Date:
20030328
Docket:
S025407
Registry:
Vancouver
IN
THE SUPREME COURT OF BRITISH COLUMBIA
Between:
Earl
Robert Moody
Plaintiff
And
Telus
Communications Inc.
Defendant
Reasons
for Judgment
of
the
The Honourable Mr. Justice Cullen
|
Counsel
for the Plaintiff:
|
R.H.
Hamilton, Q.C.
|
|
Counsel
for the Defendant
|
T.
Sigurdson
|
|
Date
and Place of Trial:
|
February
4 & 5, 2003
|
|
|
Vancouver,
B.C.
|
BACKGROUND
[1]
The
plaintiff, Earl Robert Moody ("Moody"), was employed by the
defendant Telus Communications Inc. ("Telus"), until June
21, 2002 when his employment was terminated by a letter dated June 18,
2002. Moody's employment was terminated as a result of
reorganization and "downsizing" by Telus. There is no
suggestion of dismissal for cause and in lieu of notice he was offered
an amount representing 18 months salary and benefits. He was
given information concerning his severance conditions and a release
which he has not signed. The letter of termination and
accompanying offer of severance options read as follows:
...
Dear
Bob:
It
is with regret that we inform you that your employment with TELUS
Corporation is terminated effective June 21, 2002.
We
would encourage you to take advantage of the Career Transition
program. This program is available to assist you in pursuit of
alternate options for the future. Enclosed for your review is a
package of information on the Career Transition Centre (CTC) services
and facilities. The CTC is open 8 am to 4 pm, Monday through
Friday. Please call 604-893-3777 for further information.
Attached
is a statement of your severance conditions, benefit options, and
Release of All Claims. Please review these carefully over the
next few days, sign the forms where indicated, and return them to
Sharon Lyder, TELUS, Career Transition Centre, 3 - 1795 Willingdon,
Burnaby, BC, V5C 5J2, by July 3, 2002.
We
thank you for your past service and wish you the best in the future.
Yours
truly,
Andy
Brauer
Product Manager
...
Severance
Conditions for Earl Moody
All
claims arising out of your termination from TELUS Corporation on June
21, 2002 are settled upon the following terms:
1.
Compensation in Lieu of Notice
In
lieu of statutory and common law termination notice, you will
receive a lump sum payment of $127,900 (see Payment Options
below).
2.
Payment Options
Your
options for receipt of these funds are as follows:
a.
Cash payment; $127,900 (less Income Tax Deduction @ 30% and any
other applicable deductions). For tax reasons, you may wish
to split your severance amount into two payments.
b.
It is our understanding that you can transfer up to $42,000 of
your lump sum payment to a Registered Retirement Savings Plan (RRSP).
Transferring these funds to an RRSP will defer income tax that
would otherwise be assessed on this portion of your severance
payment. If you would like to take advantage of this option,
please complete and return the attached TD2 Tax Form.
Please
complete the enclosed Employment Transition Cash Payment sheet
outlining the options you have chosen.
3.
Variable Pay
You
will be eligible for prorated Variable Pay in accordance with the
Variable Pay Plan. This will be determined according to your
target award rate and the applicable component factors.
4.
Payroll Reconciliation
All
amounts owing to you in respect of your employment up to and
including June 21, 2002 will be forwarded to you. An amount
equivalent to any vacation entitlement accrued to June 21, 2002
will be paid to you less any statutory deductions.
5.
Benefits and Pensions
Any
coverage under the provincial health plan will cease on September
30, 2002. Any coverage under Dental Plan or Extended Health
Plan will cease on September 21, 2002.
You
may convert some of your employee life insurance to an individual
policy in your name by July 21, 2002 without providing medical
evidence of insurability.
Any
unused Life Balance Account credits, including personal well-being
days, are forfeited effective June 21, 2002.
With
respect to your Health Care Spending Account (HCSA), expenses
incurred on or prior to June 21, 2002 can be reimbursed with your
HCSA credits. Submission deadline for reimbursement is March
31, 2003.
Your
coverage under all other benefit plans will end on June 21, 2002.
Your concession telephone will continue.
TELUS
Corporation retains the right to alter the Benefits Plans from
time to time and at any time at its sole discretion. Any
such alterations will apply generally to all TELUS employees
participating in the plans.
You
may call the Pension Department regarding your pension eligibility
and entitlements.
6.
Stock Options
Any vested Team TELUS Options must be exercised within 90 days of June
21, 2002. Unvested options will immediately expire.
7.
Company Property
As is company policy, please make arrangements to return your security
pass and other company materials in your possession to your manager by
June 21, 2002.
8.
Confidentiality of Intellectual Property
All details of TELUS Corporation operations and its employees are
proprietary and highly confidential. You agree not to disclose
or use any such proprietary or confidential information.
9.
Confidentiality Agreement
You agree to keep the terms of this offer confidential and not
disclose them to anyone other than your spouse, your legal
representative or financial counsellor. Any breach of this
condition may result in the offer being withdrawn.
10.
Placement Counselling
The services of the Career Transition Centre will be available to you.
Please call 604-893-3777 for further information.
11.
Release
These arrangements are strictly confidential upon you executing the
attached Release of All Claims.
The
foregoing arrangements shall be binding upon you and your heirs,
executors and administrators, and upon TELUS Corporation and its
successors and assigns. These arrangements are open for
acceptance by you until 4:00 p.m., July 3, 2002. If the
foregoing accurately sets out your understanding of the arrangements
between you and TELUS, please indicate your agreement and acceptance
by signing below where indicated and return it to Sharon Lyder, TELUS,
Career Transition Centre, 3 - 1795 Willingdon, Burnaby, BC, V5C 5J2.
Please also enclose the executed Release of All Claims.
Should
you have any questions, please direct them to Sharon Lyder at
604-893-3770.
The
foregoing is agreed to and accepted this ______ day of ______________,
________,
(month)(year)
_______________________________
Earl
Moody
[2]
At
the time of his termination, Moody was 51 years old and held the
position of Product Manager for Telus' 911 emergency program.
His base salary was $68,204 per annum. He had limited spending
authority, up to $25,000, no direct supervisory responsibilities and
no hiring or firing responsibilities. He had worked as a regular
full-time employee since May 31, 1976.
[3]
In
the fall before he was terminated, Moody had been diagnosed with
bladder cancer. He testified that he successfully completed a
course of treatment several weeks before his termination but was told
by his doctors that the cancer could recur and he is required to
"watch carefully" for the next 10 years. He testified
that his supervisors were aware of his cancer and treatments although
he only missed seven days of work during the course of his treatments.
