[1]         The plaintiff, Terence Hogan seeks judgment for wrongful dismissal on this summary trial. The plaintiff asserts his employment with the defendant was terminated without just cause and without a reasonable period of notice. The plaintiff takes the position that the reasonable notice period is 21 to 22 months. The plaintiff says that since his termination he has sought employment but remains unemployed as of the date of the trial. The plaintiff submits that the issues raised in this action are suitable for adjudication by way of summary trial.

[2]         The defendant says the plaintiff was one of a number of employees whose employment was ended by the defendant due to the impact of the Covid-19 pandemic. The defendant concedes that the plaintiff’s employment was terminated on a without cause basis. The defendant takes the position that the reasonable notice period for the plaintiff is in the range of 15 to18 months. However, the defendant submits the plaintiff has failed to take reasonable steps to mitigate his damages, and his entitlement to reasonable notice should end March 31, 2021, the date he could have commenced other employment. The defendant agrees the issues raised are suitable for determination by summary trial.

[3]         The issues raised by the pleadings and submissions are:

[4]         The plaintiff resides in Vancouver, B.C. with his wife and twin daughters. He is 53 years old. The plaintiff’s children are nine years old and have significant health issues. As a result the plaintiff is required to spend extra time with them, and cannot take a job that requires him to relocate or spend a significant amount of time away from home.

[5]         The plaintiff completed an apprenticeship program in the United Kingdom and a Canadian technical program as an automotive mechanic.

[6]         On April 6, 1998, the plaintiff commenced employment with Mercedes-Benz Canada as a technician mechanic. In February 2008, the plaintiff was promoted from technician to service advisor. In August 2013, the plaintiff was promoted from service advisor to assistant service manager.

[7]         The defendant, 1187938 B.C. Ltd., carries on business as Mercedes-Benz Vancouver and operates an automotive dealership in Vancouver, B.C. (the “Dealership”), providing sales and service of new and pre-owned Mercedes-Benz vehicles. The defendant acquired the Dealership on or about December 31, 2018 from Mercedes Benz Canada. At that time, the majority of employees who had been employed with Mercedes Benz Canada, including the plaintiff, were offered continued employment at the Dealership.

[8]         While the defendant operates as an independent business, it is part of the Dilawri Auto Group. The Dilawri Auto Group owns a number of car dealerships, including the defendant.

[9]         The Dealership has a sales department, a parts department, a service department, and administration. Prior to March 2020, the Dealership employed just over 100 employees: 55 in the service department, 38 in the sales department, eight in the parts department and five in administration.

[10]      In March 2020, as a result of the pandemic, the Dealership’s business dropped substantially. While the Dealership was not closed, all but essential service appointments were, for the most part, cancelled by customers.

[11]      As a response to the impacts of the pandemic, the defendant issued a temporary layoff notice to the plaintiff, along with a number of other employees, on March 24, 2020. Both the defendant and plaintiff anticipated this would be a temporary layoff, and the plaintiff would be recalled to work.

[12]      Through to August, the pandemic continued to impact the Dealership, and there continued to be a decrease in vehicle service appointments and related services.

[13]      In July 2020, the defendant provided the plaintiff with an “Employee Earnings Subsidy” in the amount of $500.

[14]      On August 28, 2020, the defendant provided notice to the plaintiff that his employment was permanently terminated, effective immediately. The defendant provided the plaintiff with termination pay in the amount of $13,255.

[15]      Following receipt of the termination letter, the plaintiff took steps to mitigate his loss by seeking alternative employment but deposes he has been unable to secure new employment. Since the termination of his employment by the defendant, his only employment has been with BC Elections, where he earned a total of $4,335.24.

[16]      The plaintiff has received $3,459 in Employment insurance (“EI”) and $14,000 from the Canada Emergency Response Benefit (“CERB”).

[17]      Mark Dube, the general manager of the defendant, deposes that throughout the fall and winter of 2020, he instructed the human resources department of the Dilawri Auto Group to consider whether any positions that became available in the dealerships owned by the Dilawri Auto Group were suitable for the defendant’s former employees.

