Hill v. Johnson Controls L.P. ,


2006 BCSC 826

Date: 20060531
Docket: S053744
Registry: Vancouver


Peter J. Hill



Johnson Controls L.P.


Before: The Honourable Mr. Justice Nathan Smith

Reasons for Judgment
(In Chambers)

Counsel for the plaintiff

Richard Press

Counsel for the defendant

Will Cascadden

Date and Place of Trial/Hearing:

May 1 and 2, 2006


Vancouver, B.C.

[1]                The plaintiff was an employee of the defendant from July, 2001 until he was fired on March 28, 2005.  The defendant admits that the plaintiff was dismissed without just cause and the plaintiff seeks damages for wrongful dismissal.

[2]                Prior to his dismissal, the plaintiff’s income was based on a combination of salary and “incentive bonuses” (commissions).  The major issues on this summary trial under Rule 18A are:

(1)        Is the plaintiff entitled to the approximately $130,000 in commissions that he says are owed to him?

(2)        How much notice was the plaintiff entitled to?

(3)        What would the plaintiff’s income have been during the notice period?


[3]                The plaintiff, Peter Hill, is a 50-year old professional engineer.  The defendant, Johnson Controls L.P., is a limited partnership and is part of a multi-national group of companies that installs and services electrical and mechanical systems in commercial buildings. 

[4]                From 1997 to 2001, the plaintiff worked for a company called Rose Technology Group as project development manager.  One of the projects he was involved in was a Public-Private Partnership (P3) to design, build and operate a recreational facility for the city of Cranbrook.  In early 2001, new owners of Rose Technology Group closed its office in Western Canada and the plaintiff’s employment was terminated.  He began working for Task Construction Management, which had also been involved in the Cranbrook project. 

[5]                In May, 2001, the plaintiff was approached by a “head hunter” acting for the defendant and attended an interview with the defendant’s Vancouver branch manager.  At that meeting, the plaintiff says he was told that the defendant was targeting the health care industry and was looking for someone who could deal with architects, engineers and others who were involved in the design, construction and operation of health care facilities.  He was told that his engineering background and experience with P3 projects made him an attractive candidate.  This evidence is not specifically contradicted, although the defendant says the plaintiff was hired as a salesperson.

[6]                The plaintiff accepted a job with the defendant on June 19, 2001 and began work on July 3.  The agreed upon salary was $63,000 a year plus commissions, with a guarantee of $6,500 in commissions for the first year and a $5,000 signing bonus.  The plaintiff also says he was told that in subsequent years he could expect that commissions would bring his total income to $100,000 a year.  In discovery evidence, he said that figure was “floated as a target number” but he did not ask for any details of how commissions were calculated.

[7]                The plaintiff’s previous income with Rose Technology Group had been slightly below $100,000 a year and I accept that he would not have taken the job with the defendant without some representation that income in that range was attainable.  However, the evidence falls far short of establishing that an annual income of $100,000 was in any way guaranteed as a term of the employment contract.

[8]                The plaintiff’s performance in his new job was initially disappointing, at least in part because of re-organization and reduced spending in the British Columbia health care system.  However, by late 2002 or early 2003 he became involved with two P3 projects: the Abbotsford Hospital and Cancer Centre and the Academic Ambulatory Care Centre at the Vancouver Hospital.  These projects were the main focus of his work until October, 2004, when he says he was told by a supervisor that those projects had reached a point where he should concentrate on securing new work.

[9]                The plaintiff says he had been hired to sell the defendant’s standard “performance contracts.”  Under a performance contract, the defendant would install energy efficient lighting and air conditioning systems, or retrofit an existing building. He says the average performance contract had a value of $1 to $2 million and usually was completed within 12 to 18 months.

[10]            The plaintiff says the two P3 contracts were significantly larger and more complex.  The Abbotsford project called for the defendant to be paid $6 million for design and building services and $3 million a year for operation and maintenance for 25 years.  The Vancouver project was worth $1 million for design and building and $300,000 a year for 25 years of service agreements.

[11]            Just before the Easter weekend in 2005, the plaintiff’s supervisor telephoned him from Toronto to say he would be coming to Vancouver after the long weekend.  The plaintiff pressed for the reasons for the visit and was eventually told he was going to be fired.  Instead of coming to Vancouver, the supervisor couriered a letter to the plaintiff, dated March 28, informing him of his dismissal and offering six weeks severance pay, plus any unused accrued vacation. 