[4]
Before
becoming a regular full-time employee Moody had worked in temporary
positions with Telus, formerly BC Tel, as follows:
1. April 27, 1970 - August 28, 1970 as a summer
student.
2. April 21, 1971 - August 27, 1971 as a summer
student.
3. April 26, 1972 - September 1, 1972 as a summer
student;
4. May 2, 1973 - September 7, 1973 as a summer
student.
5. September 12, 1973 - December 14, 1974 as a
temporary apprentice.
The
periods of summer employment were during Moody's attendance at the
University of British Columbia where he received a Bachelor of
Commerce degree in 1973.
[5]
As
mentioned, after leaving what was then BC Tel in December of 1974 for
a period during which he tried his hand at accounting, Moody returned
to the employ of the defendant on May 31, 1976 and remained with the
company from then until his termination.
[6]
In
his case, the plaintiff put in evidence as Exhibit 6 a report from
Telus dated 2001 and entitled "Corporate Social Responsibility
Report". The plaintiff also put in evidence in
advertisement placed in the Vancouver Sun newspaper in 1977 by the
predecessor of the defendant, BC Tel Ltd.
[7]
The
Corporate Social Responsibility Report evidently endorsed by Telus'
President and CEO included some statements attesting to the value
which the defendant placed on its employees and expressing a view of
their importance in the corporate enterprise and, as well, identifying
the conditions which drew acclaim to Telus for creating a working
environment hospitable to its employees.
[8]
The
1977 newspaper advertisement was directed at the defendant's
bargaining unit employees and constituted a promise of job security in
the context of concerns about technological change. The
advertisement named all the bargaining unit employees which it
addressed its assurances to. The named employees included the
plaintiff.
[9]
The
issues which arise in this case relate to the sufficiency of the
length of notice given to the plaintiff, whether he is entitled to
vacation accruing during whatever notice period is reasonable, and
whether his three periods of summer student employment in the summers
of 1970, 1971 and 1972 count as part of his Term of Employment used to
determine if he will meet his service requirement for pension
entitlement purposes during the currency of his notice period.
[10]
Following
his termination, Moody determined that he was able to receive whatever
amount was owing to him in lieu of notice as a "salary
continuance". The effect of receiving a salary continuance
rather than a lump sum settlement in lieu of notice permitted Moody to
maintain his benefits, which included membership in and accrual of
benefits under the BC Tel Pension Plan for Management and Exempt
Employees (the "plan"). It was and is Moody's position
that by remaining a member of the plan during the period of salary
continuance he would achieve a 30 year "milestone" in terms
of his years of service with Telus which would entitle him to
unreduced pension benefits. A determination whether his previous
periods of temporary employment with Telus in 1970, 1971 and 1972 can
be used in calculating his length of service for purposes of the plan
is integral to that position, which he advances on this law suit.
[11]
Moody
had discussions with Telus representatives throughout the summer of
2002 concerning his claimed entitlement to have his previous periods
of summer employment included as part of his Term of Employment for
purposes of calculating his pension entitlement. By letter dated
August 2, 2002, Moody was informed by Telus that his period of service
from May 2, 1973 to September 7, 1973 was eligible for inclusion in
his Term of Employment, but the earlier periods in 1970, 1971 and 1972
were not. Thus, in conjunction with his service as a temporary
apprentice from September 12, 1973 to December 14, 1974 which had
earlier been credited to his Term of Employment, Moody's seniority
date was adjusted to October 23, 1974, giving him 27 years, 8 months
of service as of his termination. With the 18 months salary
continuance, but absent the previous temporary employment in 1970,
1971 and 1972 Moody's term of employment would amount to 29 years 2
months, 10 months short of his 30 year milestone.
[12]
The
proposed severance conditions provided to Moody with the letter of
termination dated June 18, 2002 were not accepted by him and as a
result Telus wrote Moody on August 26, 2002 setting out the terms of
its offer of salary continuance. The letter reads as follows:
Dear
Bob:
As
acceptance of the proposed severance conditions dated June 18, 2002
has expired and it appears that this matter will likely not be
resolved for some time, we advise that commencing June 22, 2002 you
will receive salary continuance until December 21, 2003:
The
terms of our offer of salary continuance are as follows:
1.
Compensation in Lieu of Notice
In lieu of statutory and common law notice, you will receive salary
continuance starting on June 22, 2002 and continuing until December
21, 2003. During this period you will not be required to report
to work, but will continue to receive your current salary and
benefits, and pension accrual. You will receive a retroactive
payment for the period from June 22, 2002 to date. You will not
be eligible for vacation accrual, Life Balance Account, and short and
long term disability. You will be expected to make reasonable
efforts to find alternate employment. If you find new employment
or self employment prior to December 21, 2003; the salary continuance,
benefits and pension accrual will cease and you will have the option
of accepting either a payout of 50% of the balance of the salary owing
at that time or, receiving a lumpsum amount equal to the difference
between the compensation in your new employment or self-employment and
your TELUS salary for the balance of the 18 month period.
2.
Variable Pay
Variable Pay to June 21, 2002 has been reconciled in accordance with
the Variable Pay Plan. Salary continuance will not include an
amount for variable pay.
3.
Payroll Reconciliation
As you are not attending work, your entitlement to vacation accrual
ended June 21, 2002. Vacation and personal well-being
entitlements up to June 21, 2002 have been reconciled.
4.
Benefits and Pensions
Unless terminated earlier, any coverage under the Provincial Health
Plan, Dental Plan or Extended Health Plan will cease on December 31,
2003.
You may convert some of your employee life insurance to an individual
policy in your name without providing medical evidence of insurability
and must do so within 30 days of the date the benefits coverage
ceases.
With respect to your Health Care Spending Account (HCSA), expenses
incurred during the salary continuance period can be reimbursed with
your HCSA credits. Submission deadline for reimbursement is
March 31, of the year following the year in which the expense
occurred.
Your concession telephone will continue.
As with other employees, entitlements to benefits will be determined
by the terms and conditions of the plan in place, which TELUS retains
the right to alter from time to time and at any time at its sole
discretion. Any such alterations will apply generally to all
TELUS employees participating in the plans.
As indicated above, pension contributions and accrual will continue.
You may call the Pension Department regarding your pension eligibility
and entitlements.
5.