[18]      On or about March 11, 2021, the Dilawri Auto Group identified that Don Docksteader Motors Ltd. (“Docksteader”), a dealership owned by the Dilawri Auto Group, had a position open for a service advisor. The position was available April 1, 2021.

[19]      Docksteader is located at 8530 Cambie Street, Vancouver, B.C. There is no common management between the Dealership and Docksteader.

[20]      Docksteader was prepared to offer the plaintiff the position of service advisor commencing April 1, 2020, conditional on the settlement of this litigation. In conjunction with the job offer, the defendant was prepared to pay the plaintiff a further payment of $60,000 less required deductions. This was later increased to $79,000. Mr. Dube deposes this payment was calculated based on the income lost by the plaintiff to April 2, 2021, plus any additional shortfall.

[21]      The plaintiff decided not to accept the job as it was conditional on settling this litigation. The plaintiff was also of the view that the Docksteader job was a significant demotion from the position that he held with the defendant. Unless he worked significant overtime hours, the plaintiff would earn less from the Docksteader job than he did at his job with the plaintiff. Because of his childcare responsibilities, the plaintiff is not easily able to work overtime hours. The plaintiff deposes he was told during his interview that he would initially be working with the Volvo brand, and then later would be moved to Subaru when another advisor returned from sick leave.

[22]      The test for granting summary relief is set out in Rule 9-7(15) of the Supreme Court Civil Rules. The court may grant judgment in favour of any party, either on an issue or generally, unless the court is unable to find the facts necessary to decide the issues of fact, or if it would be unjust to decide the issues on the application.

[23]      In Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 229 (BC CA), 36 B.C.L.R. (2d) 202 at 215 (C.A.), a case on the former rule for summary trial, the Court of Appeal set out a number of factors a judge should consider in determining whether a summary trial is appropriate. These factors include the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise because of delay, the cost of a conventional trial in relation to the amount involved, and the course of the proceedings.

[24]      As stated in Gichuru v. Pallai, 2013 BCCA 60, at para. 31:

[25]      The parties agree that the issues can be determined summarily.

[26]      Having reviewed the material filed on this application, I agree with the parties that there is sufficient evidence to find the facts necessary to determine the issues. There is no significant conflict in the evidence and the relevant facts are not disputed. The matter is not of unusual complexity and a summary trial is a proportionate, timely and cost effective way to proceed in this case.

[27]      The plaintiff says he was constructively dismissed when he was placed on a temporary layoff effective March 24, 2020. Although the defendant suggests the plaintiff accepted the temporary layoff, the plaintiff says he did not have a choice as the layoff was imposed upon him. When the plaintiff was laid off he was explicitly told it was a temporary layoff, which was false. The plaintiff’s last day of work was in April 2020 and he has not returned to work at the defendant.

[28]      The defendant takes the position that the plaintiff had a choice in March 2020 to either accept a temporary layoff or allege constructive dismissal. The defendant says that in this case the plaintiff accepted the temporary layoff and therefore cannot now allege he was constructively dismissed at the time.

[29]      In Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, the Court dealt with the issue of whether, and in what circumstances, an employee who is suspended with pay may claim to have been constructively dismissed. The courts below had found that the suspension did not amount to constructive dismissal and that the employee had therefore repudiated the contract when he brought an action for constructive dismissal. The majority of the Court disagreed and found that the employer lacked the authority, either express or implied, to suspend the employee for the reasons given.

[30]      The majority at para. 31, noted that the burden rests on the employee to establish that he has been constructively dismissed. In determining if an employee has been constructively dismissed the question is whether the employer’s acts or conduct indicate it no longer intends to be bound by the contract of employment. There are two branches of the test to determine if the employer’s conduct indicates that it no longer intends to be bound by the contract. The first branch consists of a single unilateral act that breaches an essential term of the contract. The second branch is a series of acts that, taken together, show the employer no longer intends to be bound by the contract.

