Birch v. London Drugs Ltd.,


2003 BCSC 1253

Date: 20030812

Docket: S065050

Registry: New Westminster


Greg Birch



London Drugs Ltd.





Before: The Honourable Mr. Justice Williams

Reasons for Judgment

Counsel for the Plaintiff

K. Armstrong

Counsel for the Defendant

G.M. Scorer

Date and Place of Trial:

December 12, 2002


New Westminster, B.C.



[1]            Until October 10, 2000, Greg Birch, the plaintiff, was employed by the defendant London Drugs Ltd. as a merchandise handler.  On that date, the defendant terminated his employment without notice or cause.  He seeks damages for breach of contract arising out of his wrongful dismissal. 

[2]            The matter proceeds by way of summary trial under Rule 18A of the Rules of Court, B.C. Reg. 221/90. 

[3]            Counsel for Mr. Birch argues that he is entitled to payment in lieu of notice in the range of 15 to 24 months.  Counsel for the defendant says that the appropriate notice period is 20 weeks, and further contends that the award should be reduced because the plaintiff has not made proper efforts to mitigate his loss.  Furthermore, the defendant says that the plaintiff received Workers Compensation (W.C.B.) benefits in the months following his termination, and that these benefits must be offset against any damages for wrongful dismissal. 


[4]            The plaintiff is 35 years of age; when he was terminated by the defendant on October 10, 2000, he was 32 years old.  He had been hired by the defendant in October 1990 to work in a distribution centre and was employed there for a total of 10 years.  For the last eight years, he had been a receiver and merchandise handler; his duties included receiving goods, that is, comparing information on purchase orders to delivery records, insuring that the goods received corresponded with the related paperwork, tagging product, using the defendant’s computer system and filling orders.  At the time of dismissal, his annual salary was $47,860.80, plus he received a substantial benefit package. 

[5]            It is apparent that the plaintiff was seen by the defendant as something less than a stellar employee.  He had applied for advancement to the lead hand position on at least one occasion but had been passed over.  The plaintiff had demonstrated what the defendant perceived to be an attitude problem.  For his part, it seems fair to say that the plaintiff was not fully enthralled with his situation and had made efforts to advance his education, presumably to enable him to pursue a line of work other than that of a warehouse worker.

[6]            The plaintiff has a history of back injury.  He was off work and in receipt of W.C.B. benefits from April through September 1999.  In March 2000 he returned to partial W.C.B. status, that is, he was receiving temporary partial benefits and working part-time performing light duties at the warehouse.  This was his status up to the point of his termination. 

[7]            This is not a situation of termination for cause; the defendant concedes that this should be dealt with as a termination without cause.

[8]            At the point of termination, the plaintiff received 20 weeks’ pay in lieu of notice.  His benefits concluded forthwith.  The severance payment he received in lieu of notice was $18,408.

[9]            From the date of his dismissal until November 26, 2000, the plaintiff continued in receipt of W.C.B. benefits.  Between November 27, 2000 and January 21, 2001, he was enrolled in a job rehabilitation program, receiving rehabilitation benefits in the amount of $5,172.59 from W.C.B..  Between January 22, 2001 and April 15, 2001, the plaintiff says he was actively looking for work and was in receipt of W.C.B. “job search allowances”.  The total W.C.B. benefits received by the plaintiff amount to $16,876.91.

[10]        The plaintiff received Employment Insurance benefits between June 10, 2001 and December 8, 2001.

[11]        The plaintiff had taken courses at Kwantlen University College between 1996 and 1998, on a part-time basis, and had accumulated transfer credit courses necessary for his entrance to Simon Fraser University, Faculty of Business Administration.  In the fall, 2000, he completed the Canadian Securities course, receiving an honours pass on January 10, 2001.  Commencing January 2001, he enrolled, initially part-time and subsequently full time, at Simon Fraser University in the Faculty of Business Administration and obtained his third year business courses.  As well, in April 2002 he commenced another course offered by the Canadian Securities Institute, that offered training as a professional financial planner. 

[12]        Medical evidence confirms that the plaintiff has back problems and that heavy lifting jobs are not suitable for him.  This appears to correspond with the recognition by the Workers’ Compensation Board that an appropriate course of action was retraining for a more sedentary type of work. 

