CITATION: Beth v. Advanced Micro Devices, Inc., 2008 ONCA 686
DATE: 20081009
DOCKET: C48264
COURT OF APPEAL FOR ONTARIO
Goudge, Feldman and Rouleau JJ.A.
BETWEEN:
Donavan Beth
Respondent (Plaintiff)
and
Advanced Micro Devices, Inc.
Appellant (Defendant)
Trevor Lawson for the appellant
John R. Carruthers for the respondent
Heard: September 16, 2008
On appeal from the judgment of Justice Alfred Stong of the Superior Court of Justice dated December 10, 2007.
By The Court:
[1] The issue in this wrongful dismissal action was the proper period of reasonable notice that the employer was required to give the employee.
[2] The employee is a young man, now 30 years of age, who was head-hunted by the employer from a management track position at IBM where he had worked for 4 years. He was given a substantial increase in salary and a signing bonus and worked for 2 1/2 years with the ultimate job title of Manager, Business Management, before being terminated in a downsizing program by the employer. His salary at the time of his termination was $102,000. Part of his responsibilities included overseeing $1 billion in revenue and managing two to five employees.
[3] He based his claim on the proper application of the Bardol factors. He did not claim “Wallace damages” for bad faith in the manner of his dismissal. In his initial statement of claim, he claimed 7 months’ salary in lieu of notice, but amended his claim on consent shortly before trial to claim 10 months, because by the time of the trial, he had mitigated his damages and had found another job 10 months after the dismissal.
[4] Both counsel commendably tried to streamline the trial process by agreeing on as much as they could and narrowing the issues so that the trial lasted only 2 days. They submitted an agreed statement of facts and only one witness was called: the employee/plaintiff. The employer also agreed, through counsel, that the employee had taken all reasonable steps to mitigate his damages.
[5] The trial judge was very favourably impressed by the plaintiff, finding him to be a “reliable, honest, and sincere witness” who was forthright in his testimony and who did not appear to embellish during a thorough cross-examination. In his testimony, the employee recounted his employment history, the events surrounding his termination by the employer, and his job search thereafter, ultimately resulting in a new position 10 months later.
[6] The trial judge was also concerned, based on the employee’s evidence, which was the only evidence on the issue, about the way in which the employer terminated the employee and concluded that the employer had breached its obligation of good faith and fair dealing in that regard. Having acknowledged that such a breach was not pleaded, nor were “Wallace” damages claimed, the trial judge stated that he was adding to the length of the notice period to reflect that breach.
[7] The trial judge awarded the plaintiff damages for wrongful dismissal based on 10 months salary in lieu of notice. He did not state by how much he had increased the notice period as Wallace damages.
[8] On the appeal, the respondent accepts that the trial judge erred in awarding Wallace damages, but submits that based only on the Bardol factors, the proper range of notice was as high as 10 months, and on that basis, the appellant was entitled to receive the 10 months awarded by the trial judge.
[9] The employer argues that the proper range based on the Bardol factors was 2 to 5 months and that based on the trial judge’s error, this court should apply the Bardol factors and make an award in that range.
[10] In Minott v. O’Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321 at para. 62, this court discussed the standard of review in wrongful dismissal cases:
- This submission must be judged against the standard of appellate review of wrongful dismissal awards. Determining the period of reasonable notice is an art not a science. In each case trial judges must weigh and balance a catalogue of relevant factors. No two cases are identical; and, ordinarily, there is no one “right” figure for reasonable notice. Instead, most cases yield a range of reasonableness. Therefore, a trial judge’s determination of the period of reasonable notice is entitled to deference from an appellate court. An appeal court is not justified in interfering unless the figure arrived at by the trial judge is outside an acceptable range or unless, in arriving at the figure, the trial judge erred in principle or made an unreasonable finding of fact. If the trial judge erred in principle, an appellate court may substitute its own figure. But it should do so sparingly if the trial judge’s award is within an acceptable range despite the error in principle. [Emphasis added.]
[11] In this case, counsel attempted to present the case at trial as expeditiously and cost-effectively as possible, and both counsel agreed before this court that a new trial should be avoided if possible. We agree. In our view, and following Minott, the best approach is for this court to show deference to the trial judge while removing the effect of his error in law, by awarding the amount the trial judge would have awarded without adding anything for Wallace damages.
[12] Although the trial judge did not state what amount he attributed to Wallace damages, it is apparent that applying the Bardol factors, the trial judge had determined that the appellant merited an award at the high end of the appropriate range, taking into account manner and terms of hiring, his age, length of service, character of his employment and the overall job marketplace that was available for someone of his experience, training and qualifications. In that context, we can infer that the amount the trial judge added to the notice period for Wallace damages was not a significant component of the award, and would have been in the order of one month of salary in lieu of notice.
[13] We would therefore set aside the judgment of 10 months salary in lieu of notice and substitute an award of 9 months salary in lieu of notice minus the amount already paid.
[14] Counsel advised that they had agreed on the quantum of costs of the appeal, but asked us for an opportunity to address the issue of the payment of costs following release of these reasons. Counsel are to provide brief written submissions within 7 days of release of these reasons.
Signed: “S. T. Goudge J.A.”
“K. Feldman J.A.”
“Paul Rouleau J.A.”
RELEASED: “KF” October 9, 2008