[12]            The plaintiff said he had earned $13,950 in commissions in March 2005 and the defendant initially refused to pay this amount because its incentive plan states that an employee is only eligible to receive commissions if he or she is still employed at the end of the month.  However, the defendant ultimately backed down from that position and paid the March commissions.

[13]             At the time his employment ended, the plaintiff was earning a base annual salary of $68,808.48.  He says he was also paid total commissions for the preceding 12 months of $59,607 resulting in total income for the year of $128,415.48. The defendant paid him $7,939.44 as severance, equal to six weeks’ notice.


[14]            The defendant paid commissions according to a complicated “incentive plan” under which the payment structure varied with the nature of the contract between the defendant and its client.  A revised version of the incentive plan was issued each year.  The plaintiff says he did not receive a copy of the incentive plan until several months after he started working for the defendant. 

[15]            The plaintiff argues that it was imposed unilaterally after he began work.  However, I have no doubt that the incentive plan however it is interpreted, forms part of the employment contract.  The plaintiff continued his employment for more than three years after he knew or should have known the commission structure.  He therefore must be taken to have accepted the commission structure as part of the terms of his employment.  (Barrie v. Voith Canada Inc., 2004 BCSC 1728 at ¶57):  

[16]            The plaintiff has calculated that, as of the date of his dismissal, he was owed $130,917 under the incentive plan.  The defendant does not specifically dispute the calculation, but relies on a provision of the incentive plan to assert that the commissions were not yet payable when the plaintiff was dismissed and, with one minor exception, would not yet be payable even if the plaintiff was still employed.  The defendant also says that some of the commissions are dependent on the employee performing certain ongoing services that the plaintiff is no longer there to perform.

[17]            To a reader not intimately familiar with the defendant’s operations and its accounting practices, the document setting out the incentive plan is largely incomprehensible.  A number of key terms are not defined in the document, although they presumably have a generally understood meaning within the company.

[18]            The defendant relies on paragraph 5 of the incentive plan, which states:

Letters of Intent will be excluded from any incentive calculation.  Incentive will be paid only on signed contracts.

The defendant says that most of the contracts in issue are subject only to letters of intent.  Although work is being done on the projects, contracts have not been signed.

[19]            The plaintiff relies on other provisions of the incentive plan that refer to the date a contract is “booked.” The terms “booked” and “booking” are not defined in the document, but I understand from the submissions of counsel that they refer to the date the contract is entered into the defendant’s books and treated as a source of revenue.  The plaintiff says that the contracts at issue have been booked.

[20]            References to booking appear in a number of paragraphs of the incentive plan that relate to different forms of contracts.  An example is paragraph 12.3, which reads:

The secured margin incentive payment will be paid at booking after quota attainment and retroactive to the first secured margin dollar credited for the Plan year.  The executed margin incentive will be calculated and paid from the first payment made from 0% POC, with incentive payments continuing up to the 50 % POC point.  Additional incentive, due or overpaid, will be calculated and paid (or collected) at transfer and in subsequent months for any late charges and credits. 

[21]            As difficult as that paragraph is to understand in detail, it clearly indicates that the employer’s liability to pay at least part of the commission is triggered by booking, with further payments tied to progress of the job.

[22]            Other paragraphs in the agreement refer to money paid on booking, with “reconciliation” and/or further payments at the time of “transfer.”  The term “transfer” is undefined, but the plaintiff says it is another step in the defendant’s internal accounting system.  The language of those paragraphs indicates that commissions received at time of booking may be subject to later adjustment upward or downward, depending on whether initial profit or revenue estimates are realized. 

[23]            The plaintiff says that provisions referring to money that “will be paid” on booking are mandatory and do not make those payments subject to any other event.  The defendant says those provisions must be read subject to an over-riding requirement that a signed contract is in place.

[24]            I agree with the plaintiff that paragraph 5 of the incentive plan, which contains the requirement for a “signed contract”, is inconsistent with the paragraphs that create an unqualified obligation to pay at least some of the commission at the time of booking.  I was referred to a number of cases where the issue of inconsistency or ambiguity in employment contracts was considered, but I find the most helpful discussion to be in Pathak v. Royal Bank Canada (1994), 8 C.C.E.L. (2d) 113 (B.C.S.C.), aff’d (1996), 21 B.C.L.R. (3d) 108 (C.A.).  In that case, Kirkpatrick J. cited the following principle at ¶9: 

Where the different parts of an instrument are inconsistent, effect must be given to that part which is calculated to carry into effect the real intention of the parties as gathered from the instrument as a whole…

[25]            The clear intention of the parties was that the employee’s income would be partially dependent on the business he or she is able to generate for the employer, with the employee receiving commissions as and when the employer receives the benefits of the employee’s work.  The difficulty arises because the contract sets up two different triggering events for payment of commissions, which in this case appear to have occurred in the reverse of the anticipated order. 