[31]      The issue of whether an employee has been constructively dismissed is highly fact specific. The court must determine if the changes are reasonable and whether they are within the scope of the employee’s job description or employment contract.

[32]      The majority of the Court at para. 43 and 45, provided the following summary:

[33]      In this case, the defendant’s decision to layoff the plaintiff was unilateral. There is no evidence that the plaintiff consented or acquiesced to being laid off. Although the defendant points to the fact the plaintiff signed the temporary layoff notice, the plaintiff deposes he was asked to sign and return the layoff notice so that human resources could issue him a record of employment. At the time, the plaintiff was told the layoff was temporary and he expected to be called back to work. Instead, on August 30, 2020, the plaintiff received a letter from the defendant advising his employment was permanently terminated.

[34]      The defendant did not provide any evidence that the contract of employment authorized it to unilaterally place employees on temporary layoff.

[35]      The defendant points to the fact that the layoff and termination were the result of the economic fallout of the pandemic.

[36]      While the employer may have been acting in good faith for a legitimate business interest in laying off the plaintiff, the employer’s act had a significant impact on him. The plaintiff was not paid during the layoff, and the layoff was not temporary as promised. He was not called back to work. Rather the defendant sent the plaintiff a letter of termination in August.

[37]      Given the unilateral nature of the layoff and the subsequent termination, it is clear from the defendant’s conduct that it no longer intended to be bound by the contract at the time it laid off the plaintiff. Accordingly, I find the plaintiff was constructively dismissed when he was laid off.

[38]      I have concluded the plaintiff was constructively dismissed as of March 30, 2020 as he was on scheduled vacation from March 22 to March 30.

[39]      The plaintiff takes the positon that the appropriate notice period is 21 to 22 months.

[40]      The defendant submits that 15 to 17 months is the appropriate notice period.

[41]      The purpose of notice is to bridge the gap between dismissal and new employment, and provide the employee with an opportunity to obtain comparable employment: Steven Shinn v. TBC Teletheatre B.C. et al, 2001 BCCA 83 at para. 16.

[42]      In Bardal v. Globe & Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.) at 145, the court set out a non-exhaustive list of factors to be considered in determining reasonable notice:

[43]      In Ansari v. British Columbia Hydro & Power Authority (1986), 1986 CanLII 1023 (BC SC), 2 B.C.L.R. (2d) 33 (S.C.), aff’d (1986), 55 B.C.L.R. (2d) xxxiii (note) (C.A.), the Court adopted the factors set out in Bardal, noting that although not exhaustive they were the most important factors to consider in determining the appropriate notice period. No one factor should be given disproportionate weight.

[44]      As has been noted in some cases, there is a general presumption that after a certain age it becomes progressively more difficult for an employee to obtain new employment: see Rubin v. Home Depot Canada Inc., 2012 ONSC 3053 at para. 17.

[45]      The plaintiff provided the following chart of authorities to support his position that the appropriate period of notice is 21 to 22 months:

[46]      The defendant relies on Bystrom v. Gescan Ltd., [1991] B.C.J. No. 2988 (S.C.); Pastuck v. Browne Motor Co. Ltd., 1991 CanLII 7806 (SK KB), [1991] S.J. No. 233 (Q.B.); and Luchuk v. Starbucks Coffee Canada Inc., 2016 BCSC 830 to support its positon that the appropriate notice period is 15 to 17 months.

[47]      In Bystrom, the plaintiff, who was 52 years old at the time of the trial, was employed as a sales manager when he was terminated after 28 years employment. The notice period was 18 months.

[48]      In Pastuck, the 50 year old plaintiff was employed as a service manager when he was terminated after 29.5 years. The notice period was 18 months.

[49]      In Lychuk, the plaintiff, who was 48 at the time of the trial, was employed as senior regional manager and had been employed for 18 years when he was terminated. The notice period was 18 months.