Stock Options
Team TELUS Options granted to date will vest if and as scheduled
during your continuance, and the exercise period will expire 90 days
after the end of your continuance.
6.
Confidentiality of Intellectual Property
All details of TELUS Corporation operations and its employees are
proprietary and highly confidential. You agree not to disclose
or use any such proprietary or confidential information.
7.
Non-Competition Covenant
Because you will be receiving active employee benefits during the
salary continuance period, you agree that you will not, for the salary
continuance period, without our prior written consent, in any
capacity, either individually, in partnership or in conjunction with
any persons, firms, association, syndicate or corporation as
principal, agent, major shareholder, advisor, employee or in any other
manner whatsoever, carry on or be engaged in any telecommunications
related business that is competitive with a business carried on by
TELUS Corporation or by any of its affiliates within Western Canada.
8.
Confidentiality Agreement
You agree to keep the terms of this offer confidential and not
disclose them to anyone other than your spouse, your legal
representative or financial counsellor.
9.
Placement Counselling
The services of the Career Transition Centre will continue to be
available to you. Please call 604-893-3777 for further
information.
Should
you have any questions, please direct them to me at 604-893-3770.
Yours
truly,
Sharon
Lyder
Transition Centre Consultant
THE
NOTICE PERIOD
[13]
It
is the plaintiff's position that in all the prevailing circumstances
the appropriate period of notice serving as the measure of his
damages, or the length of his salary continuance, is "24 months,
or such greater period as is required to take (him) to the unreduced
pension at 30 years' service".
[14]
The
plaintiff relies on the factors established in Bardal v. Globe
and Mail Ltd. (1960), 24 D.L.R. 140 (Ont. H.C.) to be
significant in assessing "what is reasonable in particular
classes of cases"; in particular "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 qualification of the servant" (p.
145, per McRuer C.J.H.C.).
[15]
Counsel
for the plaintiff referred to Ansari v. B.C. Hydro and Power
Authority (1986) 2 B.C.L.R. (2d) 33 (B.C.S.C.) in which
McEachern, C.J.S.C. (as he then was) identified a rough upper limit of
18-24 months, subject to exceptional cases "where the degree of
responsibility, age and years of service (are) very extensive"
(p. 42). In Ansari, McEachern C.J.S.C. explained
the rationale for a cap in the following terms at p. 42:
In other words, the law seems to place a cap of reasonableness upon
the notice period and does not compensate a discharged employee to
retirement age, whatever that may be, even if there is no likelihood
of alternative equivalent employment. I believe this is because:
a)
such a law would amount to a guarantee of lifetime income;
b)
it would fix the employer with all responsibility for the lack of
employment opportunities; and
c)
the law presumes that no employer would accept such an onerous
responsibility at the time of engagement.
[16]
The
plaintiff relied upon a number of reported decisions in which damages
in lieu of 24 months' notice had been awarded. The decisions
include:
1.
Bauer v. Unitel Communications Inc.,
[1994] B.C.J. No. 1230 (B.C.S.C.);
2.
Bell v. Izaak Walton Killam Hospital for Children,
[1986] N.S.J. No. 504 (N.S.S.C.-T.D.);
3.
Bishop v. Carleton Co-Operative Ltd.,
[1996] N.B.J. No. 171 (N.B.C.A.);
4.
Blackburn v. Victory Credit Union Ltd.,
[1997] N.S.J. No. 297 (N.S.S.C.);
5.
Chorny v. Freightliner of Canada Ltd.,
[1995] B.C.J. No. 51 (B.C.S.C.);
6. Dunbar v. Port Coquitlam (City)
[1992] B.C.J. No. 3050 (B.C.S.C.);
7.
Halliday v. Hanover Kitchens (Canada) Inc.
[1997] O.J. No. 4575 (O.C.J.-G.D.);
8.
Mitchell v. Westburne Supply Alberta, a division of
Westburne Industrial Enterprises Ltd., [2000] A.J. No.
246 (A.B.Q.B.);
9.
Paitich v. Clarke Institute of Psychiatry,
[1988] O.J. No. 198 (Ont. H.C.J.); affirmed,
[1990] O.J. No. 994 (Ont. C.A.);
10.
Petit v. Insurance Corp. of British Columbia,
[1995] B.C.J. No. 1521 (B.C.S.C.).
[17]
The
plaintiff also relied on Singh v. B.C. Hydro and Power Authority,
[2001] B.C.J. No. 2538 (C.A.) in support of his contention that in the
present case there are factors additional to those identified in Bardal,
supra, which weigh in favour of a longer period of notice than
that established by the rough upper limit in Ansari of
18-24 months.
[18]
In
particular, the plaintiff relies upon the evidence that Telus in
various publications over the years represented that its employees
could expect stability and job security. As well, the plaintiff
relies on the evidence that he was afflicted with cancer and although
in recovery when terminated, he nevertheless faces uncertain prospects
which can only impair his ability to find and maintain similar
employment.
[19]
The
defendant's position as to the amount of notice appropriate to the
circumstances rests on Bardal, supra, and Ansari.
Ms. Sigurdson submits the governing considerations are the character
of the employment, the length of service, the plaintiff's age and the
availability of similar employment having regard to the plaintiff's
experience, training and qualifications. The defendant
acknowledges that the plaintiff was a long term employee of from 26 to
28 years, 8 months depending on what prior service is included in the
term of employment for notice purposes. The defendant submits,
nevertheless, that the plaintiff's position was not one of senior
management, but rather was low to mid-management and that in all the
circumstances, the 18 period of notice was adequate given the rough
upper limit established in Ansari of 18-24 months.
Counsel for the defendant relied on a number of decisions involving
circumstances similar to the plaintiffs where the employees were
awarded notice periods of between 15 and 18 months. The
decisions included:
1.
Cooper v. MacMillan Bloedel Ltd.
(1991), 37 C.C.E.L. 205 (B.C.S.C.);
2.
Kennedy v. MTD Products Limited
(1991), 34 C.C.E.L. 31 (O.C.J. - G.D.);
3.
Allen v. Con-Force Structures Ltd.
(1992), 44 C.C.E.L. 289 (Sask. G.D.);
4.
Rivers v. Gulf Canada Ltd.,
(1986), 13 C.C.E.L. 131 (Ont. H.C.J.);
5.
Dixon v. Sears Canada Inc.
(1995), 10 C.C.E.L. (2d) 119 (B.C.S.C.);
6.