[26]            In the normal course of events, I assume the defendant would do no work and receive no income without a signed contract.  However, in this case the absence of signed contracts has not prevented the defendant from doing some work, booking the contracts and accepting certain revenue.  In those circumstances, the interpretation most consistent with the intention of the parties is that the employee is not entitled to commissions on work that never comes to fruition, but the employer is not entitled to withhold commissions out of revenue it has received.  

[27]            If I am wrong in attributing that intention to the parties, I would be left with an ambiguity that could not be resolved on the basis of the contract or the surrounding circumstances.  In that case, the question that would arise is whether the document should be interpreted contra proferentem, that is, against the drafter of the contract.  As Kirkpatrick J. stated in Pathak at ¶17: 

Where there exists an irreconcilable ambiguity in the terms of the contract, a fundamental rule of construction allows that, as between two interpretations equally consistent with the language of the contract, the interpretation should be chosen which works against the stipulator of the contract…

[28]            The ambiguity in this case would arise in determining what the parties intended to happen when a contract was booked before it was signed.  It may be that the defendant intended it could do a job and obtain revenue while still making the payment of commissions subject to a further event – the signing of a contract - that might never take place and which the employee would have no ability to influence.  Assuming that to be a reasonable interpretation (although I do not think it is), it is not an intention that could be attributed to the plaintiff, who could reasonably interpret the contract as entitling him to commission at the point the defendant accepts the job as a revenue source. 

[29]            On that analysis, it is not possible to say, from the wording of the contract, what the true mutual intent of the parties was.  There is a prima facie ambiguity that cannot be reconciled.  In these circumstances, it becomes necessary to consider the circumstance of the contract and whether there was any true opportunity for negotiation. 

[30]            The incentive plan is a standard document used by the defendant.  It was presented to the plaintiff after he had joined the company and a revised version was presented to all commission employees each year.  The plaintiff had no real opportunity to negotiate its terms.  If he did not like the terms, his only option was to leave his job.  In these circumstances, the contra proferentem rule applies and the incentive plan should be given the meaning least favourable to the defendant.

[31]            I am fortified in that conclusion by noting that, if the defendant had wanted the requirement for a signed contract in paragraph 5 to over-ride the other provisions requiring payment at the time of booking, it could have made that clear by including in paragraph 5 a phrase such as “notwithstanding any other provision of this plan” or by including in the other provisions a phrase such as “subject to paragraph 5.”  It did not do so. 

[32]            The plaintiff says he is owed commissions of approximately $130,000.  This is based on his own calculations pursuant to the incentive plan and on statements he says have been made to him by employees of the defendant about the status of the various contracts.  The plaintiff’s effort to calculate outstanding commissions has been hampered by the fact that the defendant has refused to answer certain interrogatories about the accounting status of the contracts, the extent to which work has been completed, and the revenue received.  The defendant has apparently taken the position that this information is not relevant, based on its view that no commissions are payable because the contracts have not been signed.

[33]            The plaintiff argues that, in the absence of any alternative calculation by the defendant, his calculation should be accepted as the only evidence.  While that has a superficial simplicity, I do not think it would be fair in the circumstances.  While I have found that the contract entitles the plaintiff to payment of part of his commissions when contracts were booked, I also accept that part of the commission is based on work completed and/or revenue received.  This assumes that the plaintiff is still employed when that work is done and still available to work with those clients as necessary.

[34]            To the extent any of those additional payments had also become due at the date of dismissal or would likely have become due during whatever I find to be the appropriate notice period, the plaintiff is entitled to those.  He is not entitled to anything that would only become due after the notice period.  I am not satisfied that the plaintiff’s calculation properly recognizes that distinction.

[35]            It also appears that at least some commission payments owing at the time of dismissal or that would have become owing during the notice period would have been subject to later adjustment upward or downward, based on the actual revenue experience.  To the extent such adjustment would have taken place after the notice period, neither party can take advantage of any adjustments that might have taken place.  