[13]        The material discloses that the plaintiff made a number of inquiries with respect to employment.  Commencing January 22, 2001, the evidence indicates that he made approximately five inquiries per day and that this carried on for a significant number of weeks.  There is no indication as to what the actual nature of the inquiry was.  The records disclose that he made inquiry or application for jobs in the brokerage and securities industry, banking and credit union situations, accounting and financial planner positions.  Later, he broadened his search to include automobile sales, general retail sales, claims investigation and customer service.  There are a small number of inquiries indicated in the field of purchasing or working on order desks.  I expect that this extensive record of job search was primarily a requirement of the W.C.B. program and the EI program.


[14]        The concept upon which a claim for wrongful dismissal is founded is most neatly summarized by McEachern, C.J.S.C. (as he then was) in Ansari v. B.C. Hydro (1986), 2 B.C.L.R. (2d) 33 (S.C.), at p. 36-7, affirmed, (1986),  55 B.C.L.R. (2d) xxxiii (C.A.):

The underlining principle which arises out of the law of master and servant (as they were called at common law), is that, absent contractual provisions, the master who terminates the employment of a servant must give reasonable notice, and upon doing so he is not required to compensate the servant in any way.  If the master does not give reasonable notice then the law requires him to compensate the servant by an award of damages that is intended to put the servant in the position he would be in if he had received proper notice.  In the assessment of these damages the recovery of lost income is not limited to salary, but includes other benefits incidental to the employment being terminated: Lawson v. Dom. Securities Corp., [1977] 2 A.C.W.S. 259 (Ont.C.A.).


[15]        With respect to determination of the period of reasonable notice, I refer again to the Ansari decision, at p. 37:

In what is often regarded as a leading case, Bardal v. Globe & Mail Ltd., [1960] O.W.N. 253, 24 D.L.R. (2d) 140 (Ont.H.C.), McRuer C.J.H.C. said at p. 145:


“There can be no catalogue laid down as to what is reasonable notice in particular classes of cases.  The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training the qualifications of the servant.”


[16]        It is generally accepted that these are the most significant criteria in the determination.  Other factors may be of importance, based upon the situation, and so the list is not exhaustive, but these are generally recognized as the important factors. 

[17]        Here, the plaintiff was a relatively young man at the time of dismissal, the length of employment was 10 years.  With respect to the character of the employment, the job was not one of particular skill or sophistication, I would assess it as slightly above entry level but not significantly so.  One would not expect similar employment to be enormously difficult to find. 

[18]        The plaintiff contends that this case is unique because he was suffering from a disability at the date of termination.  In support of that proposition, reference is made to an excerpt from Mole and Stendon, Wrongful Dismissal Practice Manual, (loose-leaf) (Markham: Butterworths, 1984-2002), at chap. 7.146:

The employee’s poor health or disability may need to be taken into account in assessing reasonable notice, as this may affect the employee’s ability to find a new job.  However, some judges have said this may not be a proper consideration, particularly if the employee is still fit to work or it has not affected the employee’s ability to find new work.  Others have taken the approach that it is a factor not to be given undue emphasis, but simply treated as part of the greater question of availability of similar employment.


The plaintiff has also filed a number of cases where the issue has been considered.  I have concluded that the issue is really one of functional analysis.  That is, it may be a factor that merits consideration, but it is as part of the issue of availability of similar employment to the plaintiff. 

[19]        Generally, I would expect that the plaintiff’s back condition might make it somewhat more difficult to find employment in the general area of warehousing and material management, but I recognize as well that the range of employment which would qualify as “similar” is fairly broad.  I find that this consideration entitles the plaintiff to a slightly greater period of reasonable notice. 

[20]        The facts of this case are somewhat unique in that the plaintiff has apparently determined that he intends to find employment of a substantially different type.  On the evidence, I can’t conclude that he realistically intended to find a warehouse/shipper job or job of a similar sort.  He made a conscious decision to complete the training necessary to find employment at a reasonably sophisticated level in the financial or white collar industry.  Indeed, there is reason to believe that he was preparing himself for that, even prior to dismissal. 