Cooper v. Sears Canada Inc.
(1991), 40 C.C.E.L. 225 (N.S.S.C. - T.D.);
7.
Johnstone v. Harlequin Enterprises Ltd.
(1991), 36 C.C.E.L. 30 (O.C.J. - G.D.);
8.
Bystrom v. Gescan Ltd.
(1991), 38 C.C.E.L. 228, (B.C.S.C.);
9.
Lacouvee v. McGavin Foods Ltd.
(1993), 47 C.C.E.L. 131 (B.C.S.C.);
10.
Girling v. Crown Cork & Seal Canada Inc.
(1994), 2 C.C.E.L. (2d) 115 (B.C.S.C.); affirmed,
(1995), 13 C.C.E.L. (2d) 261 (B.C.C.A.);
11.
Monk v. Coca-Cola Bottling Ltd.
(1996), 20 C.C.E.L. (2d) 280 (N.S.S.C.);
12.
Gauvin v. Coca-Cola Bottling Ltd.,
(1985), 35 C.C.E.L. (2d) 23 (Man. Q.B.);
13.
Zimmermann v. Calgary District Hospital Group
(1994), 9 C.C.E.L. (2d) 106, (A.B.Q.B.);
14.
Peet v. Babcock & Wilcox Industries Ltd.
(2001), 12 C.C.E.L. (3d) 5 (Ont. C.A.);
15.
Dumont v. The Corporation of the City of Vernon,
(2002) B.C.S.C. 1692.
[20]
I
have read the cases cited by the plaintiff and the defendant. It
seems to me, generally speaking, when faced with assessing the
circumstances of an employee similar to those of the plaintiff in
light of the Bardal factors, the authorities gravitate
towards a notice period of roughly 18 months. In that general
context it could not be said the "notice" given to the
plaintiff was unreasonable.
[21]
In
the cases cited by the plaintiff in which 24 months' notice was deemed
reasonable and in Singh v. B.C. Hydro, supra,
where 27 months was considered appropriate by the Court of Appeal,
some distinctive feature or features emerge as justification for the
longer period of notice. Thus in Bauer, supra,
the plaintiff's length of service (24 years) and degree of
responsibility (managing a staff of 63 and a budget of 8 million
dollars) when coupled with his limited education and the specialized
nature of his skills and his age (54), justified 24 months.
[22]
In
Bell, supra, the 54 year old plaintiff was
discharged for reasons that were "neither fair nor morally
right" from a position that carried significant responsibilities,
and in a context where her ability to acquire similar employment was
compromised.
[23]
In
Bishop, supra, the plaintiff was discharged while
on sick leave, suffering from stress and depression. The trial
judge found his disability would "normally have an effect on the
possibility of future employment in a full-time position".
In the result, 24 months was considered appropriate.
[24]
In
Blackburn, supra, the plaintiff was discharged
while on long term disability. He was ostensibly discharged for
cause as a result of "financial irregularities" which
occurred while he was suffering from a "severe clinical
depression" The court awarded 24 months, finding no
justification for his discharge.
[25]
In
Chorny, supra, the plaintiff occupied a position
of significant responsibility, was 56 years old, was "unlikely to
find comparable work and income" and was solicited to return to
the employ of the defendant from an earlier hiatus in circumstances
which "created an atmosphere of expected longevity".
The court awarded 24 months.
[26]
In
Dunbar, supra, among the factors considered by
the court was the fact that the employer's representative made adverse
comments concerning the plaintiff to the press which the court
concluded "were certainly detrimental to (the plaintiff's)
attempts to obtain similar employment …".
[27]
In
Halliday, supra, the combination of the
plaintiff's age (55), length of service (28 years) and "inability
to find employment in a field he had devoted his entire working life
to", justified 24 months.
[28]
In
Mitchell, supra, the conduct of the employer
impugning the plaintiff's ability to "adjust to changes" to
people with whom the plaintiff did business thereby compromising his
job prospects, was a factor considered by the court in awarding 24
months.
[29]
In
Petit, supra, factors conditioning the trial
judge's award of 24 months' notice included the plaintiff's age (56
years) a "groundless accusation of dishonesty" made by the
employer and the fact that the plaintiff's entire working experience
was in the insurance industry which the employer, ICBC, monopolized,
making the plaintiff's future job prospects in the industry in which
he had all of his experience, dim.
[30]
In
Singh, supra, the two factors which
dominated the Court of Appeal's consideration on the question of the
appropriate length of notice against a background of 18 years service
during which the plaintiff went from a janitor to the "lower
management position of mailroom supervisor", were fairly specific
representations made by the employer promising job security to its
employees and the fact that the plaintiff was terminated on his return
to work after a two month absence for medical reasons.
[31]
In
concluding that the circumstances justified a notice period of 27
months, the court made the following observations at ¶51-53:
In this case B.C. Hydro knew that Mr. Singh had been ill but was
making an effort to fulfill his duties to the company by returning to
work on a gradual basis. It was during that time of struggle for
Mr. Singh that the company chose to let him go.
I am of the view that these factors are significant in this case.
The respondent, through the memoranda I have outlined, fostered a
climate of job security in its workplace. By allaying the
employees' fears that they would lose their employment in troubled
times, B.C. Hydro could expect a happier and more productive
workforce. It was only just before the appellant's position was
terminated that the company memoranda ceased promising job security.
For his part, knowing that the company had a stated policy of
relocating its long-time employees in times of re-organization, Mr.
Singh would have had little motivation to find other employment.
The company provided an inducement to stay and weather the storm.
Further, the termination of Mr. Singh's position at a time when,
having suffered medical problems, he was attempting to return to work,
was obviously injurious to him.
In my view the circumstances of this case are exceptional. Mr.
Singh was repeatedly assured that his employment with B.C. Hydro was
secure. After a difficult illness he was making an effort to
fulfill his responsibilities to the company by returning to work on a
gradual basis when his position was abruptly terminated. In my
view these factors, along with those referred to by the trial judge,
entitle Mr. Singh to a notice period of 27 months.
[32]
It
seems to me that the common theme which runs through those cases
relied on by the plaintiff as establishing the reasonableness of a
notice period of 24 months or more where the Bardal
factors of character of employment, age, length of service, and
availability of similar employment otherwise augur in favour of the
rough upper limit, encompasses circumstances where the employee is put
in a particularly vulnerable position by the termination. That
vulnerability may be established where an employee has gone from a
role of great responsibility and recompense to none and will be
hard-pressed to find comparable employment because of the inherent
scarcity of such positions, or where an employee has gone from a
lesser position to none and because of circumstances affecting him or
her uniquely is put at a disadvantage beyond the norm in seeking
comparable employment.