[36]            I have not been asked to decide whether the defendant properly refused to answer the interrogatories seeking the information on which a commission calculation might have been made.  There is certainly a strong argument to be made that the defendant was not entitled to define relevance purely on the basis of its interpretation of the contract, which it knew to be disputed.

[37]            However, it was open to the defendant, on this application, to rely on its interpretation of the contract and not to advance alternative arguments that might detract from what it considered to be its strongest point.  If the defendant now believes that the plaintiff’s calculation is wrong, based on the contract as I have interpreted it and the notice period that I will set out below, it will have liberty to file a written submission and any supporting evidence for an alternate calculation within 30 days of the date of these reasons.  The plaintiff will have a further 14 days to respond to those submissions.  In the absence of a submission by the defendant within 30 days, the plaintiff will be entitled to commissions owing in the amount he has calculated.  That amount is $130,917.

Reasonable Notice

[38]            The plaintiff says that he was entitled to 14 to 18 months notice.  The defendant says the appropriate notice period was 10 to 16 weeks.  The usual factors that the court considers in establishing the reasonable notice period are set out in the following frequently cited passage from Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.J.) at ¶21: 

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 and qualifications of the servant. 

[39]            In Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, 152 D.L.R. (4th) 1, the Supreme Court of Canada made it clear that this is not an exhaustive list and other factors may be considered.  These factors may include whether the employee has been induced to leave secure employment and the employer’s conduct at the time of termination: 

The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need of protection.  In recognition of this need, the law ought to encourage conduct that minimizes the damage and dislocation (both economic and personal) that result from dismissal.  In Machtinger, supra, it was noted that the manner in which employment can be terminated is equally important to an individual’s identity as the work itself (at p. 1002).  By way of expanding upon this statement, I note that the loss of one’s job is always a traumatic event.  However, when termination is accompanied by acts of bad faith in the manner of discharge, the results can be especially devastating.  In my opinion, to ensure that employees receive adequate protection, employers ought to be held to an obligation of good faith and fair dealing in the manner of dismissal, the breach of which will be compensated for by adding to the length of the notice period.  (¶ 95)

[40]            In Meyer v. Danka Business Systems Ltd. 2001 BCSC 428, Bauman J. summarized “Wallace damages” at ¶131 as arising out “bad faith conduct or unfair dealing in the course of dismissal.”  I do not understand Wallace to suggest that an employer’s conduct must show bad faith in all respects in order to attract the additional sanction of an increased notice period.  The Supreme Court of Canada explicitly recognized that there can be varying degrees of bad faith, with varying impacts on the notice period at ¶s 98 and 101: 

The obligation of good faith and fair dealing is incapable of precise definition.  However, at a minimum, I believe that in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive. 

I note that, depending upon the circumstances of the individual case, not all acts of bad faith or unfair dealing will be equally injurious and thus, the amount by which the notice period is extended will vary.  Furthermore, I do not intend to advocate anything akin to an automatic claim for damages under this heading in every case of dismissal.  In each case, the trial judge must examine the nature of the bad faith conduct and its impact in the circumstances. 

[41]            In this case, the defendant’s conduct was in many ways appropriate and reasonably sensitive.  The supervisor, Mr. Andreeta, apparently intended to come to Vancouver to inform the plaintiff of his dismissal in person.  It was only when the plaintiff pressed for an explanation of the purpose of the intended trip that Mr. Andreeta stated by telephone that the plaintiff was going to be fired.  The letter of dismissal said the dismissal came as a result of an evaluation of all aspects of the business.  There was no attempt to link the dismissal to any deficiencies in the plaintiff’s performance or to assert cause.  The plaintiff was offered “outplacement assistance”. 

[42]            However, in the course of what was otherwise appropriate conduct, the defendant took one unreasonable position that it knew or ought to have known would be particularly upsetting and insulting to the plaintiff in the circumstances.  The March 28 dismissal letter contained an offer of six weeks’ pay and stated that was all the plaintiff was entitled to “under the employment law upon termination of employment”.  The plaintiff had earned commissions in March of $13,905.  According to the plaintiff’s uncontradicted evidence, the defendant initially took the position that it did not have to pay this amount because it had chosen to terminate the plaintiff three days before the end of the month.  This position was based on a provision of the incentive plan that stated “only personnel who are actually working in the company’s employ on the last working day of the month are eligible for incentive earnings for that month.” 