[50]      For the following reasons I conclude the reasonable period of notice is 22 months.

[51]      At the time of his dismissal, the plaintiff was 52 years old, and was an assistant service manager. His job duties were managerial and included the oversight and supervision of all operations and staff of the service department. However, he did not have independent authority to hire or terminate employees, or to set budget or financial goals for the service department or the Dealership generally. As noted earlier, the plaintiff completed an apprenticeship program in the UK and a Canadian technical program as an automotive technician but has no formal training beyond that.

[52]      The defendant points to the fact the plaintiff has applied for at least 9 comparable positions. The defendant argues the prevalence of those positions suggests a lower notice period is warranted.

[53]      However, there is evidence from the defendant that the automotive industry is depressed because of the pandemic. The plaintiff deposes that the results of his job search have been disappointing. As a result, I cannot agree with the defendant that a lower notice period is warranted.

[54]      After considering the factors set out in the case law, as well as the submissions and cases provided, and I have concluded that the plaintiff was entitled to a notice period of 22 months.

[55]      The defendant takes the position that the plaintiff has failed to reasonably mitigate his losses, and any notice period should not extend beyond April 1, 2021, the date the plaintiff could have commenced employment with Docksteader.

[56]      The plaintiff takes the position that the defendant has failed to satisfy the onus on it of demonstrating he has failed to mitigate his damages.

[57]      As conceded by the defendant, the burden is on the employer to prove that the plaintiff has failed to mitigate his loss arising from the termination of employment.

[58]      In Coutts v. Brian Jessel Autosports Inc., 2005 BCCA 224 at para. 22, the court adopted the following definition of the duty to mitigate set out in Forshaw v. Aluminex Extrusions Ltd. (1989), 1989 CanLII 234 (BC CA), 39 B.C.L.R. (2d) 140 (C.A.) at 143-144:

[59]      In order for the defendant to satisfy the onus of establishing that the plaintiff failed to mitigate, it must show not only that the plaintiff failed to take steps to mitigate but also that if the plaintiff had taken those steps he could likely have found equivalent employment: Smith v. Aker Kvaerner Canada Inc. and Kvaerner Power Inc., 2005 BCSC 117 at para. 32, citing Petersen v. Labatt Breweries of British Columbia (1996), 1996 CanLII 1059 (BC SC), 25 C.C.E.L. (2d) 241 (B.C.S.C.).

[60]      The defendant can meet this onus by providing evidence of actual alternative job offers or evidence that, had the employee taken reasonable steps to mitigate, he would have been likely to obtain comparable or alternate employment: Carlysle-Smith v. Dennison Dodge Chrysler Ltd. (1997), 1997 CanLII 972 (BC SC), 33 C.C.E.L. (2d) 280 (B.C.S.C.). In Carlysle-Smith, the court reduced the period of notice for the failure of the employee to follow up on a specific employment lead.

[61]      As noted earlier, the Docksteader and the defendant are owned by Dilawri Auto Group. I have been provided with a number of cases where an employee has refused an offer of re-employment and a failure to mitigate argument was rejected.

[62]      In Cox v. Robertson, 1999 BCCA 640, an employer’s failure to mitigate argument was rejected. The employer had offered the employee re-employment on the same terms until she found alternate employment. The Court summarized the law at para. 11:

[63]      In Fredrickson v. Newtech Dental Laboratory, 2015 BCCA 357, the court reversed the finding that the plaintiff had failed to mitigate by refusing to accept an offer of re-employment. The employer had offered to re-employ the employee and pay her unpaid wages prior to knowing of the commencement of the action. The finding at trial that the employee had acted unreasonably in failing to accept the offer was reversed on the basis that the trial judge had failed to accord significance to the incomplete nature of the offer, and failed “to reflect the intangible element of mutual trust, commensurate with the nature of the employment, that flows like a current in the employment relationship”. (para.23)

[64]      In Sifton v. Wheaton Pontiac Buick GMC (Nanaimo) Ltd., 2010 BCCA 541 at para. 26, the Court discussed the duty of mitigation stating:

[65]      In Sifton at para. 35, the court dealt with the argument that the elimination of the employee’s position was caused by economic conditions beyond the employer’s control. The Court held that while economic conditions may have resulted in the elimination of the position and the demotion of the employee, the consequences of such changed circumstances are not to be visited on the employee. In Sifton, the court upheld the trial judge’s finding that it was not unreasonable for the employee to reject the offer of re-employment.