[33]
While
it appears from Ansari, supra, that economic
considerations such as reduced business activities or opportunities
are not factors influencing the length of notice, other factors
limiting an employee's ability to right himself or herself after
termination such as age, illness, damage to reputation,
over-specialization, inducements to forego other job possibilities at
more opportune times, and the absence of comparable opportunities
outside of the terminating employer's business are appropriate
considerations in lengthening the notice period.
[34]
In
my opinion, when those factors are taken into account with regard to
the plaintiff, a notice period of 24 months is appropriate.
While the plaintiff does have a Bachelor of Commerce degree and has
acquired marketing experience with the defendant, it appears that his
technical expertise is with a product unique to the defendant.
Thus, both his specialization and the lack of comparable opportunities
outside the employ of the defendant work against him.
[35]
In
the case at bar, I am not satisfied that the publications of the
defendant relating to its employee relations ascend to the level, as
in Singh, supra, of being promises of job
security which would reasonably induce the plaintiff or others to
forego other opportunities in favour of remaining with the defendant.
The 1977 newspaper advertisement was directed at a very specific issue
not applicable to the plaintiff at the time of his termination.
The other publications are more general statements of the value which
the defendant places on its employees and could not be taken as
representations of job security into the future.
[36]
In
my opinion, the most significant factor bearing on the amount of
notice which the plaintiff is entitled to, is the issue of his health.
It is clear that he was terminated at a time when he just completed
treatments for cancer which despite his current state of recovery
remains an ongoing uncertainty not unlikely to affect his future
employment prospects. Unlike the plaintiff in Singh,
supra, the plaintiff in the present case was not returning to
work on a gradual basis. He was fully back at work having missed
only seven days, apparently against the advice of his doctors.
It is clear that the defendant's representatives were aware of the
plaintiff's health issue, but they did not appear to take it into
account in computing his notice period.
[37]
According
to the evidence of Carol Craig who is the Director of Pension Plan and
Design for the defendant and was the Director of the Employee Service
Centre, and who testified for the defendant, the maximum notice given,
except to Vice-Presidents of Telus, was 18 months. Vern Enright,
who testified on behalf of the plaintiff, indicated that he received
18 months salary continuance on the basis of factors similar to the
plaintiffs except, of course, that he did not have the same health
related issue.
[38]
In
my view, the notice given by the defendant fails to adequately account
for the particular position of vulnerability the plaintiff was left in
by the termination, given the uncertain state of his health, and its
effect on his ability to attract and maintain comparable employment.
While I do not find there was the same assurance given to the
plaintiff as to his job security here as there was to the plaintiff in
Singh, supra, I find resonance in the words of
Ryan J.A. in that case where she said at ¶53:
After
a difficult illness he was making an effort to fulfill his
responsibilities to the company ... when his particular position was
abruptly terminated.
[39]
In
my view, that factor taken in conjunction with the more conventional Bardal
factors establishes the plaintiff's situation as exceptional,
justifying notice at the higher end of the rough upper limit, that is,
24 months.
THE
PLAINTIFF'S ENTITLEMENT TO HOLIDAY TIME
[40]
The
plaintiff submits he is entitled to use the holiday time that he
accrued up to the time of his termination as bank time to add to his
term of employment for purposes of calculating his pension
entitlement, and as well, to vacation time which will be accrued
during the period of his salary continuance for the same purposes.
[41]
Insofar
as the holiday time accrued to the date of termination is concerned,
that arises as an issue because the defendant has paid to the
plaintiff an amount representing his salary for the 6 weeks of
vacation time which he was entitled to and had banked. During
the course of his discussions with the defendant over the course of
the summer of 2002, the plaintiff had asked on a number of different
occasions if he could reverse the payment for his banked holiday time
in order to use that holiday time as part of his term of employment so
as to increase his advance towards reaching the service requirement
for his pension benefits. No resolution of that issue had been
reached by the time of the trial.
[42]
It
seems to me that the plaintiff is entitled to treat the vacation
period he accrued at the time of termination as an extension of his
term of employment. It is clear that he has not accepted the
defendant's offer of severance terms and that although he received
payment in lieu of his banked vacation time, he did so before
considering the implications or having an opportunity to seek the
defendant's agreement to use his accrued vacation time to extend his
term of employment for pension plan purposes.
[43]
With
regard to the 12 weeks of vacation time which the plaintiff submits
accrues during the period of 24 months' salary continuance and to
which he asserts entitlement, the question is whether there is
evidence the plaintiff has paid out or lost money or otherwise
suffered by reason of the absence of the benefit. The principle
that the plaintiff must demonstrate some loss to justify an award of
damages for lost vacation time in circumstances where he or she is
being paid an amount in lieu of notice without a corresponding
obligation to show up and perform services for the employer emerges
from Scott v. Lillooet School District No. 29 (1991), 60
B.C.L.R. (2d) 273 (C.A.).
[44]
In
that case the court sat as a five member panel to consider the
correctness of Stauder v. B.C. Hydro and Power Authority
(1987), 25 B.C.L.R. (2d) 40 (B.C.C.A.) which ruled (Esson J.A.
dissenting) that a terminated employee is entitled to damages for lost
vacation even where he or she is under no obligation to show up and
perform services for the employer during the appropriate notice
period.
[45]
In
Scott, supra, the five member panel overruled Stauder,
supra, following the reasoning of Esson J.A. in dissent.
The court in Scott summarized the ensuing state of the
law at p. 280, as follows:
Vacation pay arises as a result of the contract of employment
providing for a period of time during the employment year when the
employee is not required to "work" but yet is entitled to
pay.
During the 15-month notice period awarded to the respondent, he was
free from any obligations to the appellant, either to go to work or to
expend any effort on its behalf.
In the case at bar, the respondent led no evidence of loss or expense
associated with lost vacation benefits nor did he lead any evidence
that he had suffered in any way as a result of his not being able to
take a meaningful holiday.
To award the respondent damages for vacation pay, on top of an award
of full salary for the period of notice to which he was entitled,
(which necessarily includes payment of his salary for any vacation he
may have taken had he worked during that notice period), is to provide
double indemnity, or put another way, to provide compensation for loss
that he has not suffered.