[43]            The plaintiff says he was particularly angry that the defendant did not wait three days so he would be eligible for that commission.  He believed the defendant was reaping the benefits of his work while he was being cut off.  That is an entirely understandable reaction. 

[44]            It is well settled, and the defendant concedes, that a dismissed employee is entitled to receive what he would have earned had he worked through the notice period.  The defendant initially said the plaintiff was entitled to pay for a period of six-weeks’ notice, indicating it had turned its mind to what it believed to be the plaintiff’s entitlement.  If it had done so fully and in complete good faith, it would have realized that the plaintiff was also entitled to any commissions that would be payable during those six weeks.

[45]            About a month after the plaintiff’s dismissal, after the plaintiff had pursued the matter with the defendant’s head office in the U.S., the defendant agreed to pay the $13,905 in commissions for March.  The defendant obviously realized the error of its initial position, but not before it had needlessly and unreasonably added to the stress and aguish that inevitably accompanies any dismissal.  I therefore find the plaintiff is entitled to some, albeit relatively small, increase in the notice period based on bad faith. 

[46]            I now turn to the question of the proper notice that was required.  The defendant says that the plaintiff was a sales person and relies on a number of cases that suggest the notice period should be relatively short, equal to approximately two and a half to three weeks for each year of service.  The leading case in this line of authority is Husband v. Labatt Brewing Co.,[1998] B.C.J. No. 3193 (S.C.).  Brenner J. (as he then was) said at ¶17: 

Generally, in “salesman” and “sales manager” cases the courts have consistently awarded notice in the range of 2.5 weeks per year of service even where the plaintiffs are in their 50s or 60s.  The principle underlying this is the fact that the skills of sales employees are considered to be more readily transferable, thus enabling them to secure new employment with relative ease. 

However, the Husband case makes clear that this is not an absolute rule to be applied in all cases involving sales positions: 

I accept the plaintiff’s submission that his job description of sales representative ought not to be conclusive and that the nature of his employment must be determined by examining the plaintiff’s actual duties and responsibilities.  (¶10)

[47]            For example, in Gillies v. Goldman Sachs Canada Inc. (2001), 95 B.C.L.R. (3d) 260, 2001 BCCA 683 the Court of Appeal held that 13 months was the appropriate notice period for a securities salesperson who, on the basis of the Husband formula, would have been entitled to less than four months.  The court emphasized the specialized nature of the sales function and the limited alternative employment opportunities in that field.

[48]            Similarly, I am satisfied that the plaintiff’s sales position in this case was a highly specialized one that made use of his professional knowledge and training in a market with a very small number of potential clients.  This is not a case where it can simply be assumed that a salesman experienced in selling one product or service can easily obtain another job selling the same thing or a job selling something else.  In fact, the plaintiff has still not been able to find a job that makes use of his knowledge and experience. 

[49]            The plaintiff also asserts that the notice period should be lengthened because the defendant specifically recruited him.  The Supreme Court of Canada in Wallace specifically referred to the effect of an inducement to leave secure employment, but stressed that not all inducements carry equal weight.  That is consistent with the comments of the Court of Appeal in Robertson v. Weavexx Corp. (1997), 30 B.C.L.R. (3d) 38.  Further, in Gillies, supra, the Court of Appeal indicated that inducement is a factor that can lengthen the notice period separate and apart from any issue of bad faith. 

[50]            The plaintiff in this case had been employed at Task Construction for only a few months before he was recruited by the defendant.  The plaintiff says this was effectively a continuation of the job he had been doing for his previous employer, but there is no evidence of how secure the job was.  The plaintiff says that a position with the defendant was attractive to him in part because the defendant was an international company that would give him greater opportunity for advancement.  In the circumstances of this case, I do not find inducement to be a significant factor.

[51]            The most significant factors in this case are the factors listed in Bardal, particularly the specialized nature of the work the plaintiff was doing for a specific class of clients and the limited opportunity for alternative employment in the field.

[52]            Of the large number of cases I have been referred to, those that most resemble the facts of this case are Meyer and Gillies, which I have previously referred to, and Frederick v. International Fund Raising Consultants Ltd., [1991] B.C.J. No. 3420 (S.C.). 