[66]      I was provided with two other cases where a failure to mitigate argument was rejected, namely, Fasenko v. Flag Chevrolet-Geo-Oldsmobile Ltd., [1994] B.C.J. No. 1583 (S.C.); and Fillmore v. Hercules SLR Inc., 2017 ONCA 280.

[67]      I have also been provided with cases where there was a finding of a failure to mitigate, including Carlyle-Smith; Hart v. EM Plastic & Electric Products Ltd., 2008 BCSC 228; Tajarobi v. Corporate Couriers, 2006 BCSC 454; and Evans v. Teamsters, Local 31, 2008 SCC 20.

[68]      In Hart, the court found that there was a failure to mitigate based on evidence that the employee was offered two comparable jobs within two months to his dismissal but chose not to accept them because he wanted to change careers.

[69]      The plaintiff points to the fact that he has sought alternative employment but has to date not been able to obtain a new job. The plaintiff asserts it was reasonable for him not to accept the Docksteader job.

[70]      The plaintiff deposes there were several reasons for deciding not to accept the Docksteader job offer, including:

[71]      At the time he refused the job offer, the plaintiff did not have all the information, in particular, the amount of bonus he would have received over the notice period. The plaintiff anticipated receiving a bonus and the defence settlement offer was below what he would have made based on his 2019 income from employment.

[72]      The defendant takes the position that the plaintiff’s failure to accept the Docksteader offer constitutes a complete failure to mitigate and his claim for damages should cease on March 31, 2021.

[73]      The defendant asserts it was unreasonable for the plaintiff to have refused the offer. The defendant says it presented an offer that:

[74]      The defendant asserts the critical element found in Evans was that the employee not be forced to work in an atmosphere of hostility, embarrassment or humiliation. The defendant submits this is not a consideration in this case as Docksteader and the Dealership do not share common management.

[75]      It is clear from the case law that when an employer offers an employee the chance to mitigate damages by returning to work for it the central issue is whether a reasonable person would accept the opportunity.

[76]      Although the defendant asserts that the job offer was made in good faith, there is evidence that the job was posted on February 5, 2021, but not offered to the plaintiff until after the plaintiff’s application for summary trial was delivered to the defence on March 3, 2021.

[77]      In addition, the plaintiff points to the fact Dilawri Auto Group also posted a local Mercedes-Benz service advisor job on January 28, 2021, which was not offered to him. As a result, I find that the plaintiff’s concerns about the good faith of the offer are reasonable.

[78]      Further, the Docksteader job is a demotion for the plaintiff. Not only would he not earn as much on an hourly basis, but the job does not provide any bonuses. In order to make the same amount he made with the defendant, the plaintiff would have to work significant overtime hours.

[79]      The defendant points to the evidence that no bonuses were paid by the defendant in 2020 or 2021 and that as a result the difference in the income the plaintiff would earn at Docksteader is not that much less than the income he earned at the defendant. However, the information regarding the bonuses was not provided to the plaintiff at the time the offer was made.

[80]      While I agree with the defendant that the plaintiff is not entitled to perfect mitigation in terms of the same salary and duties, all of the circumstances, including the non-tangible elements of the situation must be included in the evaluation.

[81]      Here the offer of employment was presented to the plaintiff after he commenced litigation and served his application for summary trial on the defendant. The defendant and Docksteader are both owned by the Dilawri Auto Group. One of the conditions was that the plaintiff sign a release of his claim.

