff’s failure to mitigate his damages was successful and the defendant is obviously entitled to its costs for that portion of the trial.
[9] To repeat, in part, my reference above to rule 57.01, I take into account the apportionment of liability, the complexity of the proceedings and the conduct of any party that tended to shorten to lengthen unnecessarily the duration of the proceedings as well as the amount of costs that an unsuccessful party could reasonably expect to pay and the offer to settle that was made by the defendant. I conclude that the plaintiff should pay costs to the defendant in the amount of $12,500, inclusive of disbursements and GST.
[10] Reference was made in passing to the possibility that plaintiff’s counsel had accepted this retainer on a contingency basis. That may be so. However, it is clear that both parties have suffered from this litigation a significant amount of unrecoverable costs. The result in this case should serve as a notice to litigants that they are well advised to settle the issues in a case such as this, which could have and should have been settled without the necessity of a trial.
R.D. Reilly, J.
DATE: August 29, 2007

Contact Our Wrongful Dismissal Lawyers

The case described above is not uncommon. If you feel that you have been fired from your job without just cause, and that your severance offer wasn’t fair, you may have a case against your previous employer. Our employment lawyers have the experience and resources you need for holding your previous employer accountable. As an employee in this province, you have rights. Let us defend them. Call us today at 1-780-666-8161.
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