[53]            The plaintiff in Meyer was a salesperson earning an average income from commissions of $6,560 a month. He had almost 4 years of service and was 55 years old.  The court found no bad faith and awarded 10 months’ notice. The plaintiff in Frederick was a 44-year old sales consultant earning an average annual income from commissions of $70,000.  The plaintiff had 3 years of service and was 44 years old.  The court said eight months would normally be the reasonable notice period but extended it to 10 months based on “special considerations,” including the timing of the dismissal.  In Gillies the Court of Appeal set 13 months as the appropriate notice in a case involving a somewhat longer period of employment and a much higher income. 

[54]            Taking into consideration all the above factors, including the presence of some bad faith, I find that the plaintiff was entitled to 12 months’ notice. 

Income in the Notice Period

[55]            In fixing damages for lack of notice, I must consider both the salary and commission that the plaintiff would have earned during the notice period.  The plaintiff argues that his income in the 12 months preceding his dismissal was approximately $128,000 and that the average income over the two years preceding his dismissal was approximately $96,500.

[56]            However, the plaintiff’s commission income during that period was derived from the Abbotsford and Vancouver health care projects that were the main focus of his activity for almost two years before October, 2004.  I have already said that the plaintiff is entitled to any commissions from those projects that were owing at the time of dismissal or which would have become owing during the notice period.  To include those same commissions in the basic income calculation would be to compensate the plaintiff twice for the same amount.  There is no evidence that, by the time of his dismissal, the plaintiff had secured other projects that were producing income or that he would likely have done so during the notice period.  The plaintiff’s annually salary at the time of dismissal was $68,804.48.  He was paid $7,939.44 at the time of dismissal, leaving damages for lack of notice, not counting commissions, at $60,870 (rounded). 

Additional Damages

[57]            The plaintiff also claims payment of one week’s vacation.  In Scott v. Lillooet School District, No. 29 (1991), 60 B.C.L.R. (2d) 273, the Court of Appeal said that an award of full salary for the notice period necessarily includes payment for any vacation the plaintiff may have taken had he worked during that time and a separate award of vacation pay would amount to double recovery.

[58]            But in Bavaro v. North American Tea, Coffee & Herbs Trading Co. (2001), 86 B.C.L.R. (3d) 249, 2001 BCCA 149, the Court of Appeal said at ¶17 that Scott is not a complete bar to an award for vacation but “bars recovery unless the employee can demonstrate the lost opportunity to take a vacation.”  The court said that the employee who has been wrongfully dismissed should not have to overcome a presumption against recovery of vacation.  In that case the court upheld the award of vacation pay: 

As mentioned, the plaintiff searched for 10½ months before getting another job.  In my judgment, the evidence proves that he did not enjoy any time off during the notice period such that it could reasonably be said that he had a vacation and that he would be doubly compensated by adding vacation pay to the damage award.  I would uphold the award under this head as well as that for unused sick days which the contract converts to a vacation benefit. (¶21) 

[59]            Under sections 57 and 58 of the Employment Standards Act, R.S.B.C. 1996, c. 113 an employee is entitled to an annual vacation and vacation pay is determined according to annual income.  In Bavaro, the plaintiff had been awarded six months’ notice.  The plaintiff may or may not have taken his annual vacation during those six months if he had been working and, once dismissed, had to spend the notice period looking for work, with no opportunity for vacation.

[60]            In this case, I have awarded a full year’s notice.  On the basis of Scott and the Employment Standards Act, a full year’s income would have to include all vacation pay to which the plaintiff was entitled for that year.  I make no award for additional vacation pay. 

[61]            The plaintiff has had to spend $108 per month to replace Medical Services Plan coverage.  This was a benefit he would have been entitled to in addition to his salary during the notice period.  The benefit was continued for six weeks after termination, so the plaintiff is entitled to be compensated for that cost for an additional 10½ months, or $1,134.  The plaintiff claims a further $524 in special damages and mitigation expenses and the defendant does not dispute these amounts. 


[62]            In summary, I award the plaintiff the following:

(i)         Damages referable to the period
of reasonable notice                                                                 $60,870.00

(ii)        Special damages and mitigation expenses,
including the cost of medical coverage during
the notice period.                                                                        $1,658.00

(iii)       Commissions, subject to the defendant’s
liberty to make further submissions on the
calculation within 30 days.                                                      $130,917.00

[63]            The plaintiff is also entitled to interest and costs at scale 3.  

“Nathan H. Smith, J. “
The Honourable Mr. Justice Nathan H. Smith