[82]      In Fillmore at para. 10-11, the Ontario Court of Appeal agreed that there is no obligation on an employee to risk handing the defendant a full and final release “through the back door and under the guise of mitigation efforts”.

[83]      In my opinion, that is similar to the situation here. I agree that the plaintiff should not be required to compromise his legal claim as part of his duty to mitigate.

[84]      In my view, when all of the circumstances, including the intangible element of mutual trust, commensurate with the nature of the employment, are considered, it was not unreasonable for the plaintiff to reject the Docksteader job offer.

[85]      The evidence is that the plaintiff has been diligent in his search for alternate employment since his dismissal. As a result, I have concluded the defendant has not discharged the onus on it of establishing the plaintiff has failed to mitigate his damages.

[86]      At the time of termination, the plaintiff’s remuneration and benefits were as follows:

[87]      The plaintiff takes the position that the damages should be based on his 2019 T4s which demonstrated a total remuneration of $99,563.81. While conceding that the exact amount of the bonus he would have earned had he been provided with appropriate working notice is somewhat unclear, the plaintiff submits the best evidence is that the service department’s performance in 2020 was similar to 2019. The plaintiff says the appropriate measure of the bonus is what the plaintiff earned in 2019. Further, the plaintiff submits that the payments he received from CERB should not be deducted from any damage award.

[88]      The defendant takes the position that the damages should be based on the plaintiff’s salary of $85,800 per year. The defendant agrees that prior to the pandemic the plaintiff earned approximately $10,000 to $12,000 per year in quarterly bonuses. However, the defendant’s evidence is that no bonuses were paid since the onset of the pandemic and no bonuses are anticipated in 2021. The defendant submits the payments the plaintiff received from CERB should be deducted.

[89]      The governing principle in damages for wrongful dismissal is that the employee should be put in the economic position he would have been had reasonable notice been given. There are exceptions to the strict application of this principle of contract law: IBM Canada Limited v. Waterman, 2013 SCC 70 at para. 2‑3, 16.

[90]      In Waterman, the Court dealt with the issue of when a collateral benefit or “compensating advantage” received by a plaintiff should be deducted from damages otherwise payable for a wrongful dismissal. The case concerned whether pension benefits should be deducted from damages for wrongful dismissal.

[91]      The Court found that the pension benefits in issue were not deductible because they were a form of deferred compensation for the employee’s service and were not intended to compensate for wage loss. The court a para. 32, stated that in determining the question of whether a benefit that would result in compensation to the employee beyond his or her actual loss should be deducted, it must first be determined if the benefit would not have been received “but for” the employer’s breach, and whether the benefit is intended to indemnify the type of loss arising from the breach.

[92]      In Waterman at para. 44- 47 and 56, the court discussed the private insurance exception, and distinguished two cases in which the exception was not applied to sick leave benefits and disability payments. Generally, benefits received from private insurance payments are not deducted from damage awards. In the two cases where the benefits were deducted it was found that the benefits were intended to be an indemnity for the type of loss that resulted from the employer’s breach but the employee had not contributed in order to obtain the entitlement: Sylvester v. British Columbia, 1997 CanLII 353 (SCC), [1997] 2 S.C.R. 315; and Ratych v. Bloomer, 1990 CanLII 97 (SCC), [1990] 1 S.C.R. 940.

[93]      The only authority I have been provided with dealing with CERB payments is the case of Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998. The court at para. 21 found that the CERB paid “was considerably below the base salary previously earned by the plaintiff to say nothing of his lost commission income”. The plaintiff received a base salary of $60,000 but his compensation for his last year of employment was $145,186.30, including commissions. The court declined to deduct the CERB payments, finding that it would not be equitable to reduce the employee’s entitlement to damages given his limited entitlement from the employer post-termination relative to his actual pre-termination earnings.

[94]      The first issue is what income should be used in determining damages. If the plaintiff had been given regular working notice, he would have been entitled to his regular salary and benefits.

