In Ensign v Price’s Alarm ( 2009) Ltd ( 2017 BCSC 2137) Kent J. had a situation where a 63 year old Medical Alert Advisor with 12.5 years service making $30,000/year was terminated without cause. After paying only 8 weeks termination pay and then receiving a demand letter from the Plaintiff, the Defendant made a series of 3 offers of inferior employment with various conditions attached, which the Plaintiff rejected . The Defendant then tried to use these rejections to support an argument that the Plaintiff had failed to mitigate his damages.
Not only did the Court find that the Plaintiff’s rejection of these job offers was well founded and that he had not failed to mitigate his damages, but also that the actions of the employer were so agressive that an award of $25,000 for aggravated damages, in addition to the 12 month notice period was warranted.
This is what the judge had to say:
The evidence of Mr. and Mrs. Ensign on these matters is uncontroverted and while it is uncorroborated by physicians or other third parties, I nevertheless accept it in its entirety. The defendant was not truthful and candid with Mr. Ensign about the reasons for his termination. It had the benefit of legal counsel before Mr. Ensign’s working notice period had expired and, given the absence of any written employment agreement limiting notice, must be taken to have known that eight weeks’ notice was woefully inadequate. Instead of righting the wrong by reinstatement or offering an alternative position with appropriate encouragement, training and remuneration “top ups” or guarantees for the ensuing 10 months, the defendant embarked on aggressive and unmeritorious defence tactics that it must have known would cause financial stress and considerable worry on the part of Mr. Ensign. There can be no doubt that this is the type of conduct and impact upon a wrongfully dismissed employee that an award of aggravated damages is designed to address.
Whoever said that the ” best defence is an offence” was wrong. This is a prime example of how some Courts will treat overly aggressive litigation tactics that cause real damage to their litigation opponents.