Regular readers may recall that in May 2001 we reported on the case of Barakett v. Lévesque Beaubien Geoffrion Inc. (CELT issue 342, page 2662). Mr. Barakett, a preferred share specialist in an investment brokerage firm, was terminated from his employment following the merger of Lévesque Beaubien Geoffrion with First Marathon.
The employer admitted that it did not have just cause to terminate Mr. Barakett without notice; therefore the issue at trial was whether four months’ pay in lieu of notice was adequate.
Mr. Barakett was a hard worker and dedicated employee who substantially increased the working capital of the firm. He was paid only by commission, and by 1997 he was earning $458,000. He had been considered in 1998 for a promotion to vice-president. The nature of his work was highly specialized. There were only eight or nine preferred share specialists in Canada.
The Supreme Court of Nova Scotia held that the manner of dismissal was callous and high-handed and, taking into account the above-noted factors, concluded that reasonable notice should have been 17 months.
The employer appealed the trial judge’s finding to the Nova Scotia Court of Appeal. It argued that the trial judge had erred by:
• finding the employer’s conduct in relation to the dismissal was an aggravating factor;
• applying the decision of Wallace v. United Grain Growers Limited;
• finding in the absence of evidence that the manner of dismissal, the existence of the lawsuit and the failure to provide a reference letter impacted on Mr. Barakett’s ability to find alternative employment;
• finding that Mr. Barakett was entitled to an unreasonably long notice period; and
• finding that there was no failure on the part of Mr. Barakett to mitigate his damages.
The employer argued that the trial judge should not have considered the implications of the Wallace decision because neither the case nor allegations of bad faith and unfair dealings were pleaded or argued.
Mr. Barakett argued that this should not have been a surprise because the discovery and evidence at trial clearly indicated that the manner of dismissal was in issue.
The Court held that, although the pleadings were not unduly informative, they clearly framed the action as one for wrongful dismissal requiring consideration of all factors included in such a claim including the factors raised in Wallace. If the employer had any real doubt as to the nature of the case that it was required to defend, it could have made a demand for particulars in accordance with the rules of civil procedure.
With respect to the lack of reference letter, the Court found that Mr. Barakett was deserving of a favourable reference letter, and he was promised one. There was evidence to support the finding that this impacted on Mr. Barakett’s ability to find alternative employment.
The employer argued that the failure to provide the letter was one of mere inadvertence or omission on its part and not an act of bad faith or unfair dealing. The Court rejected this argument, finding that the failure to provide the reference letter showed the employer’s indifference to Mr. Barakett’s circumstances.
With respect to the length of notice period awarded, the Court was of the view that the trial judge had appropriately considered all factors in determining reasonable notice. The 17-month notice period awarded was within the range considered by the courts in such circumstances. The award was not unreasonable and the trial judge had sufficient evidence before it to justify an award of 17 months.
Therefore, the Court dismissed the appeal in its entirety.
For more information:
• Barakett v. Lévesque Beaubien Geoffrion Inc., 2001 NSCA 157.
The employer admitted that it did not have just cause to terminate Mr. Barakett without notice; therefore the issue at trial was whether four months’ pay in lieu of notice was adequate.
Mr. Barakett was a hard worker and dedicated employee who substantially increased the working capital of the firm. He was paid only by commission, and by 1997 he was earning $458,000. He had been considered in 1998 for a promotion to vice-president. The nature of his work was highly specialized. There were only eight or nine preferred share specialists in Canada.
The Supreme Court of Nova Scotia held that the manner of dismissal was callous and high-handed and, taking into account the above-noted factors, concluded that reasonable notice should have been 17 months.
The employer appealed the trial judge’s finding to the Nova Scotia Court of Appeal. It argued that the trial judge had erred by:
• finding the employer’s conduct in relation to the dismissal was an aggravating factor;
• applying the decision of Wallace v. United Grain Growers Limited;
• finding in the absence of evidence that the manner of dismissal, the existence of the lawsuit and the failure to provide a reference letter impacted on Mr. Barakett’s ability to find alternative employment;
• finding that Mr. Barakett was entitled to an unreasonably long notice period; and
• finding that there was no failure on the part of Mr. Barakett to mitigate his damages.
The employer argued that the trial judge should not have considered the implications of the Wallace decision because neither the case nor allegations of bad faith and unfair dealings were pleaded or argued.
Mr. Barakett argued that this should not have been a surprise because the discovery and evidence at trial clearly indicated that the manner of dismissal was in issue.
The Court held that, although the pleadings were not unduly informative, they clearly framed the action as one for wrongful dismissal requiring consideration of all factors included in such a claim including the factors raised in Wallace. If the employer had any real doubt as to the nature of the case that it was required to defend, it could have made a demand for particulars in accordance with the rules of civil procedure.
With respect to the lack of reference letter, the Court found that Mr. Barakett was deserving of a favourable reference letter, and he was promised one. There was evidence to support the finding that this impacted on Mr. Barakett’s ability to find alternative employment.
The employer argued that the failure to provide the letter was one of mere inadvertence or omission on its part and not an act of bad faith or unfair dealing. The Court rejected this argument, finding that the failure to provide the reference letter showed the employer’s indifference to Mr. Barakett’s circumstances.
With respect to the length of notice period awarded, the Court was of the view that the trial judge had appropriately considered all factors in determining reasonable notice. The 17-month notice period awarded was within the range considered by the courts in such circumstances. The award was not unreasonable and the trial judge had sufficient evidence before it to justify an award of 17 months.
Therefore, the Court dismissed the appeal in its entirety.
For more information:
• Barakett v. Lévesque Beaubien Geoffrion Inc., 2001 NSCA 157.