[46]
In
a subsequent decision, Bavaro v. North American Tea, Coffee
& Herb Trading Co. Inc. (2001), 86 B.C.L.R. (3d) 249
(C.A.) Donald J.A., after repeating the summary of the law respecting
vacation pay as set forth in Scott as above, addressed
the issue of the evidentiary burden of proving the loss. In so
doing he stated as follows, at pp. 255-256:
This different perspective does not contradict the ratio in Scott,
but it should have an effect on the evidentiary burden of proving the
loss. In my respectful view, the employee should not have to overcome
a presumption that the notice period contains a vacation within it
because, as I have said, the usual circumstances faced by the
terminated employee in the time between jobs do not support such a
presumption. Scott does not establish a complete bar to
recovery but, rather, bars recovery unless the employee can
demonstrate the lost opportunity to take a vacation.
Furthermore, it should be borne in mind that the notice period is only
a legal fiction used to measure damages. It does not purport to
replicate actual employment where the employee would be able to take a
vacation secure in the knowledge that he will return to his job and
continue earning income. During the notice period estimated by the
court in fixing damages there is no ongoing relationship with the
mutual contractual obligations of providing service for pay and hence
it seems, with respect, artificial to speak in terms of not having to
work during the notice period.
Finally, I think that the evidentiary burden on the employee in
proving the loss should reflect that the question arises in the
context of a termination without cause and in breach of an implied
term of a contract to give reasonable notice. On balance, the innocent
party should not be lumbered with a presumption
against recovery of vacation pay.
[47]
In
my view, the issue in the case at bar is somewhat different from what
was being dealt with in Scott, supra, and Bavaro,
supra. In those cases the plaintiffs were seeking
monetary damages for the absence of a benefit and the issue was
whether there was any ascertainable loss to engage the right to
damages. In both cases the focus of the court was on whether the
loss of a holiday while being paid but under no corresponding
obligation to perform services for the employer, in context, amounted
to the loss of a benefit justifying compensation.
[48]
In
the present case, the loss being asserted is not the loss of a
carefree holiday, rather it is the loss of the plaintiff's entitlement
to work through vacation time so as to "bank" or accrue the
time to extend his term of employment and thereby engage or seek to
engage pension entitlement or to lengthen the service by which the
amount of the benefit is determined.
[49]
That
such a course of action would have been open to the plaintiff is
evident from the interrogatories arising out of the examination for
discovery of the defendant's representative, Claude Kisteman on
December 19, 2002:
Q7.
Are there situations where people were kept on or used their vacation
or other such device to get them to a pension milestone, prior to
termination?
A7.
If using accrued vacation would bring a member to a pension milestone,
that option was commonly followed or offered.
[50]
In
the circumstances, it seems to me the defendant's failure to give the
plaintiff notice deprives him of the opportunity of extending his Term
of Employment by using vacation which would accrue during that notice
period. It is clear from the plaintiff's evidence he would have
accepted that option if he had been given it. In my view, that
loss is both real and ascertainable and engages the right to a remedy
whether under the authority of the principle in Scott, supra,
or Bavaro, supra.
OTHER
BENEFITS
[51]
While
an employee of Telus, the plaintiff was entitled to a number of
benefits which included variable pay, a bonus system expressed as a
percentage of his salary which amounted in practical terms to 12% or
$682 per month, a "plan it" payment of $100 per month, a
life balance account of $500 per annum plus three day's salary, health
care spending of $300 per annum, an employee stock purchase plan in
which Telus' contribution was $136 per month (or 2.4% of the base
salary) plus an additional $16 per month representing 2.4% of the
plaintiff's variable pay. In addition, the plaintiff claimed
damages for loss of a retirement gift valued at the rate of $20 per
year of service.
[52]
In
my opinion, the absence of these benefits represents an ascertainable
loss to the defendant during his notice period and are not contingent
on events which may or may not occur and as such are recoverable.
See Wood v. BBC Brown Boveri Canada Inc. (1986),15
C.C.E.L. 178 (B.C.C.A.); Young v. BC Hydro, 2002 B.C.S.C.
510.
[53]
The
amounts recoverable under the head of lost benefits are as follows:
|
BOB
MOODY'S LOSS CALCULATION
|
|
Benefit
|
Monthly
Amount
|
Amount
Unpaid at Termination
|
Amount
Claimed for June 21/02 to Feb 21/03 (8 months)
|
Amount
Claimed for 24 Months (16 additional months)
|
TOTALS
|
|
|
|
|
|
|
|
|
Variable
Pay (12%)
|
$
682
|
$
683 (2% for Jan 1-June 21/02)
|
$5,456
|
$10,912
|
$17,051.00
|
|
|
|
|
|
|
|
|
"Plan
It"
Payment
|
$
100
|
|
Paid
|
$1,600
|
$
1,600.00
|
|
|
|
|
|
|
|
|
Life
Balance Account
$500
per year + 3 days' pay)
|
$
143
|
|
Paid
to
Dec
31/02
$286
for Jan/Feb/03
|
$2,288
|
$
2,574.00
|
|
|
|
|
|
|
|
|
Health
Care Spending
($300 per year)
|
$
25
|
|
Paid
to Dec 31/02
$50
for Jan/Feb/03
|
$400
|
$
450.00
|
|
|
|
|
|
|
|
|
Employee
Stock Purchase Plan (Telus
Contributions)
|
$
136 (2.4% of base salary)
|
$248
(not paid on vacation pay at termination)
|
$434
|
$2,176
|
$
2,858.00
|
|
|
$16
(2.4% of variable pay)
|
$98
(amount not paid on variable pay at termination)
|
$128
|
$256
|
$
482.00
|
|
|
|
|
|
|
|
|
Retirement
Gift
|
$20
per year of service
|
$600
|
$600
|
$600
|
$
600.00
|
|
TOTAL:
$25,615.00
|
THE
PENSION ISSUE
[54]
I
now turn to the issue of whether the plaintiff's prior three periods
of temporary employment in 1970, 1971 and 1972 count as part of his
term of employment to determine his length of service for pension
entitlement purposes.
[55]
The
sections of the plan that are relevant to a consideration of this
issue are found in s. VI - Term of Employment, and s. VII - Retirement
Age and Service Requirements. Section VIII of the plan deals
with the amount and duration of the pension but none of its specific
provisions are relevant to a determination of the status of the
plaintiff's prior three periods of employment under the plan. It
is clear however from s. VIII that an employee's Term of Employment is
used in calculating his or her benefit amounts.