[95]      Although the plaintiff submits his damage award should be based on his 2019 income tax return, the evidence is his 2019 income included payment of a bonus. The uncontroverted evidence is that the defendant did not pay bonuses in 2020 and it is anticipated there will be no bonuses in 2021 as a result of the economic conditions caused by the pandemic.

[96]      As a result, I have concluded that the damages should be based on the plaintiff’s annual salary of $85,800 per year. The base salary amounts to $7,150 per month of lost income.

[97]      As set out, I have concluded the plaintiff is entitled to a 22 month notice period. I have been advised that since the trial the plaintiff has obtained employment. If counsel cannot agree on the impact of the new employment on the notice period they may make further submissions in writing.

[98]      The plaintiff’s income earned from BC Elections and the payments he received from the defendant should be deducted from any amount payable by the defendant to the plaintiff. Those amounts total $18,090.24.

[99]      The EI benefits should not be deducted. Section 45 of the Employment Insurance Act, S.C. 1996, c. 23, requires a claimant to repay any unemployment benefits if an employer becomes liable to pay their earnings.

[100]   The plaintiff received $14,000 in CERB payments in 2020. The CERB payments raise a compensating advantage issue. If the CERB payments are not deducted the plaintiff would be in a better position than he would have been if there had been no breach of the employment contract.

[101]   But for his dismissal, the plaintiff would not have received the benefit. The nature of the benefit is an indemnity for the wage loss caused by the employer’s breach of contract. There is no evidence that the plaintiff contributed to obtain the benefit by paying for it directly or indirectly.

[102]   In my view, this case is distinguishable from Iriotakis where the CERB payments were not deducted. In Iriotakis, the plaintiff was terminated after 28 months. The court determined the reasonable notice period was three months, and determined that on the specific facts of the case, particularly the disparity between the payments and the employee’s loss of salary and significant loss of commission, it would not be equitable to reduce his entitlement to damages by the CERB payments. In Iriotakis, the employment contract provided the plaintiff was not entitled to commission income upon termination. The evidence in Iriotakis was that the plaintiff’s salary on which his past wage loss was based amounted to less than half of his actual income.

[103]   In this case, the plaintiff’s damages per month are based on the income he would have earned if he had continued to work during the reasonable notice period. In other words, the plaintiff will be compensated for the income he would have lost. He did not suffer additional losses due a loss in commission income. As a result, there is not a large disparity between the plaintiff’s actual loss and the amount of damages he will receive.

[104]   In Iriortakis the award for the lost wages was reduced by more than half as a result of the plaintiff’s employment contract, and retaining the CERB payments would not have put the plaintiff in a better economic position than he would have been but for the breach. In this case, if the CERB payments are not deducted the plaintiff will be in a better economic condition than he would otherwise be.

[105]   The CERB payments are not private insurance, and neither the employer nor the employee contributed to them. As a result, they are not delayed compensation or part of the plaintiff’s earnings. There is no evidence that the plaintiff will have to repay the CERB.

[106]   The CERB payments were intended to be an indemnity for the type of loss resulting from the employer’s breach but the employee had not contributed in order to obtain the entitlement. In my view, this is similar to the situation in Sylvester and Ratych, where the benefits were deducted as the employee had not contributed in order to be entitled to the benefit.

[107]   As a result, I see no basis to depart from the general rule that contract damages should place the plaintiff in the economic position he would have been in had the defendant performed the contract.

[108]   Having considered the case law and the evidence, I have concluded the CERB benefits of $14,000 should be deducted from the award of damages.

[109]   I find that the reasonable notice period is 22 months. The defendant has not established the plaintiff failed to mitigate his damages in not accepting the Docksteader job. The plaintiff is entitled to damages based on his base salary of $85,800 per year or $7,150 per month, less the deductions set out.

[110]   As indicated, the plaintiff has obtained new employment during the notice period. The parties are at liberty to make further submissions if they cannot agree on the impact his new employment has on the award of damages.

[111]   The plaintiff is also entitled to his costs at scale B.