[21]        A terminated labourer cannot ask or expect to have his or her reasonable notice based upon an aspiration to find employment as a stock broker or financial planner.  Such a proposition smacks of requiring the former employer to act as a guarantor of quite a grant design.  Its reasonableness is suspect.  The plaintiff’s determination to advance to a higher level of occupation is commendable.  It cannot, however, form the justification for a substantially increased notice period.  The plaintiff here did not seek employment of an equivalent (albeit less physically demanding) job.

[22]        As is often the case, counsel offer up a number of cases, covering a broad range of circumstances and a similarly broad range of results.  The cases are helpful in a general way, but not scientifically determinative. 

[23]        On all of the facts, I have concluded that an appropriate period of notice should be based upon a factor of three weeks per year of employment, so that the plaintiff is entitled to a period of notice of 30 weeks.  By my calculation, that is a monetary award of $27,612.  This is calculated as 30 weeks of his yearly salary of approximately $47,860.80.  From this award, the 20 weeks of severance pay the plaintiff has already received must be deducted.  In the result, the plaintiff is entitled to an additional $9,204 as payment in lieu of notice.

[24]        The plaintiff did not seek compensation for incidental benefits after termination.  There is no evidence before the Court that would support an award under that head and accordingly no award shall be made.

[25]        The issue of mitigation has to be considered.  This flows from the rule that there is an obligation on the plaintiff to minimize his damages by actively pursuing comparable alternate employment.  The onus is on the defendant to prove that, if the plaintiff had made proper efforts to secure other employment, he would have secured it and thus minimized his damages. 

[26]        The defendant says that the plaintiff here made no appreciable efforts to mitigate his loss in the months following his termination and, accordingly, his entitlement to damages should be reduced.

[27]        It is true that the plaintiff did not actively pursue a similar position during the months immediately following his termination.  At the same time, he had made a conscious decision to refocus his vocational aspirations.  To that end, he pursued a program offered by W.C.B. that was oriented to retraining.  As well, he took steps to qualify himself for alternate and more suitable employment.  In a sense, these are in the nature of longer term efforts toward mitigation and, on all the evidence, I am not prepared to find that the defendant has satisfied its onus of proving a failure to mitigate by the plaintiff.  There will be no diminishment of his entitlement to an award of damages for the wrongful dismissal.

[28]        There is one other issue to be addressed in this matter.  The plaintiff received W.C.B. benefits from October 12, 2000 through April 15, 2001.  The period of notice that I have found to be appropriate covers the time period October 10, 2000 through May 8, 200l.  During that period of time, the plaintiff was in receipt of benefits from W.C.B. in the amount of $16,876.91 according to my calculation.

[29]        The law with respect to this issue is straight forward.  The amount of compensation received by a plaintiff during the term of notice should be considered in mitigation of the damages awarded.  This principle was considered by Kirkpatrick, J. in Royster v. 3584747 Canada Inc. (c.o.b.Kmart Canada Ltd.), [2001] B.C.J. No. 136 (S.C.).  She examined the authorities relating to the issue and concluded that W.C.B. compensation should be included in mitigation of damages.

[30]        In fact, I do not believe this proposition was contested by counsel for the plaintiff.

[31]        In the result, the plaintiff’s entitlement to an award of damages is reduced or offset in the amount of $16,876.91.  These are my calculations and if I am in error, I am prepared to hear from counsel.



[32]        The plaintiff’s entitlement is $27,612; of this, $18,408 was paid at the time of discharge and there is therefore a right to be paid the further sum of $9,209.  However, this award is subject to an offset in the amount of $16,876.91, the compensation received from W.C.B. during the notice period.  In the result, the actual amount owing to the plaintiff is in the negative.  Judgment will be entered in the amount of $0.

[33]         With respect to costs, while the plaintiff has succeeded in his claim, his award of damages by reason of the W.C.B. deduction amounts to $0.  I will therefore leave the issue of costs to counsel.  In the event that a further order of this Court is sought, counsel may provide written submissions or arrange with Trial Scheduling to have the matter brought back before me.

[34]        Judgment accordingly.

“J.W. Williams, J.”
The Honourable Mr. Justice J.W. Williams