[56]
In
s. VI dealing with the Term of Employment, the particular provisions
relevant to the issue in the present case are found in paras. 1, 3,
and 5 which read as follows:
1.
"Term of Employment" means a period of continuous employment
as an Employee of the Company, which is deemed to include all service
with the Telecommunications Workers Union provided such Employee was
granted an approved leave of absence therefor by the Company, all
approved leaves of absence, all periods of disability absence, and all
temporary lay-offs of less than six months. Service with other
companies with which reciprocal agreements have been made for the
interchange of benefit obligations may also be included subject to the
terms of such reciprocal agreements.
3.
When the Company has re-employed a former Employee such re-employed
Employee shall be considered a new Employee for all purposes of the
Plan unless the effect of subsection 1 above is such that the
termination of employment does not break the continuous employment of
the Employee. Vested benefits, if any, earned during a prior
period of employment will not be affected in any way by the subsequent
period of employment and the Term of Employment during the period of
re-employment will not include any prior employment except that for
purposes of Section VII prior periods of prior employment shall be
included in the Term of Employment.
5.
Notwithstanding subsection 3 above, if the Company re-employed a
former Employee before 1988 and such Employee's Term of Employment
calculated from such last re-employment, has amounted to five years,
all previous periods of employment (with the exception of any short
periods of employment prior to 1 January 1973 which were prior to the
completion by the Employee of six months of continuous employment with
the Company) shall be added thereto and the aggregate shall be deemed
to be continuous employment, in accordance with the Company's policy
to bridge an Employee's previous periods of employment.
[57]
In
s. VII which deals with retirement age and service requirements, the
provisions relevant to the issue in the present case are found in
paras. 1, 4, and 6. They read as follows:
1.
The normal retirement date for a Member or Former Member is his
sixty-fifth birthday. A member may retire upon or after the
normal retirement date and receive a pension regardless of the length
of his Term of Employment. A Former Member who has not retired
and who is not an Employee will be retired upon his normal retirement
date and his pension will commence.
4.
A Member or Former Member who has attained the age of fifty-five years
and whose Term of Employment is twenty-five years or more, may retire
and will receive a pension.
6.
A Member or Former Member whose Term of Employment is thirty years or
more, may, with the consent of the Company, retire and be granted a
pension.
[58]
It
is the contention of the plaintiff that the salient effect of the
relevant provisions in ss. VI and VII of the plan is to create two
methods of determining the plaintiff's Term of Employment depending on
whether it is used for the purposes of s. VII in determining if the
plaintiff has met the service requirements entitling him to unreduced
pension, or for the purposes of s. VIII of calculating the amount of
pension benefits due to him. It is the plaintiff's contention
that for purposes of s. VII, all prior periods of employment
regardless of their duration or when they occurred are applicable in
assessing the Term of Employment, whereas for the purposes of s. VIII,
there is a limitation on the use of prior periods of employment in
determining the Term of Employment depending on the length of the
prior period of employment and when it occurred.
[59]
It
is the defendant's contention on the other hand that there is no
distinction to be drawn in determining the Term of Employment whether
for purposes of s. VII or s. VIII and that the relevant provisions in,
particularly, s. VI do not justify any such distinction.
[60]
The
fulcrum of the debate can be found in para. 3 of s. VI.
According to the plaintiff, the words "for purposes of s. VII
prior periods of prior employment shall be included in the Term of
Employment" means that in establishing whether an employee has
met the service requirement for pension entitlement, prior employment
with the employer need not be continuous, within the meaning of s. VI,
para. 1, or meet any other criteria.
[61]
It
is the defendant's contention, on the other hand, that the words
relied on by the plaintiff when read in their full context do not deal
with any and all periods of prior employment, but only those periods
in which the employee obtained a vested benefit. Counsel for the
defendant put it thus in her written argument:
Section
VI, para. 3 makes it clear that in circumstances of re-employment,
prior time is not included in the Term of Employment unless re-hiring
does not break continuous service. The periods of summer service
did not constitute continuous service. Section VI,3 provides a
further exception. If an employee had a vested benefit from a
prior period of employment, that benefit would not be affected by
reemployment, except that the additional service would be included in
the Term of Employment. That exception does not apply here, as
the Plaintiff had not acquired any vested benefits from prior periods
of employment.
[62]
It
is the defendant's submission that the provision which governs prior
periods of employment in which no vested benefits were acquired, and
hence applies to the plaintiff's circumstances, is found in s. VI,
para. 5. According to the defendant, the effect of that
provision is to make prior periods of employment of six months or
longer and shorter subsequent periods, if any, occurring before
January 1, 1973 and any prior periods of employment occurring after
January 1, 1973, part of an employee's Term of Employment for all
purposes of the plan. The only prior periods of employment not
included in an employee's Term of Employment for all purposes of the
plan by s. VI, para. 5 are those less than six months if not preceded
by a six month period of prior employment occurring prior to January
1, 1973. That is why, according to the defendant's submissions,
the plaintiff's periods of summer employment in 1970, 1971 and 1972,
each being four months in duration, more or less, and not preceded by
any other period of employment, do not qualify for inclusion in the
plaintiff's Term of Employment.
[63]
In
my opinion, the defendant's position cannot be sustained on a careful
reading of s. VI, para. 3 and para. 5 and on consideration of the
context they create. As I understand it, the defendant's
submission is, in effect, that s. VI, para. 3 creates an exception to
the general rule that a re-employed former employee is to be
considered a new employee for all purposes of the plan, but the
exception is contingent on the employee having earned vested benefits
during his or her prior period of employment. (Under s. XIII, para. 1
the requirement for vesting is established when a member has been a
member of the plan or bargaining unit plan "continuously during
the 24 month period ending upon the date his membership in the plan
ceases").
[64]
In
the defendant's submission, therefore, s. VI, para. 3 does not apply
to the plaintiff's situation because the prior periods of employment
he is seeking to have included in his Term of Employment are not ones
in which he earned any vested benefits.
[65]
As
I read s. VI, para. 3, however, it applies to all prior periods of
employment, not just ones where vested benefits were earned. In
asserting that "vested benefits, if any, earned during a
prior period of employment will not be affected by the subsequent
period of employment ..." (emphasis added), the provision does
not confine itself as submitted by the defendant. If the scope
of s. VI, para. 3 were to be constricted to prior periods of
employment during which vested interests were earned, the words
"if any" would be pointless. In my opinion, the words
"if any" only have meaning if the "prior
employment" or "prior periods of employment"
encompassed by the provision relate to any periods, including
ones in which vested benefits are earned, and ones in which they are
not. That interpretation is supported by the balance of the
provision which reads "... and the Term of Employment during a
period of re-employment will not include any prior employment
except that for purposes of s. VII prior periods of prior employment
shall be included in the Term of Employment" (emphasis added).
