Jury Instructions in a Wrongful Dismissal Case:

In Thom v Canada Safeway ( 2014 BCSC 2697) Justice Saunders gave a mid trial ruling on a number of issues involving his charge to the jury and what the lawyers could and could not say.

Reasonable Notice :

[11] In the present case, I do perceive a risk that the jury may exceed the

maximum, without guidance. Mr. Thom was not in the upper levels of corporate

management. He was, however a store manager, and in previous postings had been

given responsibility for one of the defendant’s largest volume stores in Alberta. He

had 38 years of employment with the defendant, and was 55 years of age. In my

view, the jury, left to its own devices as to what constitutes reasonable notice, may

very well see fit to award Mr. Thom a notice period equal to or greater than the

rough upper limit.

[12] Particularly in light of the agreement of counsel, I view it appropriate that a

specific instruction on the upper limit of the notice period be given to the jury.

Counsel, in their closing addresses, may advise the jury only that the jury is to set a

period they consider to be reasonable in the circumstances, subject to what

instructions I will be giving them as to the law. Counsel may refer to or anticipate the

court instructing the jury as to what the appropriate range might be. Counsel will be

free to emphasize those circumstances of this case which they say should militate in

favour of a higher or lower reward; for example, the plaintiff may ask the jury to note

Mr. Thom’s years of service and his age; the defendant may ask the jury to note that

Mr. Thom, was not in upper corporate management, i.e. not at the rank of vice

president, or higher.

[13] The jury will be instructed that other than in exceptional circumstances, the

rough upper limit of the notice period in cases involving managers with some

seniority is a period of 18 to 24 months.

[14] What is more troubling in this case is the possibility – though I do not think it

so likely as an uninstructed jury exceeding the upper limit – of the jury straying down

below the floor, or the lower end of the range. In that regard, I have been provided

with no appellate authority as to what would be regarded as an award sufficiently low

to attract appellate scrutiny. Plaintiff’s counsel submits that an instruction may be as to a

lower end of 12 months; defence counsel has indicated he does not

object to a soft instruction – my phrase – on that lower end being conveyed to the


[15] Accordingly, what I am going to do with regard to the low end of the range is

take a path informed by the decision in a pre-Ter Neuzen case, Foreman v. Foster,

2001 BCCA 26, and by the recent decision of Bryk J. in Riedle v. McCaskill, 2013

MBQB 222. I am going to suggest to the jury that they may wish to consider an

award within the range of 12 to 24 months, but that I am giving them this range for

their guidance and assistance, and that ultimately the determination of the notice

period, subject to what I have said about there being a rough upper limit, is their exclusive function.

Aggravated Damages :

I will instruct the jury that to succeed in the claim for aggravated damages, the plaintiff must

have proven

on the balance of probabilities that he has suffered mental distress due to the

defendant having engaged in conduct during the course of the dismissal which is

unfair or in bad faith by being, for example, untruthful, misleading, or unduly

insensitive, or any similar bad faith conduct.

[19] The jury will be instructed that they must find a causal connection between

the plaintiff’s mental distress due to the wrongful conduct they find the employer

engaged in in regard to the manner of the constructive dismissal, and that mental

distress arising from the constructive dismissal by itself is not compensable.

[20] The defendant has asked that there be illustrations given as to conduct which

is not compensable, e.g. that it is not enough to find that an employer has been cold;

or another phrase used in the case law is, “simply shabby”. In my view this additional

instruction is unnecessary. Counsel are free to suggest to the jury, in their

submissions, any particular adjectives or characterizations they view as appropriate,

but in my view the instruction stated above is sufficient, and to elaborate or qualify it

further would possibly cause confusion.

[21] The jury will also be instructed that any aggravated damages they may award

should be such as to compensate the plaintiff for all losses that these parties, as

employer and employee, would reasonably have contemplated would flow from the

employee’s mental distress. They will be instructed that it is open to them to

consider whether this includes payment for his suffering and loss of enjoyment of life

on account of his depression and anxiety, and any pecuniary loss or loss of income

that he may have suffered on account of his ability to begin seeking work being

delayed during or out past the end of the notice period.

Deductibility of Disability Benefits :

The plaintiff in this action received disability benefits for at least part of the time that would be covered by the notice period. The Plaintiff wanted the issue of deductibility to be decided by the jury. The judge said no, that was his job. This is what he said ;

Deductibility of Disability Payments

[30] The plaintiff invites me to put to the jury that there is some evidence upon

which they could conclude that the parties intended the contract to be one in which

both disability benefits and payment in lieu of notice would be provided in the event

of a disability. I am urged to find that there is evidence from which the jury could

conclude that Mr. Thom took less salary, and notionally or indirectly contributed to

the disability benefits premiums. Reliance is placed, among other cases, on the

comments of Sproat J.in Fedorowicz v. Pace Marathon Motor Lines Inc. (2006), 48

C.C.E.L. (3d) 260 (Ont. S.C.J.) [Fedorowicz] at para. 110(b). I note that the Supreme

Court of Canada has since ruled, in IBM Canada Limited v. Waterman, 2013 SCC

70 [Waterman], that the plaintiff’s contributions are a relevant consideration,

although the basis is debatable (para. 76).

[31] However, in the present case I find no evidence upon which a jury could

reach the conclusion as to the contractual intent that the plaintiff contends for. If

anything, the evidence points most clearly to a situation analogous to that found in a

decision of this Court, Morris v. ACL Services Ltd., 2014 BCSC 1580 – see

para. 137 therein. Mr. Thom did not testify that the existence of the disability benefits

package was ever even a consideration in his decision to seek or to continue

employment with Safeway. The jury cannot be asked to engage in conjecture or

speculation as to what Mr. Thom considered the consideration for entering into the

employment relationship to be.

[32] This absence of evidence on the question of the contract’s terms leaves the

plaintiff with the default position, as I have termed it, expressed in the Ontario

decisions in Sills v. Children’s Aid Society (2001), 8 C.C.E.L. (3d) 232 (Ont. C.A.)

and McNamara v. Alexander Centre Industries Ltd. (2001), 8 C.C.E.L. (3d) 204

(Ont. C.A.); and as described by Sproat J. at paras. 108 and 111 of Fedorowicz: the

supposed “common sense” proposition that payment in lieu of notice and severance

payments serve two completely different purposes. That reasoning, in my respectful

view, is completely at odds with the Supreme Court’s decision in Sylvester v. BritishColumbia, [1997] 2 S.C.R. 315, at paras. 17 – 20, as affirmed and elaborated upon in

Waterman, see esp. at paras. 61 and 75.

[33] The only reasonable conclusion that can be drawn from the evidence is that

short-term and long-term disability benefits were to provide indemnity against

income lost. There is an overlap between those benefits and the severance payment

which is in substitute of the income that would have been paid had no notice been

given, for the duration of the notional or actual notice period. There is no basis for

the jury to infer a contractual intention that the employee receive both disability

benefits and severance. Accordingly, the jury, in respect of the notice period, will be

instructed that they are to determine the notice period without reference to

Mr. Thom’s medical condition and without reference to or consideration of the

disability benefits that have been paid to him.

[34] The jury will be advised that how short-term and long-term benefits factor into

the notice period has been discussed by myself and counsel, and that once they

give their verdict, counsel and I will make any adjustments that are required. They

will be told that the issue of the disability benefits need not and should not concern