[66]
In
my opinion the reference to "any prior employment" means
just that, and emphasizes that prior employment in which vested
benefits were earned is but one subset of the prior periods of
employment with which the section is concerned.
[67]
It
follows, therefore, that one of the effects of s. VI, para. 3 is to
expand the definition of Term of Employment for the purposes of
determining service requirements under s. VII to include any prior
periods of prior employment.
[68]
The
next issue is whether the effect of s. VI, para. 3 is modified by the
provisions of s. VI, para. 5 which address how the company's policy to
"bridge" an employee's previous periods of employment
affects re-employed former employees.
[69]
It
is the plaintiff's submission that s. VI, para. 5 does not apply to a
determination of whether he will meet the service requirements during
his period of salary continuance - that issue is resolved by s. VI,
para. 3. In the plaintiff's submission, s. VI, para. 5 governs
the effect of previous periods of employment on the Term of Employment
insofar as it is used in calculating the amount of pension payable
under s. VIII of the plan.
[70]
The
defendant's position, as earlier noted, is that s. VI, para. 5 is the
provision that specifically applies to the plaintiff insofar as his
periods of employment prior to January 1, 1973 are concerned and hence
governs whether the periods of temporary employment in 1970, 1971 and
1972 can be used as part of his Term of Employment in calculating when
his service requirements for pension benefits are met.
[71]
As
I see it, the question is whether the specific provision in s. VI,
para. 3 excluding any periods of prior employment from the Term of
Employment except for purposes of s. VII (i.e. in calculating the
service requirement), is subject in its entirety to s. VI, para. 5 or
whether only that portion of it that excludes periods of prior
employment from the Term of Employment for all other purposes is
affected. In other words, does s. VI, para. 5 modify only the
general rule in s. VI, para. 3 - that the Term of Employment during
re-employment will not include any prior employment, or does it, as
well, modify the exception to the general rule - that any prior period
of employment will be included in the Term of Employment only for
purposes of determining the service requirement under s. VII.
[72]
In
my opinion, s. VI, para. 5 must be construed as modifying only the
general rule in s. VI, para. 3 because any other construction would
render the limited exception created in s. VI, para. 3 nugatory.
If the effect of s. VI, para. 5 was to define exhaustively all
categories of prior employment to be included in the Term of
Employment for all purposes of the plan, then there is no point in
having a provision which identifies a limited purpose for which any
prior employment is included in the Term of Employment. Section
VI, para. 3 only makes sense if the exception it creates - any prior
employment included in the Term of Employment only for purposes of s.
VII - refers to those periods not so included by virtue of s. VI, para.
5; in particular, the pre-January 1, 1973 periods of employments under
six months in duration, not preceded by a prior period of employment
of six months or more in duration.
[73]
It
is clear from reading the plan as a whole that in different contexts
and for different purposes the phrase "Term of Employment"
has different meanings. In s. XIV, for example, the Term of
Employment for an employee transferring to the bargaining unit is
determined differently depending on whether the objective is to
establish if the vesting requirements of s. XIII, para. 1 or the
service requirements of s. VII have been satisfied, on the one hand,
or for calculating benefit amounts in s. VIII, on the other.
[74]
Similarly,
in s. IV, para. 7 a period of employment while the employee is a
member of the Defined Contribution Plan can be included in his or her
Term of Employment under this plan, but only for limited purposes.
In that context the period of membership in the Defined Contribution
Plan is excluded from his or her Term of Employment for purposes of
calculating benefit amounts pursuant to s. VIII, but not for other
purposes.
[75]
In
my view, those distinctions drawn between the different purposes for
which discrete periods of employment can be included in an employee's
Term of Employment are harmonious with the distinction drawn in s. VI,
para. 3 and VI, para. 5. Thus, I conclude that for purposes of
determining under s. VII whether the plaintiff's service requirements
for pension benefits have been or will be met during his period of
salary continuance, his previous periods of employment, specifically
April 27, 1970 -August 28, 1970, April 21, 1971 - August 27, 1971, and
April 26, 1972 - September 1, 1972, must be included in his Term of
Employment.
[76]
The
final issue to be dealt with relates to the nature of the order, if
any, to be made in connection with the plaintiff's entitlement to
pension benefits.
[77]
According
to s. VII, para. 6, the plaintiff upon achieving a 30 year Term of
Employment can retire and be granted a pension. Entitlement to
the pension benefits is, however, contingent on the consent of Telus.
There is evidence before me that the other employees who were
terminated by Telus and who reached a pension "milestone"
during the course of their salary continuance were granted entitlement
to pension benefits with the consent of the company. It appears
that in those cases the company's consent was granted prospectively.
[78]
As
I understand it, it is on that basis that the plaintiff submits that
his damages ought to include the present value of his pension benefits
on the footing that he, like others terminated from Telus, would
receive the company's consent when, having reached the 30 year
milestone he, elects to retire and take his pension.
[79]
In
my opinion, despite the contingent nature of the plaintiff's
entitlement to his pension benefits in reaching his "pension
milestone" of 30 years, it is open for the court to make an award
of damages for the present value of those benefits as of his 30 year
term of employment. The evidence before me is that other
terminated employees who reached a pension milestone during a period
of salary continuance were granted the necessary consent
prospectively. There was no evidence that the defendant withheld
its consent from any terminated employee in those circumstances, and
although Ms. Craig in her evidence emphasized that each case would be
reviewed according to the extant circumstances, I am satisfied it is
more probable than not that had the defendant known the plaintiff
would reach his 30 year milestone during the period of salary
continuance it would have, prospectively, granted him its consent to
take his pension benefits.
[80]
As
I understand it the parties have agreed that it is unnecessary to
quantify the amount owing to the plaintiff under this head as, by
consent, the amount will be determined by an actuary, or,
alternatively, it will be paid in the form of pension benefits.
[81]
Should
there be any difficulty the parties have liberty to apply.
[82]
The
plaintiff is entitled to his costs.
“A.F.
Cullen, J.”
The Honourable Mr. Justice A.F. Cullen
